Securities of Nonmember Insured Banks, 44270-44273 [05-15107]
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
(ii) Violations of the Home Ownership
and Equity Protection Act;
(iii) Violations of section 5 of the
Federal Trade Commission Act;
(iv) Violations of section 8 of the Real
Estate Settlement Procedures Act; and
(v) Violations of the Truth in Lending
Act provisions regarding a consumer’s
right of rescission.
(2) In determining the effect of
evidence of practices described in
paragraph (c)(1) of this section on the
bank’s assigned rating, the FDIC
considers the nature, extent, and
strength of the evidence of the practices;
the policies and procedures that the
bank (or affiliate, as applicable) has in
place to prevent the practices; any
corrective action that the bank (or
affiliate, as applicable) has taken or has
committed to take, including voluntary
corrective action resulting from selfassessment; and any other relevant
information.
I 5. In Appendix A to part 345, revise
paragraph (d) to read as follows:
Appendix A to Part 345—Ratings
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(d) Banks evaluated under the small bank
performance standards—(1) Lending test
ratings.
(i) Eligibility for a satisfactory lending test
rating. The FDIC rates a small bank’s lending
performance ‘‘satisfactory’’ if, in general, the
bank demonstrates:
(A) A reasonable loan-to-deposit ratio
(considering seasonal variations) given the
bank’s size, financial condition, the credit
needs of its assessment area(s), and taking
into account, as appropriate, other lendingrelated activities such as loan originations for
sale to the secondary markets and
community development loans and qualified
investments;
(B) A majority of its loans and, as
appropriate, other lending-related activities,
are in its assessment area;
(C) A distribution of loans to and, as
appropriate, other lending-related activities
for individuals of different income levels
(including low- and moderate-income
individuals) and businesses and farms of
different sizes that is reasonable given the
demographics of the bank’s assessment
area(s);
(D) A record of taking appropriate action,
when warranted, in response to written
complaints, if any, about the bank’s
performance in helping to meet the credit
needs of its assessment area(s); and
(E) A reasonable geographic distribution of
loans given the bank’s assessment area(s).
(ii) Eligibility for an ‘‘outstanding’’ lending
test rating. A small bank that meets each of
the standards for a ‘‘satisfactory’’ rating
under this paragraph and exceeds some or all
of those standards may warrant consideration
for a lending test rating of ‘‘outstanding.’’
(iii) Needs to improve or substantial
noncompliance ratings. A small bank may
also receive a lending test rating of ‘‘needs to
improve’’ or ‘‘substantial noncompliance’’
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depending on the degree to which its
performance has failed to meet the standard
for a ‘‘satisfactory’’ rating.
(2) Community development test ratings for
intermediate small banks—(i) Eligibility for a
satisfactory community development test
rating. The FDIC rates an intermediate small
bank’s community development performance
‘‘satisfactory’’ if the bank demonstrates
adequate responsiveness to the community
development needs of its assessment area(s)
through community development loans,
qualified investments, and community
development services. The adequacy of the
bank’s response will depend on its capacity
for such community development activities,
its assessment area’s need for such
community development activities, and the
availability of such opportunities for
community development in the bank’s
assessment area(s).
(ii) Eligibility for an outstanding
community development test rating. The
FDIC rates an intermediate small bank’s
community development performance
‘‘outstanding’’ if the bank demonstrates
excellent responsiveness to community
development needs in its assessment area(s)
through community development loans,
qualified investments, and community
development services, as appropriate,
considering the bank’s capacity and the need
and availability of such opportunities for
community development in the bank’s
assessment area(s).
(iii) Needs to improve or substantial
noncompliance ratings. An intermediate
small bank may also receive a community
development test rating of ‘‘needs to
improve’’ or ‘‘substantial noncompliance’’
depending on the degree to which its
performance has failed to meet the standards
for a ‘‘satisfactory’’ rating.
(3) Overall rating—(i) Eligibility for a
satisfactory overall rating. No intermediate
small bank may receive an assigned overall
rating of ‘‘satisfactory’’ unless it receives a
rating of at least ‘‘satisfactory’’ on both the
lending test and the community development
test.
(ii) Eligibility for an outstanding overall
rating. (A) An intermediate small bank that
receives an ‘‘outstanding’’ rating on one test
and at least ‘‘satisfactory’’ on the other test
may receive an assigned overall rating of
‘‘outstanding.’’
(B) A small bank that is not an
intermediate small bank that meets each of
the standards for a ‘‘satisfactory’’ rating
under the lending test and exceeds some or
all of those standards may warrant
consideration for an overall rating of
‘‘outstanding.’’ In assessing whether a bank’s
performance is ‘‘outstanding,’’ the FDIC
considers the extent to which the bank
exceeds each of the performance standards
for a ‘‘satisfactory’’ rating and its
performance in making qualified investments
and its performance in providing branches
and other services and delivery systems that
enhance credit availability in its assessment
area(s).
(iii) Needs to improve or substantial
noncompliance overall ratings. A small bank
may also receive a rating of ‘‘needs to
improve’’ or ‘‘substantial noncompliance’’
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depending on the degree to which its
performance has failed to meet the standards
for a ‘‘satisfactory’’ rating.
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Dated: July 19, 2005.
Julie L. Williams,
Acting Comptroller of the Currency.
By order of the Board of Governors of the
Federal Reserve System, July 26, 2005.
Jennifer J. Johnson,
Secretary of the Board.
Dated at Washington, DC, this 19th day of
July, 2005.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 05–15227 Filed 8–1–05; 8:45 am]
BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 335
RIN 3064–AC88
Securities of Nonmember Insured
Banks
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
AGENCY:
SUMMARY: The FDIC is adopting a final
rule amending part 335 of its regulations
with one nonsubstantive change from
the interim final rule published on
March 31, 2005, in the Federal Register
(see 70 FR 16398). The final rule adopts
amendments to the FDIC’s securities
disclosure regulations applicable to
state nonmember banks with securities
required to be registered under section
12 of the Securities Exchange Act of
1934 (Exchange Act). The final rule
reflects amendments to the Securities
Exchange Act of 1934 made by the
Sarbanes-Oxley Act of 2002 (SarbanesOxley Act), and accommodates certain
operational changes within the FDIC.
The rule also incorporates through cross
reference changes in regulations
adopted by the Securities Exchange and
Commission (SEC) into the provisions of
the FDIC’s securities regulations.
Incorporation by reference will assure
that the FDIC’s regulations remain
substantially similar to the SEC’s
regulations, as required by law.
DATES: These amendments are effective
on August 2, 2005.
FOR FURTHER INFORMATION CONTACT:
Dennis Chapman, Senior Staff
Accountant, Division of Supervision
and Consumer Protection, (202) 898–
8922; Mary Frank, Senior Financial
Analyst, Division of Supervision and
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Consumer Protection, (202) 898–8903;
or Mark G. Flanigan, Counsel, Legal
Division, (202) 898–7426, Federal
Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background
Section 12(i) of the Exchange Act, as
amended (15 U.S.C. 78l(i)), authorizes
the FDIC to issue regulations applicable
to the securities of state nonmember
banks that are substantially similar to
those of the SEC with respect to its
powers, functions, and duties to
administer and enforce sections 10A(m)
(standards relating to audit committees),
12 (securities registration), 13 (periodic
reporting), 14(a) (proxies and proxy
solicitation), 14(c) (information
statements), 14(d) (tender offers), 14(f)
(arrangements for changes in directors),
and 16 (beneficial ownership and
reporting) of the Exchange Act, and
sections 302 (corporate responsibility
for financial reports), 303 (improper
influence on conduct of audits), 304
(forfeiture of certain bonuses and
profits), 306 (insider trades during
blackout periods), 401(b) (disclosure of
pro forma financial information), 404
(management assessment of internal
controls), 406 (code of ethics for senior
financial officers), and 407 (disclosure
of audit committee financial expert) of
the Sarbanes-Oxley Act (codified at 15
U.S.C. 7241, 7242, 7243, 7244, 7261,
7262, 7264, and 7265), in regard to the
depository institutions for which it is
the primary Federal regulator. These
regulations must be substantially similar
to the regulations of the SEC under the
listed sections of the Exchange Act and
the Sarbanes-Oxley Act, unless the FDIC
publishes its reasons for deviating from
the SEC’s rules. The amendments to this
part incorporate amendments to the
Exchange Act, and changes to the SEC
regulations that the FDIC is required to
administer and enforce with respect to
registered state nonmember banks,
including the adoption of Regulation FD
(Fair Disclosure).
In addition, certain changes to
delegations of authority in part 335
result from FDIC’s internal merger of the
former Division of Supervision and the
former Division of Compliance and
Consumer Affairs into the Division of
Supervision and Consumer Protection.
The reorganization also created area
offices in Memphis, Tennessee, and
Boston, Massachusetts, in place of
regional offices in those cities, and title
changes for officials in the FDIC
headquarters and other offices.
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II. Interim Final Rule and Request for
Comments
On March 31, 2005, the FDIC
published in the Federal Register (70
FR 16398) an interim final rule which
reflected amendments to the Exchange
Act made by the Sarbanes-Oxley Act,
and incorporated by cross reference
changes in regulations adopted by the
SEC into the provisions of the FDIC’s
securities regulations. The interim final
rule also made certain technical
amendments to part 335. The FDIC
requested comments on all aspects of
the rule changes, with comments due by
May 31, 2005, the date the interim final
rule took effect. Commenters were asked
to support any suggestions that the FDIC
modify the requirements of the SEC
rules, regulations and forms for state
nonmember banks by demonstrating
how such modification would satisfy
the requirements of section 12(i) of the
Exchange Act. The FDIC also welcomed
comments on the general organization of
part 335.
One comment letter was filed on the
interim final rule. The commenter, a
banker, raised two separate comments
regarding provisions of the interim final
rule. The FDIC considered each point.
The first comment is that the FDIC’s
cross reference in section 335.121
(Listing standards related to audit
committees) incorporating the SEC’s
regulation under section 10(A)(m) of the
Exchange Act, codified at 17 CFR
240.10A–3, is duplicative. Section 12(i)
of the Exchange Act specifically gives
the appropriate bank regulatory agencies
the powers, functions, and duties to
administer and enforce section 10A(m)
of the Exchange Act with respect to the
institutions under their supervision.
While the FDIC has the ability under
section 12(i) of the Exchange Act to
issue additional or different regulations
compared to those of the SEC, the FDIC
generally believes that cross referencing
the regulations of the SEC simplifies the
administration and enforcement of the
Exchange Act. It also helps promote
uniformity and consistency of
administration. Therefore, the FDIC is
retaining the direct cross reference to 17
CFR 240.10A–3 in 12 CFR 335.121.
The second comment is that the
FDIC’s incorporation of SEC Regulation
FD (Fair Disclosure) in section
335.221(d) under the heading ‘‘Forms
for registration of securities and similar
matters’’ may not be the most
appropriate placement for this cross
reference. The commenter suggested
that the FDIC give the item its own
section within part 335 to make it more
prominent and easily recognizable to
bankers and their counsel. The FDIC
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44271
recognizes the concern for making the
cross reference to Regulation FD more
prominent, and is changing the heading
of section 335.221 from its current title
to ‘‘Forms for registration of securities;
optional forms for small business
issuers; and incorporation of Regulation
FD (Fair Disclosure).’’ The FDIC
considers this change in section heading
to be a nonsubstantive technical change.
III. Section by Section Analysis
Part 335 is being amended throughout
to reflect the addition of section 10A(m)
of the Exchange Act and sections 302,
303, 304, 306, 401(b), 404, 406, and 407
of the Sarbanes-Oxley Act to those
sections that the FDIC is currently
required to administer and enforce
under section 12(i) of the Exchange Act.
Section 335.101(b) is amended to
clarify that part 335 generally
incorporates through cross reference the
regulations of the SEC as these
regulations are routinely issued, revised,
or updated from time to time by the SEC
under sections 10A(m), 12, 13, 14, and
16 of the Exchange Act and sections
302, 303, 304, 306, 401(b), 404, 406, and
407 of the Sarbanes-Oxley Act, except as
provided at section 335.801 of this part.
New section 335.121 (Listing
standards relating to audit committees)
specifically incorporates by reference
the SEC rule 10A–3 (17 CFR 240.10A–
3), adopted pursuant to section 10(A)(m)
of the Exchange Act and section 301 of
the Sarbanes-Oxley Act, which prohibits
any national securities exchange and
national securities association from
listing the securities of an issuer that
fails to comply with specific audit
committee requirements including
member independence, oversight,
complaint procedures, engagement of
counsel and other advisors, and
funding.
Section 335.201 (Securities exempted
from registration) and section 335.261
(Exemptions; terminations and
definitions) add SEC Rule 12h–5
(Exemption for subsidiary issuers of
guaranteed securities and subsidiary
guarantors) (17 CFR 240.12h–5)
Section 335.211 (Registration and
reporting) adds SEC Rule 17 CFR
240.12b–37 (Satisfaction of filing
requirements).
Section 335.221 (Forms for
registration of securities; optional forms
for small business issuers; and
incorporation of Regulation FD (Fair
Disclosure)) adds new paragraph (d) to
adopt the requirements of SEC
Regulation FD (Fair Disclosure) (17 CFR
243.100 through 243.103), which is
designed to address problems of
selective disclosure of material
information by reporting entities. The
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Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules and Regulations
section heading is also being revised to
explicitly reference Regulation FD.
Section 335.331 (Acquisition
statements, acquisition of securities by
issuers, and other matters) is amended
to add SEC Rule 13k–1 (Foreign bank
exemption from the insider lending
prohibition under section 13(k) of the
Exchange Act) (17 CFR 240.13k–1) and
to change the title.
Section 335.801 (Inapplicable SEC
regulations; FDIC substituted
regulations; additional information) is
amended to add section 10A(m) of the
Exchange Act and sections 302, 303,
304, 306, 401(b), 404, 406, and 407 of
the Sarbanes-Oxley Act.
Section 335.901 (Delegation of
authority to act on matters with respect
to disclosure laws and regulations) is
amended to reflect certain changes in
the organizational structure of the FDIC
and to shorten the section heading.
IV. Regulatory Analysis and Procedure
a. Administrative Procedure Act
Public Comment Waiver and Effective
Date: Pursuant to the Administrative
Procedure Act, 5 U.S.C. 553(b) (APA),
the FDIC found good cause to issue the
interim final rule without first seeking
public comment. Section 553(b) of the
APA does not apply to rules of agency
organization, procedure, or practice, or
when the agency for good cause finds
that notice and public comment on the
rules being promulgated are impractical
or unnecessary. The Exchange Act
requires that the FDIC issue regulations
substantially similar to those of the SEC
or publish its reasons for not doing so.
Certain portions of 12 CFR 335 that are
being amended are organizational; other
portions result from amendments to
section 12(i) of the Exchange Act or the
adoption of regulations by the SEC that
were published in proposed form by the
SEC. For these reasons, the FDIC
confirms its finding that providing
notice and an opportunity for public
comment on these rules is unnecessary.
Nonetheless, the FDIC solicited public
comment on the interim final rule and
has fully considered the comments that
were filed.
As authorized by section 553(d) of the
APA, the FDIC finds that there is good
cause for this final rule to take effect
immediately upon publication in the
Federal Register. With the exception of
the change in the section heading of
section 335.221, the final rule is
identical to the interim final rule which
became effective on May 31, 2005. No
purpose would be served by delaying
the rule’s effective date.
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b. Paperwork Reduction Act
This rule contains no new collections
of information as defined by the
Paperwork Reduction Act.
I
c. Regulatory Flexibility Act
A regulatory flexibility analysis is
required only when the agency must
publish a notice of proposed rulemaking
(5 U.S.C. 603, 604). Because the
revisions to part 335 were published as
an interim final rule without a notice of
proposed rulemaking, no regulatory
flexibility analysis is required.
The provisions of the applicable SEC
regulation under section 10(A)(m) of the
Exchange Act shall be followed as
codified at 17 CFR 240.10A–3.
I 4. Section 335.201 is revised to read as
follows:
d. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 801
et seq.) (SBREFA) provides generally for
agencies to report rules to Congress and
for Congress to review these rules. The
reporting requirement is triggered in
instances where the FDIC issues a final
rule as defined by the Administrative
Procedure Act (APA). Because the FDIC
is issuing a final rule as defined by the
APA, the FDIC will file the reports
required by SBREFA.
List of Subjects in 12 CFR Part 335
Accounting, Banks, Banking,
Confidential business information,
Reporting and recordkeeping
requirements, Securities.
I The Board of Directors of the Federal
Deposit Insurance Corporation hereby
amends part 335 to Title 12 of the Code
of Federal Regulations as follows:
PART 335—SECURITIES OF
NONMEMBER INSURED BANKS
3. Section 335.121 is revised to read as
follows:
§ 335.121 Listing standards related to
audit committees.
§ 335.201 Securities exempted from
registration.
Persons generally subject to
registration requirements under
Exchange Act section 12 and subject to
this part shall follow the applicable and
currently effective SEC regulations
relative to exemptions from registration
issued under sections 3 and 12 of the
Exchange Act as codified at 17 CFR
240.3a12–1 through 240.3a12–11,
240.12a–4 through 240.12a–9, and
240.12g–1 through 240.12h–5.
I 5. Section 335.211 is revised to read as
follows:
§ 335.211
Registration and reporting.
Persons with securities subject to
registration under Exchange Act
sections 12(b) and 12(g), required to
report under Exchange Act section 13,
and subject to this part shall follow the
applicable and currently effective SEC
regulations issued under section 12(b) of
the Exchange Act as codified at 17 CFR
240.12b–1 through 240.12b–37.
I 6. Section 335.221 is amended by
revising the section heading and by
revising paragraph (d) to read as follows:
I
1. The authority citation for part 335
continues to read as follows:
Authority: 12 U.S.C. 1819; 15 U.S.C. 78l(i),
78m, 78n, 78p, 78w, 7241, 7242, 7243, 7244,
7261, 7262, 7264, and 7265.
§ 335.221 Forms for registration of
securities; optional forms for small
business issuers; and incorporation of
Regulation FD (Fair Disclosure).
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2. Section 335.101 is amended by
revising paragraph (b) to read as follows:
I
§ 335.101 Scope of part, authority, and
OMB control number.
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(b) Part 335 generally incorporates
through cross reference the regulations
of the SEC as these regulations are
issued, revised, or updated from time to
time under sections 10A(m), 12, 13,
14(a), 14(c), 14(d), 14(f), and 16 of the
Exchange Act and sections 302, 303,
304, 306, 401(b), 404, 406, and 407 of
the Sarbanes-Oxley Act of 2002
(Sarbanes-Oxley Act), except as
provided at § 335.801 of this part.
References to the Commission in the
regulations of the SEC are deemed to
refer to the FDIC unless the context
otherwise requires.
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(d) The provisions of the applicable
and currently effective SEC regulation
FD shall be followed as codified at 17
CFR 243.100 through 243.103.
I 7. Section 335.261 is revised to read as
follows:
§ 335.261 Exemptions; terminations; and
definitions.
The provisions of the applicable and
currently effective SEC regulations
under sections 12(g) and 12(h) of the
Exchange Act shall be followed as
codified at 17 CFR 240.12g–1 through
240.12h–5.
I 8. Section 335.331 is revised to read as
follows:
§ 335.331 Acquisition statements,
acquisition of securities by issuers, and
other matters.
The provisions of the applicable and
currently effective SEC regulations
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under sections 13(d) and 13(e) of the
Exchange Act shall be followed as
codified at 17 CFR 240.13d–1 through
240.13e–102 and 240.13k–1.
9. Section 335.801 is amended by
revising paragraph (a) to read as follows:
I
§ 335.801 Inapplicable SEC regulations;
FDIC substituted regulations; additional
information.
(a) Filing fees. Filing fees will not be
charged relative to any filings or
submissions of materials made with the
FDIC pursuant to the cross reference to
regulations of the SEC issued under
sections 10A(m), 12, 13, 14, and 16 of
the Securities Exchange Act of 1934 (15
U.S.C. 78), sections 302, 303, 304, 306,
401(b), 404, 406, and 407 of the
Sarbanes-Oxley Act of 2002 (15 U.S.C.
7241, 7242, 7243, 7244, 7261, 7262,
7264, and 7265), and this part.
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10. Section 335.901 is amended by
revising the section heading and
paragraph (a) as follows:
I
§ 335.901 Delegation of authority to act on
matters with respect to disclosure laws and
regulations.
(a) Except as provided in paragraph
(b) of this section, authority is delegated
to the Director, Division of Supervision
and Consumer Protection (DSC), and
where confirmed in writing by the
director, to a deputy director or an
associate director, or to the appropriate
regional director or deputy regional
director or area director, to act on
disclosure matters under and pursuant
to sections 10A(m), 12, 13, 14(a), 14(c),
14(d), 14(f) and 16 of the Securities
Exchange Act of 1934 (15 U.S.C. 78),
sections 302, 303, 304, 306, 401(b), 404,
406, and 407 of the Sarbanes-Oxley Act
of 2002 (15 U.S.C. 7241, 7242, 7243,
7244, 7261, 7262, 7264, and 7265), and
this part.
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Dated at Washington, DC, this 19th day of
July, 2005.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 05–15107 Filed 8–1–05; 8:45 am]
BILLING CODE 6714–01–P
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DEPARTMENT OF TRANSPORTATION
Examining the Docket
Federal Aviation Administration
You may examine the AD docket on
the Internet at https://dms.dot.gov or in
person at the Docket Management
Facility office between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The Docket
Management Facility office (telephone
(800) 647–5227) is located on the plaza
level of the Nassif Building at the street
address stated in the ADDRESSES section.
14 CFR Part 39
[Docket No. FAA–2005–20111; Directorate
Identifier 2004–NM–154–AD; Amendment
39–14207; AD 2005–16–02]
RIN 2120–AA64
Airworthiness Directives; Raytheon
Model HS.125 Series 700A Airplanes,
Model BAe.125 Series 800A Airplanes,
and Model Hawker 800 and Hawker
800XP Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for certain
Raytheon Model HS.125 series 700A
airplanes, Model BAe.125 series 800A
airplanes, and Model Hawker 800 and
Hawker 800XP airplanes. This AD
requires inspecting to determine the
current rating of the circuit breakers of
certain cockpit ventilation and avionics
cooling system blowers; and replacing
the circuit breakers and modifying the
blower wiring, as applicable. This AD
results from a report indicating that a
blower motor seized up and gave off
smoke. We are issuing this AD to
prevent smoke and fumes in the cockpit
in the event that a blower motor seizes
and overheats due to excessive current
draw.
DATES: Effective September 6, 2005.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in the AD
as of September 6, 2005.
ADDRESSES: You may examine the AD
docket on the Internet at https://
dms.dot.gov or in person at the Docket
Management Facility, U.S. Department
of Transportation, 400 Seventh Street,
SW., Nassif Building, Room PL–401,
Washington, DC.
Contact Raytheon Aircraft Company,
Department 62, P.O. Box 85, Wichita,
Kansas 67201–0085, for service
information identified in this AD.
FOR FURTHER INFORMATION CONTACT:
Philip Petty, Aerospace Engineer,
Electrical Systems Branch, ACE–119W,
FAA, Wichita Aircraft Certification
Office, 1801 Airport Road, room 100,
Mid-Continent Airport, Wichita, Kansas
67209; telephone (316) 946–4139; fax
(316) 946–4107.
SUPPLEMENTARY INFORMATION:
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Discussion
The FAA issued a supplemental
notice of proposed rulemaking (NPRM)
to amend 14 CFR part 39 to include an
AD that would apply to certain
Raytheon Model HS.125 series 700A
airplanes, Model BAe.125 series 800A
airplanes, and Model Hawker 800 and
Hawker 800XP airplanes. That
supplemental NPRM was published in
the Federal Register on May 9, 2005 (70
FR 24341). That supplemental NPRM
proposed to require inspecting to
determine the current rating of the
circuit breakers of certain cockpit
ventilation and avionics cooling system
blowers; and replacing the circuit
breakers and modifying the blower
wiring, as applicable.
Comments
We provided the public the
opportunity to participate in the
development of this AD. We received no
comments on the NPRM or on the
determination of the cost to the public.
Conclusion
We have carefully reviewed the
available data and determined that air
safety and the public interest require
adopting the AD as proposed.
Costs of Compliance
There are about 350 airplanes of the
affected design in the worldwide fleet.
This AD will affect about 250 airplanes
of U.S. registry. The required inspection
will take about 1 work hour per
airplane, at an average labor rate of $65
per work hour. Based on these figures,
the estimated cost of this AD on U.S.
operators is $16,250, or $65 per
airplane.
Authority for This Rulemaking
Title 49 of the United States Code
specifies the FAA’s authority to issue
rules on aviation safety. Subtitle I,
Section 106, describes the authority of
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the Agency’s
authority.
E:\FR\FM\02AUR1.SGM
02AUR1
]]>Agencies
[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Rules and Regulations]
[Pages 44270-44273]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15107]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 335
RIN 3064-AC88
Securities of Nonmember Insured Banks
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The FDIC is adopting a final rule amending part 335 of its
regulations with one nonsubstantive change from the interim final rule
published on March 31, 2005, in the Federal Register (see 70 FR 16398).
The final rule adopts amendments to the FDIC's securities disclosure
regulations applicable to state nonmember banks with securities
required to be registered under section 12 of the Securities Exchange
Act of 1934 (Exchange Act). The final rule reflects amendments to the
Securities Exchange Act of 1934 made by the Sarbanes-Oxley Act of 2002
(Sarbanes-Oxley Act), and accommodates certain operational changes
within the FDIC. The rule also incorporates through cross reference
changes in regulations adopted by the Securities Exchange and
Commission (SEC) into the provisions of the FDIC's securities
regulations. Incorporation by reference will assure that the FDIC's
regulations remain substantially similar to the SEC's regulations, as
required by law.
DATES: These amendments are effective on August 2, 2005.
FOR FURTHER INFORMATION CONTACT: Dennis Chapman, Senior Staff
Accountant, Division of Supervision and Consumer Protection, (202) 898-
8922; Mary Frank, Senior Financial Analyst, Division of Supervision and
[[Page 44271]]
Consumer Protection, (202) 898-8903; or Mark G. Flanigan, Counsel,
Legal Division, (202) 898-7426, Federal Deposit Insurance Corporation,
550 17th Street, NW., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background
Section 12(i) of the Exchange Act, as amended (15 U.S.C. 78l(i)),
authorizes the FDIC to issue regulations applicable to the securities
of state nonmember banks that are substantially similar to those of the
SEC with respect to its powers, functions, and duties to administer and
enforce sections 10A(m) (standards relating to audit committees), 12
(securities registration), 13 (periodic reporting), 14(a) (proxies and
proxy solicitation), 14(c) (information statements), 14(d) (tender
offers), 14(f) (arrangements for changes in directors), and 16
(beneficial ownership and reporting) of the Exchange Act, and sections
302 (corporate responsibility for financial reports), 303 (improper
influence on conduct of audits), 304 (forfeiture of certain bonuses and
profits), 306 (insider trades during blackout periods), 401(b)
(disclosure of pro forma financial information), 404 (management
assessment of internal controls), 406 (code of ethics for senior
financial officers), and 407 (disclosure of audit committee financial
expert) of the Sarbanes-Oxley Act (codified at 15 U.S.C. 7241, 7242,
7243, 7244, 7261, 7262, 7264, and 7265), in regard to the depository
institutions for which it is the primary Federal regulator. These
regulations must be substantially similar to the regulations of the SEC
under the listed sections of the Exchange Act and the Sarbanes-Oxley
Act, unless the FDIC publishes its reasons for deviating from the SEC's
rules. The amendments to this part incorporate amendments to the
Exchange Act, and changes to the SEC regulations that the FDIC is
required to administer and enforce with respect to registered state
nonmember banks, including the adoption of Regulation FD (Fair
Disclosure).
In addition, certain changes to delegations of authority in part
335 result from FDIC's internal merger of the former Division of
Supervision and the former Division of Compliance and Consumer Affairs
into the Division of Supervision and Consumer Protection. The
reorganization also created area offices in Memphis, Tennessee, and
Boston, Massachusetts, in place of regional offices in those cities,
and title changes for officials in the FDIC headquarters and other
offices.
II. Interim Final Rule and Request for Comments
On March 31, 2005, the FDIC published in the Federal Register (70
FR 16398) an interim final rule which reflected amendments to the
Exchange Act made by the Sarbanes-Oxley Act, and incorporated by cross
reference changes in regulations adopted by the SEC into the provisions
of the FDIC's securities regulations. The interim final rule also made
certain technical amendments to part 335. The FDIC requested comments
on all aspects of the rule changes, with comments due by May 31, 2005,
the date the interim final rule took effect. Commenters were asked to
support any suggestions that the FDIC modify the requirements of the
SEC rules, regulations and forms for state nonmember banks by
demonstrating how such modification would satisfy the requirements of
section 12(i) of the Exchange Act. The FDIC also welcomed comments on
the general organization of part 335.
One comment letter was filed on the interim final rule. The
commenter, a banker, raised two separate comments regarding provisions
of the interim final rule. The FDIC considered each point.
The first comment is that the FDIC's cross reference in section
335.121 (Listing standards related to audit committees) incorporating
the SEC's regulation under section 10(A)(m) of the Exchange Act,
codified at 17 CFR 240.10A-3, is duplicative. Section 12(i) of the
Exchange Act specifically gives the appropriate bank regulatory
agencies the powers, functions, and duties to administer and enforce
section 10A(m) of the Exchange Act with respect to the institutions
under their supervision. While the FDIC has the ability under section
12(i) of the Exchange Act to issue additional or different regulations
compared to those of the SEC, the FDIC generally believes that cross
referencing the regulations of the SEC simplifies the administration
and enforcement of the Exchange Act. It also helps promote uniformity
and consistency of administration. Therefore, the FDIC is retaining the
direct cross reference to 17 CFR 240.10A-3 in 12 CFR 335.121.
The second comment is that the FDIC's incorporation of SEC
Regulation FD (Fair Disclosure) in section 335.221(d) under the heading
``Forms for registration of securities and similar matters'' may not be
the most appropriate placement for this cross reference. The commenter
suggested that the FDIC give the item its own section within part 335
to make it more prominent and easily recognizable to bankers and their
counsel. The FDIC recognizes the concern for making the cross reference
to Regulation FD more prominent, and is changing the heading of section
335.221 from its current title to ``Forms for registration of
securities; optional forms for small business issuers; and
incorporation of Regulation FD (Fair Disclosure).'' The FDIC considers
this change in section heading to be a nonsubstantive technical change.
III. Section by Section Analysis
Part 335 is being amended throughout to reflect the addition of
section 10A(m) of the Exchange Act and sections 302, 303, 304, 306,
401(b), 404, 406, and 407 of the Sarbanes-Oxley Act to those sections
that the FDIC is currently required to administer and enforce under
section 12(i) of the Exchange Act.
Section 335.101(b) is amended to clarify that part 335 generally
incorporates through cross reference the regulations of the SEC as
these regulations are routinely issued, revised, or updated from time
to time by the SEC under sections 10A(m), 12, 13, 14, and 16 of the
Exchange Act and sections 302, 303, 304, 306, 401(b), 404, 406, and 407
of the Sarbanes-Oxley Act, except as provided at section 335.801 of
this part.
New section 335.121 (Listing standards relating to audit
committees) specifically incorporates by reference the SEC rule 10A-3
(17 CFR 240.10A-3), adopted pursuant to section 10(A)(m) of the
Exchange Act and section 301 of the Sarbanes-Oxley Act, which prohibits
any national securities exchange and national securities association
from listing the securities of an issuer that fails to comply with
specific audit committee requirements including member independence,
oversight, complaint procedures, engagement of counsel and other
advisors, and funding.
Section 335.201 (Securities exempted from registration) and section
335.261 (Exemptions; terminations and definitions) add SEC Rule 12h-5
(Exemption for subsidiary issuers of guaranteed securities and
subsidiary guarantors) (17 CFR 240.12h-5)
Section 335.211 (Registration and reporting) adds SEC Rule 17 CFR
240.12b-37 (Satisfaction of filing requirements).
Section 335.221 (Forms for registration of securities; optional
forms for small business issuers; and incorporation of Regulation FD
(Fair Disclosure)) adds new paragraph (d) to adopt the requirements of
SEC Regulation FD (Fair Disclosure) (17 CFR 243.100 through 243.103),
which is designed to address problems of selective disclosure of
material information by reporting entities. The
[[Page 44272]]
section heading is also being revised to explicitly reference
Regulation FD.
Section 335.331 (Acquisition statements, acquisition of securities
by issuers, and other matters) is amended to add SEC Rule 13k-1
(Foreign bank exemption from the insider lending prohibition under
section 13(k) of the Exchange Act) (17 CFR 240.13k-1) and to change the
title.
Section 335.801 (Inapplicable SEC regulations; FDIC substituted
regulations; additional information) is amended to add section 10A(m)
of the Exchange Act and sections 302, 303, 304, 306, 401(b), 404, 406,
and 407 of the Sarbanes-Oxley Act.
Section 335.901 (Delegation of authority to act on matters with
respect to disclosure laws and regulations) is amended to reflect
certain changes in the organizational structure of the FDIC and to
shorten the section heading.
IV. Regulatory Analysis and Procedure
a. Administrative Procedure Act
Public Comment Waiver and Effective Date: Pursuant to the
Administrative Procedure Act, 5 U.S.C. 553(b) (APA), the FDIC found
good cause to issue the interim final rule without first seeking public
comment. Section 553(b) of the APA does not apply to rules of agency
organization, procedure, or practice, or when the agency for good cause
finds that notice and public comment on the rules being promulgated are
impractical or unnecessary. The Exchange Act requires that the FDIC
issue regulations substantially similar to those of the SEC or publish
its reasons for not doing so. Certain portions of 12 CFR 335 that are
being amended are organizational; other portions result from amendments
to section 12(i) of the Exchange Act or the adoption of regulations by
the SEC that were published in proposed form by the SEC. For these
reasons, the FDIC confirms its finding that providing notice and an
opportunity for public comment on these rules is unnecessary.
Nonetheless, the FDIC solicited public comment on the interim final
rule and has fully considered the comments that were filed.
As authorized by section 553(d) of the APA, the FDIC finds that
there is good cause for this final rule to take effect immediately upon
publication in the Federal Register. With the exception of the change
in the section heading of section 335.221, the final rule is identical
to the interim final rule which became effective on May 31, 2005. No
purpose would be served by delaying the rule's effective date.
b. Paperwork Reduction Act
This rule contains no new collections of information as defined by
the Paperwork Reduction Act.
c. Regulatory Flexibility Act
A regulatory flexibility analysis is required only when the agency
must publish a notice of proposed rulemaking (5 U.S.C. 603, 604).
Because the revisions to part 335 were published as an interim final
rule without a notice of proposed rulemaking, no regulatory flexibility
analysis is required.
d. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
801 et seq.) (SBREFA) provides generally for agencies to report rules
to Congress and for Congress to review these rules. The reporting
requirement is triggered in instances where the FDIC issues a final
rule as defined by the Administrative Procedure Act (APA). Because the
FDIC is issuing a final rule as defined by the APA, the FDIC will file
the reports required by SBREFA.
List of Subjects in 12 CFR Part 335
Accounting, Banks, Banking, Confidential business information,
Reporting and recordkeeping requirements, Securities.
0
The Board of Directors of the Federal Deposit Insurance Corporation
hereby amends part 335 to Title 12 of the Code of Federal Regulations
as follows:
PART 335--SECURITIES OF NONMEMBER INSURED BANKS
0
1. The authority citation for part 335 continues to read as follows:
Authority: 12 U.S.C. 1819; 15 U.S.C. 78l(i), 78m, 78n, 78p, 78w,
7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265.
0
2. Section 335.101 is amended by revising paragraph (b) to read as
follows:
Sec. 335.101 Scope of part, authority, and OMB control number.
* * * * *
(b) Part 335 generally incorporates through cross reference the
regulations of the SEC as these regulations are issued, revised, or
updated from time to time under sections 10A(m), 12, 13, 14(a), 14(c),
14(d), 14(f), and 16 of the Exchange Act and sections 302, 303, 304,
306, 401(b), 404, 406, and 407 of the Sarbanes-Oxley Act of 2002
(Sarbanes-Oxley Act), except as provided at Sec. 335.801 of this part.
References to the Commission in the regulations of the SEC are deemed
to refer to the FDIC unless the context otherwise requires.
0
3. Section 335.121 is revised to read as follows:
Sec. 335.121 Listing standards related to audit committees.
The provisions of the applicable SEC regulation under section
10(A)(m) of the Exchange Act shall be followed as codified at 17 CFR
240.10A-3.
0
4. Section 335.201 is revised to read as follows:
Sec. 335.201 Securities exempted from registration.
Persons generally subject to registration requirements under
Exchange Act section 12 and subject to this part shall follow the
applicable and currently effective SEC regulations relative to
exemptions from registration issued under sections 3 and 12 of the
Exchange Act as codified at 17 CFR 240.3a12-1 through 240.3a12-11,
240.12a-4 through 240.12a-9, and 240.12g-1 through 240.12h-5.
0
5. Section 335.211 is revised to read as follows:
Sec. 335.211 Registration and reporting.
Persons with securities subject to registration under Exchange Act
sections 12(b) and 12(g), required to report under Exchange Act section
13, and subject to this part shall follow the applicable and currently
effective SEC regulations issued under section 12(b) of the Exchange
Act as codified at 17 CFR 240.12b-1 through 240.12b-37.
0
6. Section 335.221 is amended by revising the section heading and by
revising paragraph (d) to read as follows:
Sec. 335.221 Forms for registration of securities; optional forms for
small business issuers; and incorporation of Regulation FD (Fair
Disclosure).
* * * * *
(d) The provisions of the applicable and currently effective SEC
regulation FD shall be followed as codified at 17 CFR 243.100 through
243.103.
0
7. Section 335.261 is revised to read as follows:
Sec. 335.261 Exemptions; terminations; and definitions.
The provisions of the applicable and currently effective SEC
regulations under sections 12(g) and 12(h) of the Exchange Act shall be
followed as codified at 17 CFR 240.12g-1 through 240.12h-5.
0
8. Section 335.331 is revised to read as follows:
Sec. 335.331 Acquisition statements, acquisition of securities by
issuers, and other matters.
The provisions of the applicable and currently effective SEC
regulations
[[Page 44273]]
under sections 13(d) and 13(e) of the Exchange Act shall be followed as
codified at 17 CFR 240.13d-1 through 240.13e-102 and 240.13k-1.
0
9. Section 335.801 is amended by revising paragraph (a) to read as
follows:
Sec. 335.801 Inapplicable SEC regulations; FDIC substituted
regulations; additional information.
(a) Filing fees. Filing fees will not be charged relative to any
filings or submissions of materials made with the FDIC pursuant to the
cross reference to regulations of the SEC issued under sections 10A(m),
12, 13, 14, and 16 of the Securities Exchange Act of 1934 (15 U.S.C.
78), sections 302, 303, 304, 306, 401(b), 404, 406, and 407 of the
Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241, 7242, 7243, 7244, 7261,
7262, 7264, and 7265), and this part.
* * * * *
0
10. Section 335.901 is amended by revising the section heading and
paragraph (a) as follows:
Sec. 335.901 Delegation of authority to act on matters with respect
to disclosure laws and regulations.
(a) Except as provided in paragraph (b) of this section, authority
is delegated to the Director, Division of Supervision and Consumer
Protection (DSC), and where confirmed in writing by the director, to a
deputy director or an associate director, or to the appropriate
regional director or deputy regional director or area director, to act
on disclosure matters under and pursuant to sections 10A(m), 12, 13,
14(a), 14(c), 14(d), 14(f) and 16 of the Securities Exchange Act of
1934 (15 U.S.C. 78), sections 302, 303, 304, 306, 401(b), 404, 406, and
407 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241, 7242, 7243,
7244, 7261, 7262, 7264, and 7265), and this part.
* * * * *
Dated at Washington, DC, this 19th day of July, 2005.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 05-15107 Filed 8-1-05; 8:45 am]
BILLING CODE 6714-01-P
