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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations
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to significantly affect FDIC-supervised State savings associations.
The final rule would also amend the FDICs regulations that establish administrative procedures for prompt corrective action in 12 CFR 308.200
through 308.204 to make them applicable to all FDIC-supervised institutions, including State savings associations. As discussed previously, these changes would not change the required procedures related to prompt corrective action that are applicable to State savings associations since the requirements in subpart Y are equivalent to requirements in the FDICs existing regulations; therefore this aspect of the rule is unlikely to substantively affect FDIC-supervised State savings associations.
Finally, the rule revises 12 CFR
308.202 to clarify the procedures for delaying a hearing if an institution is reclassified based on criteria other than capital. The FDICs regulation currently states that if a hearing is scheduled, it will be held within 30 days of the request unless the institution requests a later date. The regulations in 390.457
state that a hearing will be held within 30 days of the request unless the FDIC
allows further time at the request of the institution. The FDIC is adopting the language from 390.457 in its own regulations since 390.457 clarifies that requests for an extension will not be automatically granted. This aspect of the rule will pose no change for the 35
FDIC-supervised State savings associations. The FDIC believes that adopting the language from 390.457
should further clarify for State nonmember institutions that requests for an extension will not automatically be granted, however, this change is unlikely to pose any substantive effects on State nonmember institutions.
Since the prompt corrective action directive provisions in part 390, subpart Y, are substantively similar to existing regulations for state nonmember banks found in part 308, subpart Q, the FDIC
does not believe that rescission of 390.456 through 390.459 would have any substantive effects on FDICsupervised State savings associations.
VII. Alternatives The FDIC believes that the amendments represent the most appropriate option for covered institutions and, at this time, has not identified significant alternatives to the rule in its current form. As discussed previously, the Dodd-Frank Act transferred certain powers, duties, and functions formerly performed by the OTS to the FDIC. The FDICs Board reissued and redesignated certain
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transferred regulations from the OTS but noted that it would evaluate them and might later incorporate them into other FDIC regulations, amend them, or rescind them, as appropriate. The FDIC
has evaluated the existing regulations relating to prompt corrective actions, including part 308, subpart Q, and part 390, subpart Y. The FDIC has available the status quo alternative of retaining the current regulations but is not choosing to do so because it would be needlessly duplicative for substantively similar regulations regarding prompt corrective action directives for banks and State savings associations to be located in different locations within the Code of Federal Regulations. The FDIC
believes it would be redundant and potentially confusing for FDICsupervised institutions to continue to refer to these separate sets of regulations and is therefore amending and streamlining them in accordance with this final rulemaking.
VIII. Regulatory Analysis and Procedure A. The Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act of 1995
PRA,18 the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget OMB control number.
The final rule rescinds and removes from FDIC regulations part 390, subpart Y. With regard to part 308, subpart Q, the final rule amends 308.200
through 308.204 to clarify that State savings associations, as well as State nonmember banks and foreign banks having insured branches are all subject to part 308, subpart Q. The final rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
B. The Regulatory Flexibility Act The Regulatory Flexibility Act RFA, requires that, in connection with a notice of final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the final rule on small entities.19 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short explanatory 18 44
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statement in the Federal Register together with the rule. The Small Business Administration SBA has defined small entities to include banking organizations with total assets of less than or equal to $600 million.20
Generally, the FDIC considers a significant effect to be a quantified effect in excess of 5 percent of total annual salaries and benefits per institution, or 2.5 percent of total noninterest expenses. The FDIC believes that effects in excess of these thresholds typically represent significant effects for FDICsupervised institutions. For the reasons provided below, the FDIC certifies that the rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.
As of June 30, 2020, the FDIC
supervised 3,270 depository institutions,21 of which 2,492 were considered small entities for the purposes of RFA.22 There are 33 State savings associations that are small entities for the purposes of RFA, or 1.3
percent of all depository institutions considered small entities.23 As discussed previously, the rule rescinds 12 CFR part 390, subpart Y, which includes the following: 390.456, which outlines administrative procedures for issuing a directive to take prompt corrective action against a State savings association; 390.457, which outlines administrative procedures for reclassifying a State savings association based on criteria other than capital;
390.458, which outlines administrative procedures related to prompt corrective action that require a State savings association to terminate the employment of a director or officer;
and 390.459, which outlines administrative procedures the FDIC may take to seek compliance with prompt corrective action directives. The FDIC
has determined that these sections of 12
CFR part 390 are equivalent to regulations related to prompt corrective 20 The SBA defines a small banking organization as having $600 million or less in assets, where a financial institutions assets are determined by averaging the assets reported on its four quarterly financial statements for the preceding year. See 13
CFR 121.201 as amended by 84 FR 34261, effective August 19, 2019. SBA counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its domestic and foreign affiliates. See 13 CFR 121.103. Following these regulations, the FDIC uses a covered entitys affiliated and acquired assets, averaged over the preceding four quarters, to determine whether the FDIC-supervised institution is small for the purposes of RFA.
21 FDIC-supervised institutions are set forth in 12
U.S.C. 1813q2.
22 FDIC Call Report data, June 30, 2020.
23 Id.

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