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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Proposed Rules
efforts; 1 as part of a capital raise,2
including pursuant to an enforcement action; 3 and to facilitate a conversion from a mutual to stock form of ownership.4 As more fully described below, generally, banks and savings associations are exempt from the securities disclosure requirements of the Securities Act of 1933 Securities Act,5
although in certain circumstances State securities laws do require compliance with all or portions of these requirements. The issuance of securities by banks and savings associations is, however, subject to the antifraud provisions of the Federal securities laws, which require full disclosure of material facts necessary for an investor to make a determination to invest in securities offered for sale.6 From a safety and soundness perspective, serious capital loss or litigation could result if bank or savings association securities are sold in violation of the antifraud provisions of the Federal securities laws.
A securities issuance may require a registration statement and prospectus. If a securities issuance is exempt from registration or prospectus requirements, the issuer may be required to provide an offering document that contains varying informational and financial disclosures, depending on the exemption provision.
The offering document can be used to comply with the antifraud provisions of the Securities Act. As more fully described below, the FDIC has not issued regulations regarding the content of registration statements and prospectuses, but rather, historically has provided supervisory guidance for FDIC-supervised institutions in the form of a policy statement to describe principles for preparing offering circulars.7 Chief among these principles 1 See
12 U.S.C. 1815; 12 CFR part 303, subpart B.
12 U.S.C. 1831o; 12 CFR part 324.
3 See 12 U.S.C. 1818.
4 See 12 CFR 333.4; 12 CFR part 303, subpart I.
5 Public Law 7322, 48 Stat. 74, 15 U.S.C. 77a et seq. Holding companies for banks and thrifts are not exempt from the Securities Act. As of June 30, 2020, of the 3,264 insured institutions supervised by the FDIC, 2,637 have holding companies and 627 do not.
6 See 15 U.S.C. 77qc, which makes it unlawful in connection with the offer of a security: a To employ any device, scheme, or artifice to defraud;
b To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or c To engage in any act, practice, or course of business which operates or would operate as a fraud of deceit upon any person, in connection with the purchase or sale of any security.
7 See, e.g., FDIC Statement of Policy, Use of Offering Circulars in Connection with Public Distribution of Bank Securities, September 5, 1996, 61 FR 46087, Sept. 5, 1996 available at
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has been to refer FDIC-supervised institutions to Securities and Exchange Commission SEC and other agency regulations regarding the content of registration statements and prospectuses to assist them in complying with the antifraud provisions of the Securities Act. For the reasons described below, the FDIC is proposing to rescind the 1996 Statement of Policy and issue a regulation governing the securities offering disclosure requirements for FDIC-supervised institutions.
B. The Dodd-Frank Act The Dodd-Frank Act,8 signed into law on July 21, 2010, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311
of the Dodd-Frank Act,9 the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency OCC, as to Federal savings associations, and the Board of Governors of the Federal Reserve System FRB, as to savings and loan holding companies. Section 316b of the Dodd-Frank Act 10 provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials issued, made, prescribed, or allowed to become effective by the OTS, providing that, if such materials were in effect on the day before the transfer date, they continue in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.
Pursuant to section 316c of the Dodd-Frank Act,11 on June 14, 2011, the FDICs Board of Directors FDIC Board approved a List of OTS Regulations to be Enforced by the OCC and the FDIC
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.
This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.12
Although section 312b2BiII of the Dodd-Frank Act 13 granted the OCC
rulemaking authority relating to both State and Federal savings associations, https www.fdic.gov/regulations/laws/rules/5000500.htmlfdic5000statementop.
8 Public Law 111203, 124 Stat. 1376 2010.
9 12 U.S.C. 5411.
10 12 U.S.C. 5414b.
11 12 U.S.C. 5414c.
12 76 FR 39246 July 6, 2011.
13 12 U.S.C. 5412b2BiII.

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nothing in the Dodd-Frank Act affected the FDICs existing authority to issue regulations under the Federal Deposit Insurance Act FDI Act 14 and other laws as the appropriate Federal banking agency or under similar statutory terminology. Section 312c1
of the Dodd-Frank Act revised the definition of appropriate Federal banking agency contained in section 3q of the FDI Act,15 to add State savings associations to the list of entities for which the FDIC is designated as the appropriate Federal banking agency.
As a result, when the FDIC acts as the designated appropriate Federal banking agency or under similar terminology for State savings associations, as it does here, the FDIC is authorized to issue, modify, and rescind regulations involving such associations.
As noted, on June 14, 2011, operating pursuant to this authority, the FDIC
Board reissued and re-designated certain transferring regulations of the former OTS. These transferred OTS
regulations were published as new FDIC
regulations in the Federal Register on August 5, 2011.16 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.17
C. The Securities Act The Securities Act generally exempts securities issued by banks from its provisions.18 Similarly, securities issued by certain savings institutions supervised and examined by State or Federal regulators with examination and supervision authority are also exempt from most Securities Act requirements.19 However, bankand 14 12

U.S.C. 1811 et seq.
U.S.C. 1813q.
16 76 FR 47652 Aug. 5, 2011.
17 Id.
18 See 15 U.S.C. 77ca2 Except as hereinafter expressly provided, the provisions of the Securities Act shall not apply to any of the following classes of securities: . . . 2 Any security issued or guaranteed by . . . any bank; . . . or any interest or participation in any common trust fund or similar fund that is excluded from the definition of the term investment company;
19 See id. at 77ca5A, Except as hereinafter expressly provided, the provisions of the Securities Act shall not apply to any of the following classes of securities: 5 Any security issued A by a savings and loan association, building and loan association, cooperative bank, homestead association, or similar institution, which is supervised and examined by State or Federal authority having supervision over any such institution . . .; see Public Law 91547, sec.
27c, 84 Stat. 1434 1970 requiring that the institution be supervised and examined by a State 15 12

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