Removal of Transferred OTS Regulations Regarding Safety and Soundness Guidelines and Compliance Procedures; Rules on Safety and Soundness, 65903-65913 [2015-27293]

Agencies

• FEDERAL DEPOSIT INSURANCE CORPORATION

[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Rules and Regulations]
[Pages 65903-65913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27293]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 308, 364, and 391

RIN 3064-AE28


Removal of Transferred OTS Regulations Regarding Safety and 
Soundness Guidelines and Compliance Procedures; Rules on Safety and 
Soundness

AGENCY:  Federal Deposit Insurance Corporation.

ACTION:  Final rule.

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SUMMARY:  The Federal Deposit Insurance Corporation (``FDIC'') is 
adopting a final rule (``Final Rule'') to rescind and remove from the 
Code of Federal Regulations 12 CFR part 391, subpart B (``part 391, 
subpart B''), entitled ``Safety and Soundness Guidelines and Compliance 
Procedures,'' appendices A and B to part 391, subpart B, and supplement 
A to appendix B. The Final Rule also amends 12 CFR part 308, subpart R 
(``part 308, subpart R''), entitled ``Submission and Review of Safety 
and Soundness Compliance Plans and Issuance of Orders to Correct Safety 
and Soundness Deficiencies,'' and 12 CFR part 364 (``part 364''), 
entitled ``Standards for Safety and Soundness'' and its corresponding 
appendices and supplement. Part 391, subpart B was one of several rules 
transferred to the FDIC following dissolution of the former Office of 
Thrift Supervision (``OTS'') in connection with the implementation of 
applicable provisions of Title III of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act (``Dodd-Frank Act''). Section 316(b)(3) of 
the Dodd-Frank Act provided that the former OTS rules that were 
transferred to the FDIC would be enforceable by or against the FDIC 
until they were modified, terminated, set aside, or superseded in 
accordance with applicable law by the FDIC, by any court of competent 
jurisdiction, or by operation of law. On January 30, 2015, the FDIC 
published in the Federal Register a notice of proposed rulemaking 
(``NPR'' or ``Proposed Rule'') that explained and solicited public 
comment on a proposal to rescind and remove part 391, subpart B and to 
amend part 364, its appendices, and its supplement and part 308, 
subpart R by making them applicable to ``State savings associations'' 
and making minor technical updates to the appendices and supplement to 
part 364. The FDIC received no comments on the Proposed Rule and 
consequently is adopting the Final Rule as proposed in the NPR without 
change.

DATES: The Final Rule is effective on November 27, 2015.

FOR FURTHER INFORMATION CONTACT: Rebecca M. Parks, Review Examiner, 
Division of Risk Management Supervision (202) 898-3912; Jann L. Harley, 
Senior Attorney, Legal Division (312) 382-6535; or Michael P. Condon, 
Counsel, Legal Division (202) 898-6536.

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Act

    The Dodd-Frank Act 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, codified at 12 U.S.C. 5411, 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 316(b) of 
the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner 
of treatment for all orders, resolutions, determinations, regulations, 
and advisory materials that had been issued, made, prescribed, or 
allowed to become effective by the OTS. The section provides 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.
    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 
5414(c), further directed the FDIC and the OCC to consult with one 
another and to publish a list of the continued OTS regulations which 
would be enforced by the FDIC and the OCC, respectively. On June 14, 
2011, the FDIC's Board of Directors 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.\1\
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    \1\ 76 FR 39247 (July 6, 2011).
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    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, 
codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking 
authority relating to both State and Federal savings associations, 
nothing in the Dodd-Frank Act affected the FDIC's existing authority to 
issue regulations under the FDI Act and other laws as the ``appropriate 
Federal banking agency'' or under similar statutory terminology. 
Section 312(c) of the Dodd-Frank Act amended the definition of 
``appropriate Federal banking agency'' contained in Section 3(q) of the 
FDI Act, 12 U.S.C. 1813(q), 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 well as for State nonmember banks and insured branches 
of foreign banks.
    As noted, on June 14, 2011, operating pursuant to this authority, 
the FDIC's Board of Directors reissued and redesignated certain 
transferring regulations of the former OTS. These transferred OTS 
regulations were published as new FDIC regulations in

[[Page 65904]]

the Federal Register on August 5, 2011.\2\ 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.
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    \2\ 76 FR 47652 (Aug. 5, 2011).
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II. Proposed Rule

A. Removal of Part 391, Subpart B

    On January 30, 2015, the FDIC published an NPR proposing to remove 
part 391, subpart B, which was one of the OTS's former rules that was 
transferred to the FDIC and governs safety and soundness guidelines, 
the submission and review of safety and soundness compliance plans, and 
the issuance of orders to correct safety and soundness deficiencies. 
The OTS's rule, formerly found at 12 CFR part 570, was transferred to 
the FDIC with only nomenclature changes and is now found in the FDIC's 
rules at part 391, subpart B, entitled ``Safety and Soundness 
Guidelines and Compliance Procedures.'' The ``Interagency Guidelines 
Establishing Standards for Safety and Soundness'' were found at 
appendix A to part 391, subpart B, the ``Interagency Guidelines 
Establishing Information Security Standards'' were found at appendix B 
to part 391, subpart B, and the ``Interagency Guidance on Response 
Programs for Unauthorized Access to Customer Information and Customer 
Notice'' were found at the supplement to appendix B to part 391, 
subpart B.
    Before the transfer of the OTS rules and continuing today, the 
FDIC's rules contained part 364, entitled ``Standards for Safety and 
Soundness,'' a rule establishing safety and soundness standards for 
State nonmember insured banks and to State-licensed insured branches of 
foreign banks, that are subject to section 39 of the FDI Act, 12 U.S.C. 
1831p-1. Part 364 also established safety and soundness standards 
relating to information security for State nonmember insured banks, 
insured State licensed branches of foreign banks, and any subsidiaries 
of such entities (except brokers, dealers, persons providing insurance, 
investment companies, and investment advisors) as set out in appendix B 
to part 364, the ``Interagency Guidelines Establishing Information 
Security Standards'' and supplement A to appendix B to part 364, the 
``Interagency Guidance on Response Programs for Unauthorized Access to 
Customer Information and Customer Notice.'' Additionally, before the 
transfer of the OTS rules and continuing today, the FDIC's rules 
contained part 308, subpart R, entitled ``Submission and Review of 
Safety and Soundness Compliance Plans and Issuance of Orders to Correct 
Safety and Soundness Deficiencies.''
    The NPR proposed to remove part 391, subpart B, its appendices, and 
its supplement because they are redundant of the rules found in part 
364, its appendices, and its supplement and part 308, subpart R. 
Rescinding part 391, subpart B, serves to streamline the FDIC's rules 
and eliminate unnecessary regulations.

B. Amendments to Part 364, Its Appendices, and Part 308, Subpart B

    In addition, the NPR proposed to revise part 308, subpart R, and 
part 364 and the accompanying appendices A and B and supplement A to 
appendix B. Furthermore, to clarify that part 308, subpart R, and part 
364 and its accompanying appendices A and B and supplement A to 
appendix B, apply to all insured depository institutions for which the 
FDIC has been designated the appropriate Federal banking agency, the 
NPR proposed to amend part 308, subpart R, and part 364 and to reissue 
the appendices and supplement A to appendix B to part 364 to add 
``State savings associations'' within the list of institutions to which 
the rules and the appendices apply.

FDIC's Existing 12 CFR Part 308, Subpart R

    Section 132 of the Federal Deposit Insurance Corporation 
Improvement Act of 1991 (``FDICIA''), Pub. L. 102-242, added Section 39 
to the FDI Act (12 U.S.C. 21 1831p-1), which required each Federal 
banking agency to establish by regulation certain safety and soundness 
standards for the insured depository institutions for which it was the 
primary Federal regulator. Section 39 of the FDI Act was further 
amended on September 23, 1994 by section 318 of the Riegle Community 
Development and Regulatory Improvement Act of 1994, Pub. L. 103-325. In 
response to Section 39 of the FDI Act, the FDIC adopted subpart R of 
part 308 in 1995 to address the submission and review of safety and 
soundness compliance plans and issuance of orders to correct safety and 
soundness deficiencies.

FDIC's Existing 12 CFR Part 364 and Appendices A and B and Supplement A 
to Appendix B

    Section 132 of the FDICIA, Pub. L. 102-242, added Section 39 to the 
FDI Act (12 U.S.C. 21 1831p-1), which required each Federal banking 
agency to establish by regulation certain safety and soundness 
standards for the insured depository institutions for which it was the 
primary Federal regulator. Section 39 of the FDI Act was further 
amended on September 23, 1994 by section 318 of the Riegle Community 
Development and Regulatory Improvement Act of 1994, Pub. L. 103-325. In 
response to Section 39 of the FDI Act, the FDIC adopted part 364 in 
1995 and appendix A to part 364, the ``Interagency Guidelines 
Establishing Standards for Safety and Soundness,'' in 1995. The FDIC 
adopted appendix B to part 364, the ``Interagency Guidelines 
Establishing Information Security Standards,'' in 1998. The FDIC 
adopted supplement A to appendix B to part 364, the ``Interagency 
Guidance on Response Programs for Unauthorized Access to Customer 
Information and Customer Notice,'' in 2005.

Former OTS's 12 CFR Part 570 (Transferred to FDIC's Part 391, Subpart 
B)

    In 1995, the OTS adopted 12 CFR part 570 as a final rule governing 
safety and soundness guidelines and compliance procedures for State 
savings associations. The OTS adopted appendix A to part 570, the 
``Interagency Guidelines Establishing Standards for Safety and 
Soundness,'' in 1995, adopted appendix B to part 570, the ``Interagency 
Guidelines Establishing Information Security Standards,'' in 1998, and 
adopted the supplement to appendix B, the ``Interagency Guidance on 
Response Programs for Unauthorized Access to Customer Information and 
Customer Notice,'' in 2005.

Comparison of Former OTS's 12 CFR Part 570 (Transferred to FDIC's Part 
391, Subpart B) and FDIC's Part 364 and Part 308, Subpart R

    Despite the differences addressed above and minor technical 
nuances, the OTS's rule was otherwise substantively similar to the 
FDIC's rules governing safety and soundness guidelines and compliance 
procedures found in part 308, subpart R, and part 364 and its 
accompanying appendices and supplement. After careful comparison of the 
OTS part 570 (which existed prior to the transfer of the OTS rules to 
part 391) with the FDIC's part 308, subpart R, and the FDIC's part 364, 
the FDIC concluded that the transferred OTS rules found at part 391, 
subpart B, and the accompanying guidelines found in appendices A and B 
and the supplement to appendix B, are substantively

[[Page 65905]]

redundant. Therefore, based on the above, the NPR proposed to rescind 
and remove from the Code of Federal Regulations the rules located at 
part 391, subpart B, including its appendices and supplement.
    In addition, the NPR proposed to amend part 364 and appendix A and 
B and supplement A to appendix B to include State savings associations 
within the scope of the regulation and guidelines and minor technical 
updates. The NPR also proposed to amend part 308, subpart R to apply to 
State savings associations. The safety and soundness guidelines in part 
364 and its accompanying appendices and supplement to appendices apply 
to all FDIC-supervised institutions, and the procedures found in part 
308, subpart R, for the submission and review of safety and soundness 
compliance plans and issuance of orders to correct safety and soundness 
deficiencies also apply to all FDIC-supervised institutions.

III. Comments

    The FDIC issued the NPR with a 60-day comment period, which closed 
on March 31, 2015. The FDIC received no comments on the Proposed Rule, 
and consequently, the Final Rule is adopted as proposed without any 
changes.

IV. Explanation of the Final Rule

    As discussed in the NPR, part 391, subpart B is substantively 
similar to part 364 and part 308, subpart R for safety and soundness 
guidelines and compliance plans, and the designation of part 364 and 
part 308, Subpart R as the single authority for safety and soundness 
guidelines and compliance plans will serve to streamline the FDIC's 
rules and eliminate unnecessary regulations. To that effect, the Final 
Rule removes and rescinds 12 CFR part 391, subpart B, its appendices, 
and its supplement in their entirety. Consistent with the Proposed 
Rule, the Final Rule also make conforming and technical amendments to 
part 364 and its appendices and part 308, subpart R, making all 
applicable to state savings associations.

V. Regulatory Analysis and Procedure

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(``PRA'') of 1995 (44 U.S.C. 3501-3521), 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 part 391, subpart B, from the 
FDIC regulations. This rule was transferred with only nominal changes 
to the FDIC from the OTS when the OTS was abolished by Title III of the 
Dodd-Frank Act. Part 391, subpart B, is largely redundant of the FDIC's 
existing part 364 regarding standards for safety and soundness and 
subpart R of the FDIC's existing part 308 regarding the submission and 
review of safety and soundness compliance plans and issuance of orders 
to correct safety and soundness deficiencies.
    The Final Rule amends parts 364 and subpart R of part 308 to 
include State savings associations within the scope of those 
regulations. This measure is to clarify that State savings 
associations, as well as State nonmember insured banks and foreign 
banks having insured branches, are all subject to part 364 and the 
provisions of subpart R of part 308. Thus, these provisions of the 
Proposed Rule will neither create any new paperwork information 
collections nor impact current burden estimates. Based on the above, no 
information collection request has been submitted to the OMB for 
review.

 B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), requires that, in connection 
with a notice of proposed rulemaking, an agency prepare and make 
available for public comment an initial regulatory flexibility analysis 
that describes the impact of the proposed rule on small entities 
(defined in regulations promulgated by the Small Business 
Administration to include banking organizations with total assets of 
less than or equal to $550 million).\3\ 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 statement in the Federal Register together with the rule. 
For the reasons provided below, the FDIC certifies that the Final Rule 
will not have a significant economic impact on a substantial number of 
small entities. Accordingly, a regulatory flexibility analysis is not 
required.
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    \3\ 5 U.S.C. 601 et seq.
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    As discussed in this notice of proposed rulemaking, part 391, 
subpart B was transferred from OTS's part 570 which established safety 
and soundness guidelines and the process for requesting compliance 
plans and issuing orders to correct deficiencies. OTS's part 570 had 
been in effect since 1995, and all state savings associations were 
required to comply with it. Because it is redundant of existing part 
364 of the FDIC's rules and subpart R of part 308 of the FDIC's rules, 
the FDIC proposes rescinding and removing part 391, subpart B. As a 
result, all FDIC-supervised institutions, including State savings 
associations, would be required to comply with part 364 and part 308, 
subpart R. Because all State savings associations have been required to 
comply with substantially similar safety and soundness guidelines and 
have been subject to substantially similar procedures for the filing of 
safety and soundness compliance plans and orders to correct 
deficiencies since 1995, the Final Rule will have no significant 
economic impact on any State savings association.

C. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act, 12 U.S.C. 4809, requires 
each Federal banking agency to use plain language in all of its 
proposed and final rules published after January 1, 2000. In the NPR, 
the FDIC invited comments on whether the Proposed Rule was clearly 
stated and effectively organized, and how the FDIC might make it easier 
to understand. Although the FDIC did not receive any comments, the FDIC 
sought to present the Final Rule in a simple and straightforward 
manner.

D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under Section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of 
its regulations, at least once every 10 years, in order to identify any 
outdated or otherwise unnecessary regulations imposed on insured 
institutions.\4\ The FDIC completed the last comprehensive review of 
its regulations under EGRPRA in 2006 and is commencing the next 
decennial review. As part of the NPR, the FDIC invited comments 
concerning whether the Proposed Rule would impose any outdated or 
unnecessary regulatory requirements on insured depository institutions. 
The FDIC received no comments.
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    \4\ Pub. L. 104-208 (Sept. 30, 1996).
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List of Subjects

12 CFR Part 308

    Banks, banking, safety and soundness compliance plans, savings 
associations.

12 CFR Part 364

    Banks, banking, safety and soundness guidelines.

12 CFR Part 391

    Safety and soundness guidelines.

[[Page 65906]]

Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of 
the Federal Deposit Insurance Corporation amends parts 308, 364, and 
391 of title 12 of the Code of Federal Regulations as follows:

PART 308--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 308 continues to read as follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 
1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 
4717, 15 U.S.C. 78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 
78u-2, 78u-3, and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 
U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 
110 Stat. 1321-358; and Pub. L. 109-351.


0
2. Revise subpart R to read as follows:

Subpart R--Submission and Review of Safety and Soundness Compliance 
Plans and Issuance of Orders To Correct Safety and Soundness 
Deficiencies

Sec.
308.300 Scope.
308.301 Purpose.
308.302 Determination and notification of failure to meet a safety 
and soundness standard and request for compliance plan.
308.303 Filing of safety and soundness compliance plan.
308.304 Issuance of orders to correct deficiencies and to take or 
refrain from taking other actions.
308.305 Enforcement of orders.


Sec.  308.300  Scope.

    The rules and procedures set forth in this subpart apply to insured 
state nonmember banks, to state-licensed insured branches of foreign 
banks, that are subject to the provisions of section 39 of the Federal 
Deposit Insurance Act (section 39) (12 U.S.C. 1831p-1), and to state 
savings associations (in aggregate, bank or banks and state savings 
association or state savings associations).


Sec.  308.301  Purpose.

    Section 39 of the FDI Act requires the FDIC to establish safety and 
soundness standards. Pursuant to section 39, a bank or savings 
association may be required to submit a compliance plan if it is not in 
compliance with a safety and soundness standard established by 
guideline under section 39(a) or (b). An enforceable order under 
section 8 of the FDI Act may be issued if, after being notified that it 
is in violation of a safety and soundness standard established under 
section 39, the bank or savings association fails to submit an 
acceptable compliance plan or fails in any material respect to 
implement an accepted plan. This subpart establishes procedures for 
requiring submission of a compliance plan and issuing an enforceable 
order pursuant to section 39.


Sec.  308.302  Determination and notification of failure to meet a 
safety and soundness standard and request for compliance plan.

    (a) Determination. The FDIC may, based upon an examination, 
inspection or any other information that becomes available to the FDIC, 
determine that a bank or state savings association has failed to 
satisfy the safety and soundness standards set out in part 364 of this 
chapter and in the Interagency Guidelines Establishing Standards for 
Safety and Soundness in appendix A and the Interagency Guidelines 
Establishing Information Security Standards in appendix B to part 364 
of this chapter.
    (b) Request for compliance plan. If the FDIC determines that a bank 
or state savings association has failed a safety and soundness standard 
pursuant to paragraph (a) of this section, the FDIC may request, by 
letter or through a report of examination, the submission of a 
compliance plan and the bank or state savings association shall be 
deemed to have notice of the request three days after mailing of the 
letter by the FDIC or delivery of the report of examination.


Sec.  308.303  Filing of safety and soundness compliance plan.

    (a) Schedule for filing compliance plan--(1) In general. A bank or 
state savings association shall file a written safety and soundness 
compliance plan with the FDIC within 30 days of receiving a request for 
a compliance plan pursuant to Sec.  308.302(b), unless the FDIC 
notifies the bank or state savings association in writing that the plan 
is to be filed within a different period.
    (2) Other plans. If a bank or state savings association is 
obligated to file, or is currently operating under, a capital 
restoration plan submitted pursuant to section 38 of the FDI Act (12 
U.S.C. 1831o), a cease-and-desist order entered into pursuant to 
section 8 of the FDI Act, a formal or informal agreement, or a response 
to a report of examination or report of inspection, it may, with the 
permission of the FDIC, submit a compliance plan under this section as 
part of that plan, order, agreement, or response, subject to the 
deadline provided in paragraph (a)(1) of this section.
    (b) Contents of plan. The compliance plan shall include a 
description of the steps the bank or state savings association will 
take to correct the deficiency and the time within which those steps 
will be taken.
    (c) Review of safety and soundness compliance plans. Within 30 days 
after receiving a safety and soundness compliance plan under this 
subpart, the FDIC shall provide written notice to the bank or state 
savings association of whether the plan has been approved or seek 
additional information from the bank or state savings association 
regarding the plan. The FDIC may extend the time within which notice 
regarding approval of a plan will be provided.
    (d) Failure to submit or implement a compliance plan--(1) 
Supervisory actions. If a bank or state savings association fails to 
submit an acceptable plan within the time specified by the FDIC or 
fails in any material respect to implement a compliance plan, then the 
FDIC shall, by order, require the bank or state savings association to 
correct the deficiency and may take further actions provided in section 
39(e)(2)(B). Pursuant to section 39(e)(3), the FDIC may be required to 
take certain actions if the bank or state savings association commenced 
operations or experienced a change in control within the previous 24-
month period, or the bank or state savings association experienced 
extraordinary growth during the previous 18-month period.
    (2) Extraordinary growth. For purposes of paragraph (d)(1) of this 
section, extraordinary growth means an increase in assets of more than 
7.5 percent during any quarter within the 18-month period preceding the 
issuance of a request for submission of a compliance plan, by a bank or 
state savings association that is not well capitalized for purposes of 
section 38 of the FDI Act. For purposes of calculating an increase in 
assets, assets acquired through merger or acquisition approved pursuant 
to the Bank Merger Act (12 U.S.C. 1828(c)) will be excluded.
    (e) Amendment of compliance plan. A bank or state savings 
association that has filed an approved compliance plan may, after prior 
written notice to and approval by the FDIC, amend the plan to reflect a 
change in circumstance. Until such time as a proposed amendment has 
been approved, the bank or state savings association shall implement 
the compliance plan as previously approved.

[[Page 65907]]

Sec.  308.304  Issuance of orders to correct deficiencies and to take 
or refrain from taking other actions.

    (a) Notice of intent to issue order--(1) In general. The FDIC shall 
provide a bank or state savings association prior written notice of the 
FDIC's intention to issue an order requiring the bank or state savings 
association to correct a safety and soundness deficiency or to take or 
refrain from taking other actions pursuant to section 39 of the FDI 
Act. The bank or state savings association shall have such time to 
respond to a proposed order as provided by the FDIC under paragraph (c) 
of this section.
    (2) Immediate issuance of final order. If the FDIC finds it 
necessary in order to carry out the purposes of section 39 of the FDI 
Act, the FDIC may, without providing the notice prescribed in paragraph 
(a)(1) of this section, issue an order requiring a bank or state 
savings association immediately to take actions to correct a safety and 
soundness deficiency or take or refrain from taking other actions 
pursuant to section 39. A bank or state savings association that is 
subject to such an immediately effective order may submit a written 
appeal of the order to the FDIC. Such an appeal must be received by the 
FDIC within 14 calendar days of the issuance of the order, unless the 
FDIC permits a longer period. The FDIC shall consider any such appeal, 
if filed in a timely matter, within 60 days of receiving the appeal. 
During such period of review, the order shall remain in effect unless 
the FDIC, in its sole discretion, stays the effectiveness of the order.
    (b) Contents of notice. A notice of intent to issue an order shall 
include:
    (1) A statement of the safety and soundness deficiency or 
deficiencies that have been identified at the bank or state savings 
association;
    (2) A description of any restrictions, prohibitions, or affirmative 
actions that the FDIC proposes to impose or require;
    (3) The proposed date when such restrictions or prohibitions would 
be effective or the proposed date for completion of any required 
action; and
    (4) The date by which the bank or state savings association subject 
to the order may file with the FDIC a written response to the notice.
    (c) Response to notice--(1) Time for response. A bank or state 
savings association may file a written response to a notice of intent 
to issue an order within the time period set by the FDIC. Such a 
response must be received by the FDIC within 14 calendar days from the 
date of the notice unless the FDIC determines that a different period 
is appropriate in light of the safety and soundness of the bank or 
state savings association or other relevant circumstances.
    (2) Contents of response. The response should include:
    (i) An explanation why the action proposed by the FDIC is not an 
appropriate exercise of discretion under section 39;
    (ii) Any recommended modification of the proposed order; and
    (iii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
or state savings association regarding the proposed order.
    (d) Agency consideration of response. After considering the 
response, the FDIC may:
    (1) Issue the order as proposed or in modified form;
    (2) Determine not to issue the order and so notify the bank or 
state savings association; or
    (3) Seek additional information or clarification of the response 
from the bank or state savings association, or any other relevant 
source.
    (e) Failure to file response. Failure by a bank or state savings 
association to file with the FDIC, within the specified time period, a 
written response to a proposed order shall constitute a waiver of the 
opportunity to respond and shall constitute consent to the issuance of 
the order.
    (f) Request for modification of rescission of order. Any bank or 
state savings association that is subject to an order under this 
subpart may, upon a change in circumstances, request in writing that 
the FDIC reconsider the terms of the order, and may propose that the 
order be rescinded or modified. Unless otherwise ordered by the FDIC, 
the order shall continue in place while such request is pending before 
the FDIC.


Sec.  308.305  Enforcement of orders.

    (a) Judicial remedies. Whenever a bank or state savings association 
fails to comply with an order issued under section 39, the FDIC may 
seek enforcement of the order in the appropriate United States district 
court pursuant to section 8(i)(1) of the FDI Act.
    (b) Failure to comply with order. Pursuant to section 8(i)(2)(A) of 
the FDI Act, the FDIC may assess a civil money penalty against any bank 
or state savings association that violates or otherwise fails to comply 
with any final order issued under section 39 and against any 
institution-affiliated party who participates in such violation or 
noncompliance.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the FDIC may seek 
enforcement of the provisions of section 39 or this part through any 
other judicial or administrative proceeding authorized by law.

0
3. Revise part 364 to read as follows:

PART 364--STANDARDS FOR SAFETY AND SOUNDNESS

Sec.
364.100 Purpose.
364.101 Standards for safety and soundness.
Appendix A to Part 364--Interagency Guidelines Establishing 
Standards for Safety and Soundness
Appendix B to Part 364--Interagency Guidelines Establishing 
Information Security Standards

    Authority: 12 U.S.C. 1818 and 1819 (Tenth), 1831p-1; 15 U.S.C. 
1681b, 1681s, 1681w, 6801(b), 6805(b)(1).


Sec.  364.100  Purpose.

    Section 39 of the Federal Deposit Insurance Act requires the 
Federal Deposit Insurance Corporation to establish safety and soundness 
standards. Pursuant to section 39, this part establishes safety and 
soundness standards by guideline.


Sec.  364.101  Standards for safety and soundness.

    (a) General standards. The Interagency Guidelines Establishing 
Standards for Safety and Soundness prescribed pursuant to section 39 of 
the Federal Deposit Insurance Act (12 U.S.C. 1831p-1), as set forth as 
appendix A to this part, apply to all insured state nonmember banks, to 
state-licensed insured branches of foreign banks, that are subject to 
the provisions of section 39 of the Federal Deposit Insurance Act, and 
to state savings associations (in aggregate, bank or banks and savings 
association or savings associations).
    (b) Interagency Guidelines Establishing Information Security 
Standards. The Interagency Guidelines Establishing Information Security 
Standards prescribed pursuant to section 39 of the Federal Deposit 
Insurance Act (12 U.S.C. 1831p-1), and sections 501 and 505(b) of the 
Gramm-Leach-Bliley Act (15 U.S.C. 6801, 6805(b)), and with respect to 
the proper disposal of consumer information requirements pursuant to 
section 628 of the Fair Credit Reporting Act (15 U.S.C. 1681w), as set 
forth in appendix B to this part, apply to all insured state nonmember 
banks, insured state licensed branches of foreign banks, any 
subsidiaries of such entities (except brokers, dealers, persons 
providing

[[Page 65908]]

insurance, investment companies, and investment advisers), and to state 
savings associations. The interagency regulations and guidelines on 
identity theft detection, prevention, and mitigation prescribed 
pursuant to section 114 of the Fair and Accurate Credit Transactions 
Act of 2003, 15 U.S.C. 1681m(e), are set forth in Sec. Sec.  334.90, 
334.91, and Appendix J of part 334.

Appendix A to Part 364--Interagency Guidelines Establishing Standards 
for Safety and Soundness

I. Introduction.
    A. Preservation of existing authority.
    B. Definitions.
II. Operational and Managerial Standards.
    A. Internal controls and information systems.
    B. Internal audit system.
    C. Loan documentation.
    D. Credit underwriting.
    E. Interest rate exposure.
    F. Asset growth.
    G. Asset quality.
    H. Earnings.
    I. Compensation, fees and benefits.
III. Prohibition on Compensation That Constitutes an Unsafe and 
Unsound Practice.
    A. Excessive compensation.
    B. Compensation leading to material financial loss.

I. Introduction

    i. Section 39 of the Federal Deposit Insurance Act \1\ (FDI Act) 
requires each Federal banking agency (collectively, the agencies) to 
establish certain safety and soundness standards by regulation or by 
guidelines for all insured depository institutions. Under section 
39, the agencies must establish three types of standards: (1) 
Operational and managerial standards; (2) compensation standards; 
and (3) such standards relating to asset quality, earnings, and 
stock valuation as they determine to be appropriate.
    ii. Section 39(a) requires the agencies to establish operational 
and managerial standards relating to: (1) Internal controls, 
information systems and internal audit systems, in accordance with 
section 36 of the FDI Act (12 U.S.C. 1831m); (2) loan documentation; 
(3) credit underwriting; (4) interest rate exposure; (5) asset 
growth; and (6) compensation, fees, and benefits, in accordance with 
subsection (c) of section 39. Section 39(b) requires the agencies to 
establish standards relating to asset quality, earnings, and stock 
valuation that the agencies determine to be appropriate.
    iii. Section 39(c) requires the agencies to establish standards 
prohibiting as an unsafe and unsound practice any compensatory 
arrangement that would provide any executive officer, employee, 
director, or principal shareholder of the institution with excessive 
compensation, fees or benefits and any compensatory arrangement that 
could lead to material financial loss to an institution. Section 
39(c) also requires that the agencies establish standards that 
specify when compensation is excessive.
    iv. If an agency determines that an institution fails to meet 
any standard established by guidelines under subsection (a) or (b) 
of section 39, the agency may require the institution to submit to 
the agency an acceptable plan to achieve compliance with the 
standard. In the event that an institution fails to submit an 
acceptable plan within the time allowed by the agency or fails in 
any material respect to implement an accepted plan, the agency must, 
by order, require the institution to correct the deficiency. The 
agency may, and in some cases must, take other supervisory actions 
until the deficiency has been corrected.
    v. The agencies have adopted amendments to their rules and 
regulations to establish deadlines for submission and review of 
compliance plans.\2\
    vi. The following Guidelines set out the safety and soundness 
standards that the agencies use to identify and address problems at 
insured depository institutions before capital becomes impaired. The 
agencies believe that the standards adopted in these Guidelines 
serve this end without dictating how institutions must be managed 
and operated. These standards are designed to identify potential 
safety and soundness concerns and ensure that action is taken to 
address those concerns before they pose a risk to the Deposit 
Insurance Fund.

A. Preservation of Existing Authority

    Neither section 39 nor these Guidelines in any way limits the 
authority of the agencies to address unsafe or unsound practices, 
violations of law, unsafe or unsound conditions, or other practices. 
Action under section 39 and these Guidelines may be taken 
independently of, in conjunction with, or in addition to any other 
enforcement action available to the agencies. Nothing in these 
Guidelines limits the authority of the FDIC pursuant to section 
38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and Part 325 of Title 
12 of the Code of Federal Regulations.

B. Definitions

    1. In general. For purposes of these Guidelines, except as 
modified in the Guidelines or unless the context otherwise requires, 
the terms used have the same meanings as set forth in sections 3 and 
39 of the FDI Act (12 U.S.C. 1813 and 1831p-1).
    2. Board of directors, in the case of a state-licensed insured 
branch of a foreign bank and in the case of a federal branch of a 
foreign bank, means the managing official in charge of the insured 
foreign branch.
    3. Compensation means all direct and indirect payments or 
benefits, both cash and non-cash, granted to or for the benefit of 
any executive officer, employee, director, or principal shareholder, 
including but not limited to payments or benefits derived from an 
employment contract, compensation or benefit agreement, fee 
arrangement, perquisite, stock option plan, postemployment benefit, 
or other compensatory arrangement.
    4. Director shall have the meaning described in 12 CFR 
215.2(d).\3\
    5. Executive officer shall have the meaning described in 12 CFR 
215.2(e).\4\
    6. Principal shareholder shall have the meaning described in 12 
CFR 215.2(m).\5\

II. Operational and Managerial Standards

    A. Internal controls and information systems. An institution 
should have internal controls and information systems that are 
appropriate to the size of the institution and the nature, scope and 
risk of its activities and that provide for:
    1. An organizational structure that establishes clear lines of 
authority and responsibility for monitoring adherence to established 
policies;
    2. Effective risk assessment;
    3. Timely and accurate financial, operational and regulatory 
reports;
    4. Adequate procedures to safeguard and manage assets; and
    5. Compliance with applicable laws and regulations.
    B. Internal audit system. An institution should have an internal 
audit system that is appropriate to the size of the institution and 
the nature and scope of its activities and that provides for:
    1. Adequate monitoring of the system of internal controls 
through an internal audit function. For an institution whose size, 
complexity or scope of operations does not warrant a full scale 
internal audit function, a system of independent reviews of key 
internal controls may be used;
    2. Independence and objectivity;
    3. Qualified persons;
    4. Adequate testing and review of information systems;
    5. Adequate documentation of tests and findings and any 
corrective actions;
    6. Verification and review of management actions to address 
material weaknesses; and
    7. Review by the institution's audit committee or board of 
directors of the effectiveness of the internal audit systems.
    C. Loan documentation. An institution should establish and 
maintain loan documentation practices that:
    1. Enable the institution to make an informed lending decision 
and to assess risk, as necessary, on an ongoing basis;
    2. Identify the purpose of a loan and the source of repayment, 
and assess the ability of the borrower to repay the indebtedness in 
a timely manner;
    3. Ensure that any claim against a borrower is legally 
enforceable;
    4. Demonstrate appropriate administration and monitoring of a 
loan; and
    5. Take account of the size and complexity of a loan.
    D. Credit underwriting. An institution should establish and 
maintain prudent credit underwriting practices that:
    1. Are commensurate with the types of loans the institution will 
make and consider the terms and conditions under which they will be 
made;
    2. Consider the nature of the markets in which loans will be 
made;
    3. Provide for consideration, prior to credit commitment, of the 
borrower's overall financial condition and resources, the financial 
responsibility of any guarantor, the nature and value of any 
underlying collateral,

[[Page 65909]]

and the borrower's character and willingness to repay as agreed;
    4. Establish a system of independent, ongoing credit review and 
appropriate communication to management and to the board of 
directors;
    5. Take adequate account of concentration of credit risk; and
    6. Are appropriate to the size of the institution and the nature 
and scope of its activities.
    E. Interest rate exposure. An institution should:
    1. Manage interest rate risk in a manner that is appropriate to 
the size of the institution and the complexity of its assets and 
liabilities; and
    2. Provide for periodic reporting to management and the board of 
directors regarding interest rate risk with adequate information for 
management and the board of directors to assess the level of risk.
    F. Asset growth. An institution's asset growth should be prudent 
and consider:
    1. The source, volatility and use of the funds that support 
asset growth;
    2. Any increase in credit risk or interest rate risk as a result 
of growth; and
    3. The effect of growth on the institution's capital.
    G. Asset quality. An insured depository institution should 
establish and maintain a system that is commensurate with the 
institution's size and the nature and scope of its operations to 
identify problem assets and prevent deterioration in those assets. 
The institution should:
    1. Conduct periodic asset quality reviews to identify problem 
assets;
    2. Estimate the inherent losses in those assets and establish 
reserves that are sufficient to absorb estimated losses;
    3. Compare problem asset totals to capital;
    4. Take appropriate corrective action to resolve problem assets;
    5. Consider the size and potential risks of material asset 
concentrations; and
    6. Provide periodic asset reports with adequate information for 
management and the board of directors to assess the level of asset 
risk.
    H. Earnings. An insured depository institution should establish 
and maintain a system that is commensurate with the institution's 
size and the nature and scope of its operations to evaluate and 
monitor earnings and ensure that earnings are sufficient to maintain 
adequate capital and reserves. The institution should:
    1. Compare recent earnings trends relative to equity, assets, or 
other commonly used benchmarks to the institution's historical 
results and those of its peers;
    2. Evaluate the adequacy of earnings given the size, complexity, 
and risk profile of the institution's assets and operations;
    3. Assess the source, volatility, and sustainability of 
earnings, including the effect of nonrecurring or extraordinary 
income or expense;
    4. Take steps to ensure that earnings are sufficient to maintain 
adequate capital and reserves after considering the institution's 
asset quality and growth rate; and
    5. Provide periodic earnings reports with adequate information 
for management and the board of directors to assess earnings 
performance.
    I. Compensation, fees and benefits. An institution should 
maintain safeguards to prevent the payment of compensation, fees, 
and benefits that are excessive or that could lead to material 
financial loss to the institution.

III. Prohibition on Compensation That Constitutes an Unsafe and Unsound 
Practice

A. Excessive Compensation

    Excessive compensation is prohibited as an unsafe and unsound 
practice. Compensation shall be considered excessive when amounts 
paid are unreasonable or disproportionate to the services performed 
by an executive officer, employee, director, or principal 
shareholder, considering the following:
    1. The combined value of all cash and noncash benefits provided 
to the individual;
    2. The compensation history of the individual and other 
individuals with comparable expertise at the institution;
    3. The financial condition of the institution;
    4. Comparable compensation practices at comparable institutions, 
based upon such factors as asset size, geographic location, and the 
complexity of the loan portfolio or other assets;
    5. For postemployment benefits, the projected total cost and 
benefit to the institution;
    6. Any connection between the individual and any fraudulent act 
or omission, breach of trust or fiduciary duty, or insider abuse 
with regard to the institution; and
    7. Any other factors the agencies determine to be relevant.
    B. Compensation Leading to Material Financial Loss
    Compensation that could lead to material financial loss to an 
institution is prohibited as an unsafe and unsound practice.

    \1\ Section 39 of the Federal Deposit Insurance Act (12 U.S.C. 
1831p-1) was added by section 132 of the Federal Deposit Insurance 
Corporation Improvement Act of 1991 (FDICIA), Pub. L. 102-242, 105 
Stat. 2236 (1991), and amended by section 956 of the Housing and 
Community Development Act of 1992, Pub. L. 102-550, 106 Stat. 3895 
(1992) and section 318 of the Riegle Community Development and 
Regulatory Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2160 
(1994).
    \2\ For the Office of the Comptroller of the Currency, these 
regulations appear at 12 CFR Part 30; for the Board of Governors of 
the Federal Reserve System, these regulations appear at 12 CFR Part 
263; and for the Federal Deposit Insurance Corporation, these 
regulations appear at 12 CFR Part 308, subpart R.
    \3\ In applying these definitions for savings associations, 
pursuant to 12 U.S.C. 1464, savings associations shall use the terms 
``savings association'' and ``insured savings association'' in place 
of the terms ``member bank'' and ``insured bank''.
    \4\ See footnote 3 in section I.B.4. of this appendix.
    \5\ See footnote 3 in section I.B.4. of this appendix.

Appendix B to Part 364--Interagency Guidelines Establishing Information

Security Standards

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    The Interagency Guidelines Establishing Information Security 
Standards (Guidelines) set forth standards pursuant to section 39 of 
the Federal Deposit Insurance Act, 12 U.S.C. 1831p-1, and sections 
501 and 505(b), 15 U.S.C. 6801 and 6805(b), of the Gramm-Leach-
Bliley Act. These Guidelines address standards for developing and 
implementing administrative, technical, and physical safeguards to 
protect the security, confidentiality, and integrity of customer 
information. These Guidelines also address standards with respect to 
the proper disposal of consumer information pursuant to sections 621 
and 628 of the Fair Credit Reporting Act (15 U.S.C. 1681s and 
1681w).
    A. Scope. The Guidelines apply to customer information 
maintained by or on behalf of, and to the disposal of consumer 
information by or on the behalf of, entities over which the Federal 
Deposit Insurance Corporation (FDIC) has authority. Such entities, 
referred to as ``insured depository institution'' or ``institution'' 
are banks insured by the FDIC (other than members of the Federal 
Reserve System), state savings associations insured by the FDIC, 
insured state branches of foreign banks, and any subsidiaries of 
such entities (except brokers, dealers, persons providing insurance, 
investment companies, and investment advisers).
    B. Preservation of Existing Authority. Neither section 39 nor 
these Guidelines in any way limit the authority of the FDIC to 
address unsafe or unsound practices, violations of law, unsafe or 
unsound conditions, or other practices. The FDIC may take action 
under section 39 and these Guidelines independently of, in 
conjunction with, or in addition to, any other enforcement action 
available to the FDIC.
    C. Definitions. 1. Except as modified in the Guidelines, or 
unless the context otherwise requires, the terms used in these 
Guidelines have the same meanings as set forth in sections 3 and 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions 
apply:
    a. Board of directors, in the case of a branch or agency of a 
foreign bank, means the

[[Page 65910]]

managing official in charge of the branch or agency.
    b. Consumer Information means any record about an individual, 
whether in paper, electronic, or other form, that is a consumer 
report or is derived from a consumer report and that is maintained 
or otherwise possessed by or on behalf of the institution for a 
business purpose. Consumer information also means a compilation of 
such records. The term does not include any record that does not 
personally identify an individual.
    i. Examples: (1) Consumer information includes:
    (A) A consumer report that an institution obtains;
    (B) information from a consumer report that the institution 
obtains from its affiliate after the consumer has been given a 
notice and has elected not to opt out of that sharing;
    (C) information from a consumer report that the institution 
obtains about an individual who applies for but does not receive a 
loan, including any loan sought by an individual for a business 
purpose;
    (D) information from a consumer report that the institution 
obtains about an individual who guarantees a loan (including a loan 
to a business entity); or
    (E) information from a consumer report that the institution 
obtains about an employee or prospective employee.
    (2) Consumer information does not include:
    (A) aggregate information, such as the mean score, derived from 
a group of consumer reports; or
    (B) blind data, such as payment history on accounts that are not 
personally identifiable, that may be used for developing credit 
scoring models or for other purposes.
    c. Consumer report has the same meaning as set forth in the Fair 
Credit Reporting Act, 15 U.S.C. 1681a(d).
    d. Customer means any customer of the institution as defined in 
Sec.  332.3(h) of this chapter.
    e. Customer information means any record containing nonpublic 
personal information, as defined in Sec.  332.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that 
is maintained by or on behalf of the institution.
    f. Customer information systems means any methods used to 
access, collect, store, use, transmit, protect, or dispose of 
customer information.
    g. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
or consumer information through its provision of services directly 
to the institution.

II. Standards for Information Security

    A. Information Security Program. Each insured depository 
institution shall implement a comprehensive written information 
security program that includes administrative, technical, and 
physical safeguards appropriate to the size and complexity of the 
institution and the nature and scope of its activities. While all 
parts of the institution are not required to implement a uniform set 
of policies, all elements of the information security program must 
be coordinated.
    B. Objectives. An institution's information security program 
shall be designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information;
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer; and
    4 Ensure the proper disposal of customer information and 
consumer information.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. The board of directors or an 
appropriate committee of the board of each insured depository 
institution shall:
    1. Approve the institution's written information security 
program; and
    2. Oversee the development, implementation, and maintenance of 
the institution's information security program, including assigning 
specific responsibility for its implementation and reviewing reports 
from management.
    B. Assess Risk.
    Each institution shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.
    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control 
risks.
    C. Manage and Control Risk. Each institution shall:
    1. Design its information security program to control the 
identified risks, commensurate with the sensitivity of the 
information as well as the complexity and scope of the institution's 
activities. Each institution must consider whether the following 
security measures are appropriate for the institution and, if so, 
adopt those measures the institution concludes are appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means.
    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including 
while in transit or in storage on networks or systems to which 
unauthorized individuals may have access;
    d. Procedures designed to ensure that customer information 
system modifications are consistent with the institution's 
information security program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access 
to customer information;
    f. Monitoring systems and procedures to detect actual and 
attempted attacks on or intrusions into customer information 
systems;
    g. Response programs that specify actions to be taken when the 
institution suspects or detects that unauthorized individuals have 
gained access to customer information systems, including appropriate 
reports to regulatory and law enforcement agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement the institution's information 
security program.
    3. Regularly test the key controls, systems and procedures of 
the information security program. The frequency and nature of such 
tests should be determined by the institution's risk assessment. 
Tests should be conducted or reviewed by independent third parties 
or staff independent of those that develop or maintain the security 
programs.
    4. Develop, implement, and maintain, as part of its information 
security program, appropriate measures to properly dispose of 
customer information and consumer information in accordance with 
each of the requirements of this paragraph III.
    D. Oversee Service Provider Arrangements. Each institution 
shall:
    1. Exercise appropriate due diligence in selecting its service 
providers;
    2. Require its service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by the institution's risk assessment, monitor 
its service providers to confirm that they have satisfied their 
obligations as required by paragraph D.2. As part of this 
monitoring, an institution should review audits, summaries of test 
results, or other equivalent evaluations of its service providers.
    E. Adjust the Program. Each institution shall monitor, evaluate, 
and adjust, as appropriate, the information security program in 
light of any relevant changes in technology, the sensitivity of its 
customer information, internal or external threats to information, 
and the institution's own changing business arrangements, such as 
mergers and acquisitions, alliances and joint ventures, outsourcing 
arrangements, and changes to customer information systems.
    F. Report to the Board. Each institution shall report to its 
board or an appropriate committee of the board at least annually. 
This report should describe the overall status of the information 
security program and the institution's compliance with these 
Guidelines. The report, which will vary depending upon the 
complexity of each institution's program should discuss material 
matters related to its program, addressing issues such as: Risk 
assessment; risk management and control decisions; service provider 
arrangements; results of testing;

[[Page 65911]]

security breaches or violations, and management's responses; and 
recommendations for changes in the information security program.
    G. Implement the Standards. 1. Effective date. Each institution 
must implement an information security program pursuant to these 
Guidelines by July 1, 2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that an institution has entered into 
with a service provider to perform services for it or functions on 
its behalf, satisfies the provisions of paragraph III.D., even if 
the contract does not include a requirement that the servicer 
maintain the security and confidentiality of customer information as 
long as the institution entered into the contract on or before March 
5, 2001.
    3. Effective date for measures relating to the disposal of 
consumer information. Each institution must satisfy these Guidelines 
with respect to the proper disposal of consumer information by July 
1, 2005.
    4. Exception for existing agreements with service providers 
relating to the disposal of consumer information. Notwithstanding 
the requirement in paragraph III.G.3., an institution's contracts 
with its service providers that have access to consumer information 
and that may dispose of consumer information, entered into before 
July 1, 2005, must comply with the provisions of the Guidelines 
relating to the proper disposal of consumer information by July 1, 
2006.


Supplement A to Appendix B to Part 364 Interagency Guidance on Response 
Programs for Unauthorized Access to Customer Information and Customer 
Notice

I. Background

    This Guidance \1\ interprets section 501(b) of the Gramm-Leach-
Bliley Act (GLBA) and the Interagency Guidelines Establishing 
Information Security Standards (the Security Guidelines) \2\ and 
describes response programs, including customer notification 
procedures, that a financial institution should develop and 
implement to address unauthorized access to or use of customer 
information that could result in substantial harm or inconvenience 
to a customer. The scope of, and definitions of terms used in, this 
Guidance are identical to those of the Security Guidelines. For 
example, the term ``customer information'' is the same term used in 
the Security Guidelines, and means any record containing nonpublic 
personal information about a customer, whether in paper, electronic, 
or other form, maintained by or on behalf of the institution.

A. Interagency Security Guidelines

    Section 501(b) of the GLBA required the Agencies to establish 
appropriate standards for financial institutions subject to their 
jurisdiction that include administrative, technical, and physical 
safeguards, to protect the security and confidentiality of customer 
information. Accordingly, the Agencies issued Security Guidelines 
requiring every financial institution to have an information 
security program designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer.

B. Risk Assessment and Controls

    1. The Security Guidelines direct every financial institution to 
assess the following risks, among others, when developing its 
information security program:
    a. Reasonably foreseeable internal and external threats that 
could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems;
    b. The likelihood and potential damage of threats, taking into 
consideration the sensitivity of customer information; and
    c. The sufficiency of policies, procedures, customer information 
systems, and other arrangements in place to control risks.\3\
    2. Following the assessment of these risks, the Security 
Guidelines require a financial institution to design a program to 
address the identified risks. The particular security measures an 
institution should adopt will depend upon the risks presented by the 
complexity and scope of its business. At a minimum, the financial 
institution is required to consider the specific security measures 
enumerated in the Security Guidelines,\4\ and adopt those that are 
appropriate for the institution, including:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means;
    b. Background checks for employees with responsibilities for 
access to customer information; and
    c. Response programs that specify actions to be taken when the 
financial institution suspects or detects that unauthorized 
individuals have gained access to customer information systems, 
including appropriate reports to regulatory and law enforcement 
agencies.\5\

C. Service Providers

    The Security Guidelines direct every financial institution to 
require its service providers by contract to implement appropriate 
measures designed to protect against unauthorized access to or use 
of customer information that could result in substantial harm or 
inconvenience to any customers.\6\

II. Response Program

    Millions of Americans, throughout the country, have been victims 
of identity theft.\7\ Identity thieves misuse personal information 
they obtain from a number of sources, including financial 
institutions, to perpetrate identity theft. Therefore, financial 
institutions should take preventative measures to safeguard customer 
information against attempts to gain unauthorized access to the 
information. For example, financial institutions should place access 
controls on customer information systems and conduct background 
checks for employees who are authorized to access customer 
information.\8\ However, every financial institution should also 
develop and implement a risk-based response program to address 
incidents of unauthorized access to customer information in customer 
information systems \9\ that occur nonetheless. A response program 
should be a key part of an institution's information security 
program.\10\ The program should be appropriate to the size and 
complexity of the institution and the nature and scope of its 
activities.
    In addition, each institution should be able to address 
incidents of unauthorized access to customer information in customer 
information systems maintained by its domestic and foreign service 
providers. Therefore, consistent with the obligations in the 
Guidelines that relate to these arrangements, and with existing 
guidance on this topic issued by the Agencies,\11\ an institution's 
contract with its service provider should require the service 
provider to take appropriate actions to address incidents of 
unauthorized access to the financial institution's customer 
information, including notification to the institution as soon as 
possible of any such incident, to enable the institution to 
expeditiously implement its response program.

A. Components of a Response Program

    1. At a minimum, an institution's response program should 
contain procedures for the following:
    a. Assessing the nature and scope of an incident, and 
identifying what customer information systems and types of customer 
information have been accessed or misused;
    b. Notifying its primary Federal regulator as soon as possible 
when the institution becomes aware of an incident involving 
unauthorized access to or use of sensitive customer information, as 
defined below;
    c. Consistent with the Agencies' Suspicious Activity Report 
(``SAR'') regulations,\12\ notifying appropriate law enforcement 
authorities, in addition to filing a timely SAR in situations 
involving Federal criminal violations requiring immediate attention, 
such as when a reportable violation is ongoing;
    d. Taking appropriate steps to contain and control the incident 
to prevent further unauthorized access to or use of customer 
information, for example, by monitoring, freezing, or closing 
affected accounts, while preserving records and other evidence; \13\ 
and
    e. Notifying customers when warranted.
    2. Where an incident of unauthorized access to customer 
information involves customer information systems maintained by an 
institution's service providers, it is the responsibility of the 
financial institution to notify the institution's customers and 
regulator. However, an institution may authorize or contract with 
its service provider to notify the institutions' customers or 
regulator on its behalf.

III. Customer Notice

    Financial institutions have an affirmative duty to protect their 
customers' information against unauthorized access or use. Notifying

[[Page 65912]]

customers of a security incident involving the unauthorized access 
or use of the customer's information in accordance with the standard 
set forth below is a key part of that duty. Timely notification of 
customers is important to manage an institution's reputation risk. 
Effective notice also may reduce an institution's legal risk, assist 
in maintaining good customer relations, and enable the institution's 
customers to take steps to protect themselves against the 
consequences of identity theft. When customer notification is 
warranted, an institution may not forgo notifying its customers of 
an incident because the institution believes that it may be 
potentially embarrassed or inconvenienced by doing so.

A. Standard for Providing Notice

    When a financial institution becomes aware of an incident of 
unauthorized access to sensitive customer information, the 
institution should conduct a reasonable investigation to promptly 
determine the likelihood that the information has been or will be 
misused. If the institution determines that misuse of its 
information about a customer has occurred or is reasonably possible, 
it should notify the affected customer as soon as possible. Customer 
notice may be delayed if an appropriate law enforcement agency 
determines that notification will interfere with a criminal 
investigation and provides the institution with a written request 
for the delay. However, the institution should notify its customers 
as soon as notification will no longer interfere with the 
investigation.

1. Sensitive Customer Information

    Under the Guidelines, an institution must protect against 
unauthorized access to or use of customer information that could 
result in substantial harm or inconvenience to any customer. 
Substantial harm or inconvenience is most likely to result from 
improper access to sensitive customer information because this type 
of information is most likely to be misused, as in the commission of 
identity theft. For purposes of this Guidance, sensitive customer 
information means a customer's name, address, or telephone number, 
in conjunction with the customer's social security number, driver's 
license number, account number, credit or debit card number, or a 
personal identification number or password that would permit access 
to the customer's account. Sensitive customer information also 
includes any combination of components of customer information that 
would allow someone to log onto or access the customer's account, 
such as user name or password or password and account number.

2. Affected Customers

    If a financial institution, based upon its investigation, can 
determine from its logs or other data precisely which customers' 
information has been improperly accessed, it may limit notification 
to those customers with regard to whom the institution determines 
that misuse of their information has occurred or is reasonably 
possible. However, there may be situations where the institution 
determines that a group of files has been accessed improperly, but 
is unable to identify which specific customers' information has been 
accessed. If the circumstances of the unauthorized access lead the 
institution to determine that misuse of the information is 
reasonably possible, it should notify all customers in the group.

B. Content of Customer Notice

    1. Customer notice should be given in a clear and conspicuous 
manner. The notice should describe the incident in general terms and 
the type of customer information that was the subject of 
unauthorized access or use. It also should generally describe what 
the institution has done to protect the customers' information from 
further unauthorized access. In addition, it should include a 
telephone number that customers can call for further information and 
assistance.\14\ The notice also should remind customers of the need 
to remain vigilant over the next twelve to twenty-four months, and 
to promptly report incidents of suspected identify theft to the 
institution. The notice should include the following additional 
items, when appropriate:
    a. A recommendation that the customer review account statements 
and immediately report any suspicious activity to the institution;
    b. A description of fraud alerts and an explanation of how the 
customer may place a fraud alert in the customer's consumer reports 
to put the customer's creditors on notice that the customer may be a 
victim of fraud;
    c. A recommendation that the customer periodically obtain credit 
reports from each nationwide credit reporting agency and have 
information relating to fraudulent transactions deleted;
    d. An explanation of how the customer may obtain a credit report 
free of charge; and
    e. Information about the availability of the FTC's online 
guidance regarding steps a consumer can take to protect against 
identity theft. The notice should encourage the customer to report 
any incidents of identity theft to the FTC, and should provide the 
FTC's Web site address and toll-free telephone number that customers 
may use to obtain the identity theft guidance and report suspected 
incidents of identity theft.\15\
    2. The Agencies encourage financial institutions to notify the 
nationwide consumer reporting agencies prior to sending notices to a 
large number of customers that include contact information for the 
reporting agencies.

C. Delivery of Customer Notice

    Customer notice should be delivered in any manner designed to 
ensure that a customer can reasonably be expected to receive it. For 
example, the institution may choose to contact all customers 
affected by telephone or by mail, or by electronic mail for those 
customers for whom it has a valid email address and who have agreed 
to receive communications electronically.

    \1\ This Guidance was jointly issued by the Board of Governors 
of the Federal Reserve System (Board), the Federal Deposit Insurance 
Corporation (FDIC), the Office of the Comptroller of the Currency 
(OCC), and the Office of Thrift Supervision (OTS). Pursuant to 12 
U.S.C. 5412, the OTS is no longer a party to this Guidance.
    \2\ 12 CFR part 30, app. B (OCC); 12 CFR part 208, app. D-2 and 
part 225, app. F (Board); and 12 CFR part 364, app. B (FDIC). The 
``Interagency Guidelines Establishing Information Security 
Standards'' were formerly known as ``The Interagency Guidelines 
Establishing Standards for Safeguarding Customer Information.''
    \3\ See Security Guidelines, III.B.
    \4\ See Security Guidelines, III.C.
    \5\ See Security Guidelines, III.C.
    \6\ See Security Guidelines, II.B, and III.D. Further, the 
Agencies note that, in addition to contractual obligations to a 
financial institution, a service provider may be required to 
implement its own comprehensive information security program in 
accordance with the Safeguards Rule promulgated by the Federal Trade 
Commission (FTC), 12 CFR part 314.
    \7\ The FTC estimates that nearly 10 million Americans 
discovered they were victims of some form of identity theft in 2002. 
See The Federal Trade Commission. Identity Theft Survey Report 
(September 2003), available at https://www.ftc.gov/os/2003/09/synovatereport.pdf.
    \8\ Institutions should also conduct background checks of 
employees to ensure that the institution does not violate 12 U.S.C. 
1829, which prohibits an institution from hiring an individual 
convicted of certain criminal offenses or who is subject to a 
prohibition order under 12 U.S.C. 1818(e)(6).
    \9\ Under the Guidelines, an institution's customer information 
systems consist of all of the methods used to access, collect, 
store, use, transmit, protect, or dispose of customer information, 
including the systems maintained by its service providers. See 
Security Guidelines, I.C.2.d.
    \10\ See FFIEC Information Technology Examination Handbook, 
Information Security Booklet, Dec. 2002 available at https://ithandbook.ffiec.gov/it-booklets/information-security.aspx. Federal 
Reserve SR 97-32, Sound Practice Guidance for Information Security 
for Networks, Dec. 4, 1997; OCC Bulletin 2000-14, ``Infrastructure 
Threats--Intrusion Risks'' (May 15, 2000), for additional guidance 
on preventing, detecting, and responding to intrusions into 
financial institutions computer systems.
    \11\ See Federal Reserve SR Ltr. 13-19, Guidance on Managing 
Outsourcing Risk, Dec. 5, 2013; OCC Bulletin 2013-29, ``Third-Party 
Relationships--Risk Management Guidance,'' Oct. 30, 2013; and FDIC 
FIL 44-08, Guidance for Managing Third Party Risk, June 6, 2008 and 
FIL 68-99, Risk Assessment Tools and Practices for Information 
System Security, July 7, 1999.
    \12\ An institution's obligations to file a SAR is set out in 
the Agencies' SAR regulations and Agency guidance. See, for example, 
12 CFR 21.11 (national banks, Federal branches and agencies); 12 CFR 
163.180 (Federal savings associations); 12 CFR 208.62 (State member 
banks); 12 CFR 211.5(k) (Edge and agreement corporations); 12 CFR 
211.24(f) (uninsured State branches and agencies of foreign banks); 
12 CFR 225.4(f) (bank holding companies and their nonbank 
subsidiaries); and 12 CFR part 353 (FDIC-supervised institutions). 
National banks must file SARs in connection with computer intrusions 
and

[[Page 65913]]

other computer crimes. See OCC Bulletin 2000-14, ``Infrastructure 
Threats--Intrusion Risks'' (May 15, 2000); Advisory Letter 97-9, 
``Reporting Computer Related Crimes'' (November 19, 1997) (general 
guidance still applicable though instructions for new SAR form 
published in 65 FR 1229, 1230 (January 7, 2000)). See also Federal 
Reserve SR 01-11, Identity Theft and Pretext Calling, Apr. 26, 2001.
    \13\ See FFIEC Information Technology Examination Handbook, 
Information Security Booklet, Dec. 2002, pp. 68-74.
    \14\ The institution should, therefore, ensure that it has 
reasonable policies and procedures in place, including trained 
personnel, to respond appropriately to customer inquiries and 
requests for assistance.
    \15\ Currently, the FTC Web site for the ID Theft brochure and 
the FTC Hotline phone number are https://www.consumer.gov/idtheft and 
1-877-IDTHEFT. The institution may also refer customers to any 
materials developed pursuant to section 151(b) of the FACT Act 
(educational materials developed by the FTC to teach the public how 
to prevent identity theft).

PART 391--FORMER OFFICE OF THRIFT SUPERVISION REGULATIONS

0
4. The authority citation for part 391 is revised to read as follows:

    Authority: 12 U.S.C. 1819 (Tenth).
    Subpart A also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 
1831p-1; 1881-1884; 15 U.S.C. 1681w; 15 U.S.C. 6801; 6805.
    Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 
1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w.
    Subpart D also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 
42 U.S.C. 4012a; 4104a; 4104b; 4106; 4128.
    Subpart E also issued under 12 U.S.C. 1467a; 1468; 1817; 1831i.

Subpart B--[Removed and Reserved]

0
5. Remove and reserve subpart B consisting of Sec. Sec.  391.10 through 
391.14, and Appendices A and B.

    Dated at Washington, DC, this 22nd day of October 2015.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
 [FR Doc. 2015-27293 Filed 10-27-15; 8:45 am]
 BILLING CODE 6714-01-P