Branch Application Procedures, 72551-72555 [2020-23529]
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Rules and Regulations
Federal Register
Vol. 85, No. 220
Friday, November 13, 2020
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Parts 303 and 347
RIN 3064–AF54
Branch Application Procedures
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
AGENCY:
The FDIC is adopting a final
rule to amend its application
requirements for the establishment and
relocation of branches and offices so
that such applications no longer require
statements regarding the compliance of
such proposals with the National
Historic Preservation Act of 1966
(NHPA) and the National Environmental
Policy Act of 1969 (NEPA). The final
rule amends the FDIC’s regulations to
remove NHPA and NEPA requirements
embedded in its branch application
procedures, and rescinds FDIC
statements of policy regarding the
NHPA and the NEPA, consistent with
branch application procedures for
national banks and insured state
member banks supervised by the Office
of the Comptroller of the Currency
(OCC) and the Board of Governors of the
Federal Reserve System.
DATES: The final rule is effective on
December 14, 2020.
FOR FURTHER INFORMATION CONTACT:
Navid Choudhury, Counsel, Policy Unit,
Legal Division, (202) 898–6526,
nchoudhury@fdic.gov; Patricia A.
Colohan, Associate Director, Risk
Management Examination Branch; (202)
898–7283, pcolohan@fdic.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Background
The NHPA and the NEPA were
enacted by Congress as discrete but
related laws to limit the impact of
Federal Government initiatives on
historic properties and the environment,
respectively. These statutes apply to a
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limited universe of Federal Government
actions. The NHPA and the NEPA seek
to incorporate historic preservation and
environmental considerations into the
Federal Government’s work and also to
enhance and support state and local
laws that address historic preservation
and environmental policy. Historically,
the FDIC has interpreted the NHPA and
NEPA as having limited application to
deposit insurance and branch
applications.
Under Section 106 of the NHPA,
Federal agencies are required to take
into account the effects of their
‘‘undertakings’’ on historic properties.1
Likewise, section 102(2)(C) of the NEPA
requires that Federal agencies include,
in every recommendation or report on
major Federal actions significantly
affecting the quality of the human
environment, a detailed statement that
addresses the environmental impact of
the proposal.2 The FDIC has historically
interpreted the scope of the NHPA and
the NEPA as limited to the potential
impact on historic properties and the
environment with respect to a limited
universe of applications, specifically,
for deposit insurance for de novo
institutions and applications by state
non-member banks to establish a
domestic branch and to relocate a
domestic branch or main office (Covered
Applications).
The FDIC has implemented the NHPA
and the NEPA with respect to Covered
Applications by regulations and via
three statements of policy. The FDIC’s
regulations generally require applicants
to provide statements regarding their
compliance with NEPA and NHPA in
connection with main office relocation
applications by state nonmember
banks,3 domestic and foreign branch
establishment and relocation
applications by state nonmember
banks,4 and insured branch relocation
applications by foreign banks.5 The
three statements of policy are: the
1 54
U.S.C. 306108.
U.S.C. 4332(C).
3 12 CFR 303.40 and 303.42(b)(4) and (5).
4 12 CFR 303.40, 303.42(b)(4) and (5), and
303.182. See also section 402 (54 U.S.C. 307101) of
the NHPA that requires Federal undertakings
outside of the United States take into account
adverse effects on sites inscribed on the World
Heritage List or on the foreign nation’s equivalent
of the National Register for the purpose of avoiding
or mitigating adverse effects. Congress added this
provision to the NHPA in 1980 to govern Federal
undertakings outside the United States.
5 12 CFR 303.184.
2 42
PO 00000
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Statement of Policy Regarding the
National Historic Preservation Act of
1966; 6 the Statement of Policy
Regarding the National Environmental
Policy Act of 1969; 7 and the Statement
of Policy on Applications for Deposit
Insurance.8
Review of Regulations and Guidance
As part of the FDIC’s comprehensive
review of its statements of policy and
related matters in an effort to streamline
FDIC regulations and other supervisory
materials issued to the public, FDIC staff
reviewed the requirements for branch
applications. Additionally, the FDIC
committed to review all published
guidance in order to identify any
guidance that should be revised or
rescinded because such issuance is outof-date or otherwise no longer relevant
as part of its 2017 decennial report to
Congress required by the Economic
Growth and Regulatory Paperwork
Reduction Act (EGRPRA).9
Courts generally determine whether
the NHPA and the NEPA apply to a
particular Federal agency action by
applying similar principles to both
statutes, because the NHPA and NEPA
are parallel but discrete statutes. Section
106 of the NHPA applies only to a
Federal ‘‘undertaking,’’ which, for the
type of work the FDIC does, means an
activity ‘‘requiring a federal permit,
license or approval.’’ 10 Section
102(2)(C) of the NEPA applies only to a
‘‘major Federal action,’’ which includes
actions with environmental effects that
may be major and which are potentially
subject to Federal control and
responsibility. As noted in the preamble
6 71
FR 42399 (July 26, 2006).
FR 63475 (Nov. 13, 1998).
8 63 FR 44756 (Nov. 20, 1998); amended 67 FR
79278 (Dec. 27, 2002). The FDIC expects to update
this Statement of Policy at a later date, however,
applications for deposit insurance would also be
impacted similarly based on this final rule in that
statements regarding the NHPA and the NEPA
would not be required for deposit insurance
applications.
9 12 U.S.C. 3311. In accordance with the
EGRPRA, the FDIC regularly reviews its regulations
to identify outdated or otherwise unnecessary
regulatory requirements.
10 Undertaking is a project, activity, or program
funded in whole or in part under the direct or
indirect jurisdiction of a Federal agency, including:
(1) Those carried out by or on behalf of the Federal
agency; (2) those carried out with Federal financial
assistance; (3) those requiring a Federal permit,
license or approval; and (4) those subject to state
or local regulation administered pursuant to a
delegation or approval by a Federal agency. 54
U.S.C. 300320.
7 63
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to the July notice of proposed
rulemaking, in reviewing the case law
on what constitutes an ‘‘undertaking’’
under NHPA or a ‘‘major Federal
action’’ under the NEPA, the FDIC does
not believe that approval of a Covered
Application constitutes a Federal
undertaking under section 106 or
section 402 of the NHPA or a major
Federal action under section 102(2)(C)
of the NEPA as discussed below.
Section 18(d) of the Federal Deposit
Insurance Act requires the FDIC’s
consent in connection with: An insured
state nonmember bank’s establishment
of a domestic or foreign branch, an
insured state nonmember bank’s
relocation of its main office or a
domestic branch, and a foreign bank’s
relocation of an insured branch.11
Section 3(o) defines a domestic branch
as any branch bank, branch office,
branch agency, additional office, or any
branch place of business located in any
State of the United States or in any
Territory of the United States, Puerto
Rico, Guam, American Samoa, the Trust
Territory of the Pacific Islands, or the
Virgin Islands at which deposits are
received or checks paid or money lent.12
These functions (receiving deposits,
paying checks, and lending money)
characterize a ‘‘domestic branch’’ and
are generally referred to as the ‘‘core
banking functions.’’ Section 3(o)
likewise defines a ‘‘foreign branch’’ as
any office or place of business located
outside the United States at which
‘‘banking operations are conducted,’’ 13
and an insured branch of a foreign bank
is defined as a branch of a foreign bank
at which insured deposits are
received.14 Section 18(d) therefore
generally prohibits a state nonmember
bank from engaging in specified
activities at a location other than an
FDIC-approved main office, domestic
branch, or foreign branch, and prohibits
a foreign bank from receiving insured
deposits at a location other than an
approved insured branch. Section 18(d)
does not confer upon the FDIC the
statutory authority to oversee the
construction or acquisition of bank
premises, but it governs the
circumstances under which the FDIC
may authorize a state nonmember bank
or an insured branch of a foreign bank
to engage in specified banking functions
from bank premises. The FDIC’s
approval of an application under section
18(d), as well as its consideration of
NHPA and NEPA in connection with
deposit insurance applications, only
11 12
12 12
U.S.C. 1828(d)(1) & (2).
U.S.C. 1813(o).
13 Id.
14 12
authorizes certain banking activities to
occur at a particular geographic
location. Therefore, the FDIC’s approval
of a Covered Application does not
authorize any building construction or
demolition—or any other activity that
could affect historic properties or the
environment.
Currently, the FDIC is the only
Federal banking agency that requires
consideration of the NHPA and NEPA in
connection with branch applications.
The regulatory requirements under the
Federal Reserve Board and the OCC do
not incorporate review of the NHPA and
the NEPA with respect to branch
applications.15 After carefully reviewing
the FDIC’s procedures for Covered
Applications, the FDIC has concluded
that consideration of the NHPA and
NEPA is not required by law and is an
unnecessary regulatory requirement for
insured State nonmember banks.
Proposed Rule; Rescission of Policy
Statements
On July 10, 2020, the FDIC published
a notice of proposed rulemaking (NPR)
to amend its application requirements
for the establishment and relocation of
branches and offices and deposit
insurance for de novo institutions so
that such applications would no longer
require statements regarding the
compliance of such proposal with the
NHPA and NEPA.16 The NPR proposed
amending the FDIC regulations to
remove NHPA and NEPA requirements
embedded in the branch application
procedures, and to rescind the
statements of policy regarding the
NHPA and NEPA, because
consideration of these statutes during
the processing of these applications is
an unnecessary regulatory requirement
and would make the FDIC’s procedures
consistent with the branch application
procedures for national banks and
insured State member banks supervised
by the OCC and Federal Reserve System.
Comments
The FDIC issued the NPR on July 10,
2020, with a 30-day comment period.
The FDIC received one comment on the
NPR. The commenter supported the
proposal by noting that rescinding the
filing requirement would make the
application process more efficient, align
with timing requirements, and remove a
time-consuming and onerous
requirement. Consequently, the final
rule is adopted without change.
15 84
U.S.C. 1813(s); see also 12 U.S.C. 3101(b)(6).
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16 85
PO 00000
FR 51711 (Sept. 30, 2019).
FR 41442 (July 10, 2020).
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Explanation of the Final Rule
The final rule amends parts 303 and
347 to remove references to compliance
statements regarding the NHPA and
NEPA, as well as to rescind the
Statement of Policy Regarding the
National Historic Preservation Act of
1966 and the Statement of Policy
Regarding the National Environmental
Policy Act of 1969. The amendments to
12 CFR parts 303 and 347, together with
the rescission of the two Statements of
Policy regarding the NHPA and the
NEPA, eliminate requirements that are
unnecessary for insured state
nonmember banks and insured branches
of foreign banks, as well as improve the
efficiency of the Covered Application
review process. Additionally, these
actions place the FDIC in alignment
with the other Federal banking agencies
and remove a competitive disadvantage
insured state nonmember banks and
insured branches of foreign banks now
face relative to insured state member
banks and national banks. Furthermore,
insured state nonmember banks and
insured branches of foreign banks
remain subject to any applicable state
and local historic preservation and
environmental laws.
Expected Effects
According to the most recent data, the
FDIC supervises 3,309 depository
institutions. The final rule specifically
affects 2,980 state nonmember
depository institutions supervised by
the FDIC and 9 insured branches of
foreign banks.17 FDIC supervised State
savings banks and associations are not
subject to the NHPA/NEPA
requirements because 12 CFR part 303
only applies to insured state
nonmember banks. As previously
discussed, the final rule would (1)
remove ‘‘NEPA’’ and ‘‘NHPA’’ as
defined terms in 12 CFR 303.2(w) and
(x); (2) amend the branch application
filing procedures for state nonmember
banks set forth in 12 CFR 303.42 by
deleting the requirements related to the
NHPA and the NEPA set forth in
paragraphs (b)(4) and (5); (3) amend the
foreign branch application notice
procedures for state nonmember banks
set forth in 12 CFR 303.182 by removing
the requirements to provide a statement
in accordance with NHPA set forth in
paragraphs (a) and (b)(2)(i), and by
removing NHPA compliance as a basis
for withholding general consent to
establish or relocate a foreign branch
under 12 CFR 347.119(b); (4) amend the
filing procedures for moving an insured
branch of a foreign bank set forth in 12
17 FDIC
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CFR 303.184 by deleting the
requirements related to the NHPA and
the NEPA set forth in paragraphs
(a)(2)(iii) and (iv) and (d)(1)(iv); and (5)
rescind the Statement of Policy
Regarding the National Historic
Preservation Act of 1966; and (6)
rescind the Statement of Policy on
National Environmental Policy Act
Procedures Relating to Filings Made
with the FDIC. In so doing, the final rule
would amend the required contents for
applications for establishment of a
branch and applications for relocation
of a branch or main office. Between
2015 and 2018, the FDIC received 549
applications from 400 unique insured
State nonmember banks per year to
establish a branch, 177 applications
from 152 unique insured State
nonmember banks per year to relocate a
branch or main office, and 1 application
from insured branches of foreign banks
per year to relocate a branch or main
office, on average.18 For purposes of this
analysis, the FDIC is estimating that the
number of unique respondents affected
by the final rule would be consistent
with this recent experience. Therefore,
the FDIC estimates that the final rule
would affect 400 insured State
nonmember banks applying to establish
a domestic branch, 152 insured State
nonmember institutions applying to
relocate a branch or main office, and 1
insured branch of a foreign bank
applying to relocate a branch or main
office, per year, on average.
The final rule would likely reduce the
costs associated with filing branch
applications for affected entities by
making the process more efficient.
Although the final rule is expected to
reduce costs associated with Covered
Applications for applicants dealing with
historic properties or environmental
issues, the FDIC does not believe the
final rule will reduce the average hours
per response for Covered Applications.
Additionally, as previously discussed,
the FDIC is currently the only Federal
banking agency that requires
consideration of the NHPA and NEPA in
connection with branch applications.
Therefore, the final rule is expected to
remove a competitive disadvantage that
insured state nonmember banks and
insured branches of foreign banks now
face relative to state member banks and
national banks.
The FDIC believes that the associated
reductions in costs and application
information content as a result of the
final rule are unlikely to generate
significant effects on the U.S. economy.
The estimated cost reductions are likely
to be small because the number of
18 FDIC
Application Data.
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entities affected is also estimated to be
small. Further, as previously discussed,
while covered applications of insured
state nonmember banks and insured
branches of foreign banks would no
longer be subject to NHPA or NEPA
review under federal law, they would
remain subject to any applicable state
and local historic preservation and
environmental laws. Accordingly,
outcomes for individual properties that
are the subject of covered applications
may differ in some states from what
they would have been in the absence of
the rule.
As previously discussed, after
reviewing the case law on what
constitutes an ‘‘undertaking’’ under
NHPA or a ‘‘major Federal action’’
under the NEPA, the FDIC does not
believe that approval of a Covered
Application constitutes a federal
undertaking under section 106 of the
NHPA or a major federal action under
section 102(2)(C) of the NEPA.
Therefore, concurrent with the
amendment of 12 CFR parts 303 and
347, the FDIC is planning on rescinding
the Statements of Policy entitled
Statement of Policy Regarding the
National Historic Preservation Act of
1966, and Statement of Policy on
National Environmental Policy Act
Procedures Relating to Filings Made
with the FDIC. The FDIC believes that
the concurrent action to rescind these
Statements of Policy will help simplify
the application process by removing
unnecessary information for applicants,
thereby making the process more
efficient.
Alternatives Considered
The FDIC considered alternatives to
the final rule but believes that the
amendments represent the most
appropriate option for affected entities.
As discussed previously, after carefully
reviewing the FDIC’s procedures for
Covered Applications, the FDIC has
concluded that consideration of the
NHPA and the NEPA is not required by
law and is an unnecessary regulatory
requirement of the branch application
review process. The FDIC considered
the alternative of retaining the current
regulations, but did not choose to do so.
As discussed elsewhere in this
preamble, the FDIC believes the
regulations are unnecessary, require
entities to incur unnecessary costs
associated with submitting branch
applications, and perpetuate a
competitive disadvantage for insured
state nonmember banks and insured
branches of foreign banks relative to
insured state member banks and
national banks. Additionally, the FDIC
considered retaining the Statements of
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Policy entitled, Statement of Policy
Regarding the National Historic
Preservation Act of 1966 and Statement
of Policy on National Environmental
Policy Act Procedures Relating to Filings
Made with the FDIC, but did not choose
to do so. Upon reevaluation of the
applicability of what constitutes an
‘‘undertaking’’ under NHPA or a ‘‘major
Federal action’’ under the NEPA, and
deletion of requirements related to the
NHPA and the NEPA in 12 CFR parts
303 and 347, these Statements of Policy
would be unnecessary. Therefore, the
FDIC is amending 12 CFR parts 303 and
347 by deleting the requirements related
to the NHPA and the NEPA and
concurrently rescinding the related
Statements of Policy.
Regulatory Analysis
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
requires that, in connection with a
notice of final rulemaking, an agency
prepare and make available for public
comment a final regulatory flexibility
analysis that describes the impact of the
final rule on small entities.19 However,
a final 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, including a statement
providing a factual basis for the
certification, in the Federal Register,
together with the rule. The Small
Business Administration (SBA) has
defined ‘‘small entities’’ to include
banking organizations with total assets
of less than or equal to $600 million.20
Generally, the FDIC considers a
significant effect to be a quantified effect
in excess of 5 percent of total annual
salaries and benefits, or 2.5 percent of
total noninterest expenses. The FDIC
believes that effects in excess of these
thresholds typically represent
significant effects for FDIC-supervised
institutions. For the reasons provided
below, the FDIC certifies that the final
rule will not have a significant
economic impact on a substantial
19 5
U.S.C. 601, et seq.
SBA defines a small banking organization
as having $600 million or less in assets, where ‘‘a
financial institution’s assets are determined by
averaging the assets reported on its four quarterly
financial statements for the preceding year.’’ See 13
CFR 121.201 (as amended by 84 FR 34261, effective
August 19, 2019). ‘‘SBA counts the receipts,
employees, or other measure of size of the concern
whose size is at issue and all of its domestic and
foreign affiliates.’’ See 13 CFR 121.103. Following
these regulations, the FDIC uses a covered entity’s
affiliated and acquired assets, averaged over the
preceding four quarters, to determine whether the
FDIC-supervised institution is ‘‘small’’ for the
purposes of RFA.
20 The
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number of small banking organizations.
Accordingly, a regulatory flexibility
analysis is not required.
According to the most recent data, the
FDIC supervises 3,309 insured
depository institutions, of which 2,548
are considered small banking
organizations for the purposes of RFA.21
As previously discussed, the final rule
would (1) remove ‘‘NEPA’’ and ‘‘NHPA’’
as defined terms in 12 CFR 303.2(w) and
(x); (2) amend the branch application
filing procedures for state nonmember
banks set forth in 12 CFR 303.42 by
deleting the requirements related to the
NHPA and the NEPA set forth in
paragraphs (b)(4) and (5); (3) amend the
foreign branch application notice
procedures for state nonmember banks
set forth in 12 CFR 303.182 by removing
the requirements to provide a statement
in accordance with NHPA set forth in
paragraphs (a) and (b)(2)(i), and by
removing NHPA compliance as a basis
for withholding general consent to
establish or relocate a foreign branch
under 12 CFR 347.119(b); (4) amend the
filing procedures for moving an insured
branch of a foreign bank set forth in 12
CFR 303.184 by deleting the
requirements related to the NHPA and
the NEPA set forth in paragraphs
(a)(2)(iii) and (iv) and (d)(1)(iv); (5)
rescind the Statement of Policy
Regarding the National Historic
Preservation Act of 1966; and (6)
rescind the Statement of Policy on
National Environmental Policy Act
Procedures Relating to Filings Made
with the FDIC. In so doing, the final rule
amends the required contents for
applications for establishment of a
branch and applications for relocation
of a branch or main office. The final rule
could affect the 2,352 small state
nonmember depository institutions
supervised by the FDIC. No insured
branches of foreign banks are
considered small banking organizations
for the purposes of RFA.22
Between 2015 and 2018, the FDIC
received applications from 195 unique
small insured State nonmember banks
per year to establish a branch and
applications from 68 unique small
insured State nonmember banks per
year to relocate a branch or main office,
on average.23 For purposes of this
analysis, the FDIC is estimating that the
number of unique respondents affected
by the final rule will be consistent with
this recent experience. Therefore, the
FDIC estimates that the final rule will
21 FDIC Call Report data for the period ending
March 31, 2020.
22 FFIEC Reports of Condition and Income (Call
Report), for the period ending March 31, 2020.
23 FDIC Application Data.
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affect approximately 195 small insured
State nonmember banks applying to
establish a domestic branch and
approximately 68 small insured State
nonmember institutions applying to
relocate a branch or main office, per
year. In total, these 263 affected entities
represent no more than an estimated
10.3 percent of small FDIC-supervised
institutions.
The final rule is likely to reduce the
costs associated with filing Covered
Applications for small entities, making
the process more efficient. Although the
final rule is expected to reduce costs
associated with Covered Applications
for small applicants dealing with
historic properties or environmental
issues, the FDIC does not believe the
final rule will reduce the average hours
per response for Covered Applications.
Additionally, as previously discussed,
the FDIC is currently the only Federal
banking agency that requires
consideration of the NHPA and NEPA in
connection with branch applications.
Therefore, the final rule is expected to
remove a competitive disadvantage that
small insured state nonmember banks
and insured branches of foreign banks
currently face relative to state member
banks and national banks.
Based on the information above, and
pursuant to section 605(b) of the RFA,
the FDIC certifies that the final rule will
not have a significant economic impact
on a substantial number of small
entities.
B. Paperwork Reduction Act
In accordance with the requirements
of the Paperwork Reduction Act of 1995
(PRA),24 the FDIC may not conduct or
sponsor, and a respondent is not
required to respond to, an information
collection unless it displays a currentlyvalid Office of Management and Budget
(OMB) control number. The final rule
affects the FDIC’s current information
collection titled ‘‘Application for a Bank
to Establish a Branch or Move its Main
Office’’ (OMB Control No. 3064–0070).
In particular, the final rule removes the
requirements related to NHPA and
NEPA therefore reducing the PRA
burden. However, the amount of hourly
burden previously indicated in
connection with the PRA information
collection does not distinguish between
the time to comply with the NHPA and
NEPA and the other non-NHPA/NEPA
notification requirements. For this
reason, the FDIC is assuming that any
allotted time dedicated to NHPA and
NEPA is minimal and will result in a
zero net change in the current estimated
average hourly burden for the
24 44
PO 00000
U.S.C. 3501–3521.
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information collection. Therefore, no
submission will be made to OMB for
review.
C. Riegle Community Development and
Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the
Riegle Community Development and
Regulatory Improvement Act
(RCDRIA),25 in determining the effective
date and administrative compliance
requirements for new regulations that
impose additional reporting, disclosure,
or other requirements on insured
depository institutions (IDIs), each
Federal banking agency must consider,
consistent with principles of safety and
soundness and the public interest, any
administrative burdens that such
regulations would place on depository
institutions, including small depository
institutions, and customers of
depository institutions, as well as the
benefits of such regulations. In addition,
section 302(b) of RCDRIA requires new
regulations and amendments to
regulations that impose additional
reporting, disclosures, or other new
requirements on IDIs generally to take
effect on the first day of a calendar
quarter that begins on or after the date
on which the regulations are published
in final form.26 Because the final rule
does not impose any reporting,
disclosure, or other new requirements
on insured depository institutions, the
requirements of RCDRIA do not apply.
D. Congressional Review Act
For purposes of Congressional Review
Act (CRA), the OMB makes a
determination as to whether a final rule
constitutes a ‘‘major’’ rule.27 If a rule is
deemed a major rule by the OMB, the
CRA generally provides that the rule
may not take effect until at least 60 days
following its publication.28
The CRA defines a ‘‘major rule’’ as
any rule that the Administrator of the
Office of Information and Regulatory
Affairs of the OMB finds has resulted in
or is likely to result in—(A) an annual
effect on the economy of $100,000,000
or more; (B) a major increase in costs or
prices for consumers, individual
industries, Federal, State, or local
government agencies or geographic
regions, or (C) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreign25 12
U.S.C. 4802(a).
at 4802(b).
27 5 U.S.C. 801 et seq.
28 5 U.S.C. 801(a)(3).
26 Id.
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based enterprises in domestic and
export markets.29
The OMB has determined that the
final rule is not a major rule for
purposes of the CRA and the FDIC will
submit the final rule and other
appropriate reports to Congress and the
Government Accountability Office for
review.
§ 303.42
E. Plain Language
§ 303.182 Establishing, moving or closing
a foreign branch of an insured state
nonmember bank.
Section 722 of the Gramm-LeachBliley Act 30 requires each Federal
banking agency to use plain language in
all of its proposed and final rules
published after January 1, 2000. The
FDIC has sought to present the final rule
in a simple and straightforward manner
and did not receive any comments on
the use of plain language in connection
with the proposed rule.
List of Subjects
12 CFR Part 303
Administrative practice and
procedure, Bank deposit insurance,
Banks, banking, Reporting and
recordkeeping requirements, Savings
associations.
12 CFR Part 347
Authority delegations (Government
agencies), Bank deposit insurance,
Banks, banking, Credit, Foreign banking,
Investments, Reporting and
recordkeeping requirements, U.S.
Investments abroad.
FEDERAL DEPOSIT INSURANCE
CORPORATION
[Amended]
3. In § 303.42, remove paragraphs
(b)(4) and (5) and redesignate
paragraphs (b)(6) through (8) as
paragraphs (b)(4) through (6),
respectively.
■ 4. Amend § 303.182 by revising
paragraphs (a) and (b)(2)(i) to read as
follows:
■
(a) Notice procedures for general
consent. Notice in the form of a letter
from an eligible depository institution
establishing or relocating a foreign
branch pursuant to § 347.117(a) of this
chapter must be provided to the
appropriate FDIC office no later than 30
days after taking such action. The notice
must include the location of the foreign
branch, including a street address. The
FDIC will provide written
acknowledgment of receipt of the
notice.
(b) * * *
(2) * * *
(i) The exact location of the proposed
foreign branch, including the street
address.
*
*
*
*
*
■ 5. Amend § 303.184 by:
■ a. Removing paragraphs (a)(2)(iii) and
(iv);
■ b. Redesignating paragraphs (a)(2)(v)
and (vi) as paragraphs (a)(iii) and (iv),
respectively; and
■ c. Revising paragraph (d)(1)(iv).
The revision reads as follows:
12 CFR Chapter III
§ 303.184 Moving an insured branch of a
foreign bank.
Authority and Issuance
*
*
*
*
*
(d) * * *
(1) * * *
(iv) Compliance with the CRA and
any applicable related regulations,
including 12 CFR part 345, has been
considered and favorably resolved;
*
*
*
*
*
For the reasons set forth in the
preamble, the FDIC amends 12 CFR
parts 303 and 347 as follows:
PART 303—FILING PROCEDURES
1. The authority citation for part 303
continues to read as follows:
■
Authority: 12 U.S.C. 378, 478, 1463,
1467a, 1813, 1815, 1817, 1818, 1819 (Seventh
and Tenth), 1820, 1823, 1828, 1831i, 1831e,
1831o, 1831p–1, 1831w, 1831z, 1835a,
1843(l), 3104, 3105, 3108, 3207, 5412; 15
U.S.C. 1601–1607.
§ 303.2
[Amended]
2. In § 303.2, remove paragraphs (w)
and (x) and redesignate paragraphs (y)
through (gg) as paragraphs (w) through
(ee), respectively.
jbell on DSKJLSW7X2PROD with RULES
■
29 5
U.S.C. 804(2).
Law 106–102, section 722, 113 Stat.
1338, 1471 (1999).
30 Public
VerDate Sep<11>2014
16:03 Nov 12, 2020
Jkt 253001
PART 347—INTERNATIONAL
BANKING
6. The authority citation for part 347
continues to read as follows:
■
Authority: 12 U.S.C. 1813, 1815, 1817,
1819, 1820, 1828, 3103, 3104, 3105, 3108,
3109; Pub. L. 111–203, section 939A, 124
Stat. 1376, 1887 (July 21, 2010) (codified 15
U.S.C. 78o–7 note).
§ 347.119
[Amended]
7. Amend § 347.119 by removing
paragraph (b) and redesignating
paragraphs (c) and (d) as paragraphs (b)
and (c), respectively.
■
Federal Deposit Insurance Corporation.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
72555
By order of the Board of Directors.
Dated at Washington, DC, on October 20,
2020.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2020–23529 Filed 11–12–20; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2020–0779; Product
Identifier 2020–NM–092–AD; Amendment
39–21311; AD 2020–22–15]
RIN 2120–AA64
Airworthiness Directives; the Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
The FAA is adopting a new
airworthiness directive (AD) for all The
Boeing Company Model DC–10–10 and
DC–10–10F airplanes, Model DC–10–15
airplanes, Model DC–10–30 and DC–10–
30F (KC–10A and KDC–10) airplanes,
Model DC–10–40 and DC–10–40F
airplanes, Model MD–10–10F and MD–
10–30F airplanes, and Model MD–11
and MD–11F airplanes. This AD was
prompted by reports of cracked floor
beams and floor beam supports in the
area of the overwing exit doors located
at certain stations (STA). This AD
requires an inspection of the overwing
floor beams for any repair, repetitive
inspections of the overwing floor beams
and floor beam supports at certain STA
on the left and right sides for any crack,
and applicable on-condition actions.
The FAA is issuing this AD to address
the unsafe condition on these products.
DATES: This AD is effective December
18, 2020.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in this AD
as of December 18, 2020.
ADDRESSES: For service information
identified in this final rule, contact
Boeing Commercial Airplanes,
Attention: Contractual & Data Services
(C&DS), 2600 Westminster Blvd., MC
110–SK57, Seal Beach, CA 90740–5600;
telephone 562–797–1717; internet
https://www.myboeingfleet.com. You
may view this service information at the
FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
SUMMARY:
E:\FR\FM\13NOR1.SGM
13NOR1
]]>Agencies
[Federal Register Volume 85, Number 220 (Friday, November 13, 2020)]
[Rules and Regulations]
[Pages 72551-72555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23529]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 85, No. 220 / Friday, November 13, 2020 /
Rules and Regulations
[[Page 72551]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Parts 303 and 347
RIN 3064-AF54
Branch Application Procedures
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The FDIC is adopting a final rule to amend its application
requirements for the establishment and relocation of branches and
offices so that such applications no longer require statements
regarding the compliance of such proposals with the National Historic
Preservation Act of 1966 (NHPA) and the National Environmental Policy
Act of 1969 (NEPA). The final rule amends the FDIC's regulations to
remove NHPA and NEPA requirements embedded in its branch application
procedures, and rescinds FDIC statements of policy regarding the NHPA
and the NEPA, consistent with branch application procedures for
national banks and insured state member banks supervised by the Office
of the Comptroller of the Currency (OCC) and the Board of Governors of
the Federal Reserve System.
DATES: The final rule is effective on December 14, 2020.
FOR FURTHER INFORMATION CONTACT: Navid Choudhury, Counsel, Policy Unit,
Legal Division, (202) 898-6526, [email protected]; Patricia A.
Colohan, Associate Director, Risk Management Examination Branch; (202)
898-7283, [email protected].
SUPPLEMENTARY INFORMATION:
Background
The NHPA and the NEPA were enacted by Congress as discrete but
related laws to limit the impact of Federal Government initiatives on
historic properties and the environment, respectively. These statutes
apply to a limited universe of Federal Government actions. The NHPA and
the NEPA seek to incorporate historic preservation and environmental
considerations into the Federal Government's work and also to enhance
and support state and local laws that address historic preservation and
environmental policy. Historically, the FDIC has interpreted the NHPA
and NEPA as having limited application to deposit insurance and branch
applications.
Under Section 106 of the NHPA, Federal agencies are required to
take into account the effects of their ``undertakings'' on historic
properties.\1\ Likewise, section 102(2)(C) of the NEPA requires that
Federal agencies include, in every recommendation or report on major
Federal actions significantly affecting the quality of the human
environment, a detailed statement that addresses the environmental
impact of the proposal.\2\ The FDIC has historically interpreted the
scope of the NHPA and the NEPA as limited to the potential impact on
historic properties and the environment with respect to a limited
universe of applications, specifically, for deposit insurance for de
novo institutions and applications by state non-member banks to
establish a domestic branch and to relocate a domestic branch or main
office (Covered Applications).
---------------------------------------------------------------------------
\1\ 54 U.S.C. 306108.
\2\ 42 U.S.C. 4332(C).
---------------------------------------------------------------------------
The FDIC has implemented the NHPA and the NEPA with respect to
Covered Applications by regulations and via three statements of policy.
The FDIC's regulations generally require applicants to provide
statements regarding their compliance with NEPA and NHPA in connection
with main office relocation applications by state nonmember banks,\3\
domestic and foreign branch establishment and relocation applications
by state nonmember banks,\4\ and insured branch relocation applications
by foreign banks.\5\ The three statements of policy are: the Statement
of Policy Regarding the National Historic Preservation Act of 1966; \6\
the Statement of Policy Regarding the National Environmental Policy Act
of 1969; \7\ and the Statement of Policy on Applications for Deposit
Insurance.\8\
---------------------------------------------------------------------------
\3\ 12 CFR 303.40 and 303.42(b)(4) and (5).
\4\ 12 CFR 303.40, 303.42(b)(4) and (5), and 303.182. See also
section 402 (54 U.S.C. 307101) of the NHPA that requires Federal
undertakings outside of the United States take into account adverse
effects on sites inscribed on the World Heritage List or on the
foreign nation's equivalent of the National Register for the purpose
of avoiding or mitigating adverse effects. Congress added this
provision to the NHPA in 1980 to govern Federal undertakings outside
the United States.
\5\ 12 CFR 303.184.
\6\ 71 FR 42399 (July 26, 2006).
\7\ 63 FR 63475 (Nov. 13, 1998).
\8\ 63 FR 44756 (Nov. 20, 1998); amended 67 FR 79278 (Dec. 27,
2002). The FDIC expects to update this Statement of Policy at a
later date, however, applications for deposit insurance would also
be impacted similarly based on this final rule in that statements
regarding the NHPA and the NEPA would not be required for deposit
insurance applications.
---------------------------------------------------------------------------
Review of Regulations and Guidance
As part of the FDIC's comprehensive review of its statements of
policy and related matters in an effort to streamline FDIC regulations
and other supervisory materials issued to the public, FDIC staff
reviewed the requirements for branch applications. Additionally, the
FDIC committed to review all published guidance in order to identify
any guidance that should be revised or rescinded because such issuance
is out-of-date or otherwise no longer relevant as part of its 2017
decennial report to Congress required by the Economic Growth and
Regulatory Paperwork Reduction Act (EGRPRA).\9\
---------------------------------------------------------------------------
\9\ 12 U.S.C. 3311. In accordance with the EGRPRA, the FDIC
regularly reviews its regulations to identify outdated or otherwise
unnecessary regulatory requirements.
---------------------------------------------------------------------------
Courts generally determine whether the NHPA and the NEPA apply to a
particular Federal agency action by applying similar principles to both
statutes, because the NHPA and NEPA are parallel but discrete statutes.
Section 106 of the NHPA applies only to a Federal ``undertaking,''
which, for the type of work the FDIC does, means an activity
``requiring a federal permit, license or approval.'' \10\ Section
102(2)(C) of the NEPA applies only to a ``major Federal action,'' which
includes actions with environmental effects that may be major and which
are potentially subject to Federal control and responsibility. As noted
in the preamble
[[Page 72552]]
to the July notice of proposed rulemaking, in reviewing the case law on
what constitutes an ``undertaking'' under NHPA or a ``major Federal
action'' under the NEPA, the FDIC does not believe that approval of a
Covered Application constitutes a Federal undertaking under section 106
or section 402 of the NHPA or a major Federal action under section
102(2)(C) of the NEPA as discussed below.
---------------------------------------------------------------------------
\10\ Undertaking is a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a
Federal agency, including: (1) Those carried out by or on behalf of
the Federal agency; (2) those carried out with Federal financial
assistance; (3) those requiring a Federal permit, license or
approval; and (4) those subject to state or local regulation
administered pursuant to a delegation or approval by a Federal
agency. 54 U.S.C. 300320.
---------------------------------------------------------------------------
Section 18(d) of the Federal Deposit Insurance Act requires the
FDIC's consent in connection with: An insured state nonmember bank's
establishment of a domestic or foreign branch, an insured state
nonmember bank's relocation of its main office or a domestic branch,
and a foreign bank's relocation of an insured branch.\11\ Section 3(o)
defines a domestic branch as any branch bank, branch office, branch
agency, additional office, or any branch place of business located in
any State of the United States or in any Territory of the United
States, Puerto Rico, Guam, American Samoa, the Trust Territory of the
Pacific Islands, or the Virgin Islands at which deposits are received
or checks paid or money lent.\12\ These functions (receiving deposits,
paying checks, and lending money) characterize a ``domestic branch''
and are generally referred to as the ``core banking functions.''
Section 3(o) likewise defines a ``foreign branch'' as any office or
place of business located outside the United States at which ``banking
operations are conducted,'' \13\ and an insured branch of a foreign
bank is defined as a branch of a foreign bank at which insured deposits
are received.\14\ Section 18(d) therefore generally prohibits a state
nonmember bank from engaging in specified activities at a location
other than an FDIC-approved main office, domestic branch, or foreign
branch, and prohibits a foreign bank from receiving insured deposits at
a location other than an approved insured branch. Section 18(d) does
not confer upon the FDIC the statutory authority to oversee the
construction or acquisition of bank premises, but it governs the
circumstances under which the FDIC may authorize a state nonmember bank
or an insured branch of a foreign bank to engage in specified banking
functions from bank premises. The FDIC's approval of an application
under section 18(d), as well as its consideration of NHPA and NEPA in
connection with deposit insurance applications, only authorizes certain
banking activities to occur at a particular geographic location.
Therefore, the FDIC's approval of a Covered Application does not
authorize any building construction or demolition--or any other
activity that could affect historic properties or the environment.
---------------------------------------------------------------------------
\11\ 12 U.S.C. 1828(d)(1) & (2).
\12\ 12 U.S.C. 1813(o).
\13\ Id.
\14\ 12 U.S.C. 1813(s); see also 12 U.S.C. 3101(b)(6).
---------------------------------------------------------------------------
Currently, the FDIC is the only Federal banking agency that
requires consideration of the NHPA and NEPA in connection with branch
applications. The regulatory requirements under the Federal Reserve
Board and the OCC do not incorporate review of the NHPA and the NEPA
with respect to branch applications.\15\ After carefully reviewing the
FDIC's procedures for Covered Applications, the FDIC has concluded that
consideration of the NHPA and NEPA is not required by law and is an
unnecessary regulatory requirement for insured State nonmember banks.
---------------------------------------------------------------------------
\15\ 84 FR 51711 (Sept. 30, 2019).
---------------------------------------------------------------------------
Proposed Rule; Rescission of Policy Statements
On July 10, 2020, the FDIC published a notice of proposed
rulemaking (NPR) to amend its application requirements for the
establishment and relocation of branches and offices and deposit
insurance for de novo institutions so that such applications would no
longer require statements regarding the compliance of such proposal
with the NHPA and NEPA.\16\ The NPR proposed amending the FDIC
regulations to remove NHPA and NEPA requirements embedded in the branch
application procedures, and to rescind the statements of policy
regarding the NHPA and NEPA, because consideration of these statutes
during the processing of these applications is an unnecessary
regulatory requirement and would make the FDIC's procedures consistent
with the branch application procedures for national banks and insured
State member banks supervised by the OCC and Federal Reserve System.
---------------------------------------------------------------------------
\16\ 85 FR 41442 (July 10, 2020).
---------------------------------------------------------------------------
Comments
The FDIC issued the NPR on July 10, 2020, with a 30-day comment
period. The FDIC received one comment on the NPR. The commenter
supported the proposal by noting that rescinding the filing requirement
would make the application process more efficient, align with timing
requirements, and remove a time-consuming and onerous requirement.
Consequently, the final rule is adopted without change.
Explanation of the Final Rule
The final rule amends parts 303 and 347 to remove references to
compliance statements regarding the NHPA and NEPA, as well as to
rescind the Statement of Policy Regarding the National Historic
Preservation Act of 1966 and the Statement of Policy Regarding the
National Environmental Policy Act of 1969. The amendments to 12 CFR
parts 303 and 347, together with the rescission of the two Statements
of Policy regarding the NHPA and the NEPA, eliminate requirements that
are unnecessary for insured state nonmember banks and insured branches
of foreign banks, as well as improve the efficiency of the Covered
Application review process. Additionally, these actions place the FDIC
in alignment with the other Federal banking agencies and remove a
competitive disadvantage insured state nonmember banks and insured
branches of foreign banks now face relative to insured state member
banks and national banks. Furthermore, insured state nonmember banks
and insured branches of foreign banks remain subject to any applicable
state and local historic preservation and environmental laws.
Expected Effects
According to the most recent data, the FDIC supervises 3,309
depository institutions. The final rule specifically affects 2,980
state nonmember depository institutions supervised by the FDIC and 9
insured branches of foreign banks.\17\ FDIC supervised State savings
banks and associations are not subject to the NHPA/NEPA requirements
because 12 CFR part 303 only applies to insured state nonmember banks.
As previously discussed, the final rule would (1) remove ``NEPA'' and
``NHPA'' as defined terms in 12 CFR 303.2(w) and (x); (2) amend the
branch application filing procedures for state nonmember banks set
forth in 12 CFR 303.42 by deleting the requirements related to the NHPA
and the NEPA set forth in paragraphs (b)(4) and (5); (3) amend the
foreign branch application notice procedures for state nonmember banks
set forth in 12 CFR 303.182 by removing the requirements to provide a
statement in accordance with NHPA set forth in paragraphs (a) and
(b)(2)(i), and by removing NHPA compliance as a basis for withholding
general consent to establish or relocate a foreign branch under 12 CFR
347.119(b); (4) amend the filing procedures for moving an insured
branch of a foreign bank set forth in 12
[[Page 72553]]
CFR 303.184 by deleting the requirements related to the NHPA and the
NEPA set forth in paragraphs (a)(2)(iii) and (iv) and (d)(1)(iv); and
(5) rescind the Statement of Policy Regarding the National Historic
Preservation Act of 1966; and (6) rescind the Statement of Policy on
National Environmental Policy Act Procedures Relating to Filings Made
with the FDIC. In so doing, the final rule would amend the required
contents for applications for establishment of a branch and
applications for relocation of a branch or main office. Between 2015
and 2018, the FDIC received 549 applications from 400 unique insured
State nonmember banks per year to establish a branch, 177 applications
from 152 unique insured State nonmember banks per year to relocate a
branch or main office, and 1 application from insured branches of
foreign banks per year to relocate a branch or main office, on
average.\18\ For purposes of this analysis, the FDIC is estimating that
the number of unique respondents affected by the final rule would be
consistent with this recent experience. Therefore, the FDIC estimates
that the final rule would affect 400 insured State nonmember banks
applying to establish a domestic branch, 152 insured State nonmember
institutions applying to relocate a branch or main office, and 1
insured branch of a foreign bank applying to relocate a branch or main
office, per year, on average.
---------------------------------------------------------------------------
\17\ FDIC Call Report data, March 31, 2020.
\18\ FDIC Application Data.
---------------------------------------------------------------------------
The final rule would likely reduce the costs associated with filing
branch applications for affected entities by making the process more
efficient. Although the final rule is expected to reduce costs
associated with Covered Applications for applicants dealing with
historic properties or environmental issues, the FDIC does not believe
the final rule will reduce the average hours per response for Covered
Applications. Additionally, as previously discussed, the FDIC is
currently the only Federal banking agency that requires consideration
of the NHPA and NEPA in connection with branch applications. Therefore,
the final rule is expected to remove a competitive disadvantage that
insured state nonmember banks and insured branches of foreign banks now
face relative to state member banks and national banks.
The FDIC believes that the associated reductions in costs and
application information content as a result of the final rule are
unlikely to generate significant effects on the U.S. economy. The
estimated cost reductions are likely to be small because the number of
entities affected is also estimated to be small. Further, as previously
discussed, while covered applications of insured state nonmember banks
and insured branches of foreign banks would no longer be subject to
NHPA or NEPA review under federal law, they would remain subject to any
applicable state and local historic preservation and environmental
laws. Accordingly, outcomes for individual properties that are the
subject of covered applications may differ in some states from what
they would have been in the absence of the rule.
As previously discussed, after reviewing the case law on what
constitutes an ``undertaking'' under NHPA or a ``major Federal action''
under the NEPA, the FDIC does not believe that approval of a Covered
Application constitutes a federal undertaking under section 106 of the
NHPA or a major federal action under section 102(2)(C) of the NEPA.
Therefore, concurrent with the amendment of 12 CFR parts 303 and 347,
the FDIC is planning on rescinding the Statements of Policy entitled
Statement of Policy Regarding the National Historic Preservation Act of
1966, and Statement of Policy on National Environmental Policy Act
Procedures Relating to Filings Made with the FDIC. The FDIC believes
that the concurrent action to rescind these Statements of Policy will
help simplify the application process by removing unnecessary
information for applicants, thereby making the process more efficient.
Alternatives Considered
The FDIC considered alternatives to the final rule but believes
that the amendments represent the most appropriate option for affected
entities. As discussed previously, after carefully reviewing the FDIC's
procedures for Covered Applications, the FDIC has concluded that
consideration of the NHPA and the NEPA is not required by law and is an
unnecessary regulatory requirement of the branch application review
process. The FDIC considered the alternative of retaining the current
regulations, but did not choose to do so. As discussed elsewhere in
this preamble, the FDIC believes the regulations are unnecessary,
require entities to incur unnecessary costs associated with submitting
branch applications, and perpetuate a competitive disadvantage for
insured state nonmember banks and insured branches of foreign banks
relative to insured state member banks and national banks.
Additionally, the FDIC considered retaining the Statements of Policy
entitled, Statement of Policy Regarding the National Historic
Preservation Act of 1966 and Statement of Policy on National
Environmental Policy Act Procedures Relating to Filings Made with the
FDIC, but did not choose to do so. Upon reevaluation of the
applicability of what constitutes an ``undertaking'' under NHPA or a
``major Federal action'' under the NEPA, and deletion of requirements
related to the NHPA and the NEPA in 12 CFR parts 303 and 347, these
Statements of Policy would be unnecessary. Therefore, the FDIC is
amending 12 CFR parts 303 and 347 by deleting the requirements related
to the NHPA and the NEPA and concurrently rescinding the related
Statements of Policy.
Regulatory Analysis
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires that, in connection
with a notice of final rulemaking, an agency prepare and make available
for public comment a final regulatory flexibility analysis that
describes the impact of the final rule on small entities.\19\ However,
a final 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, including a statement providing a factual basis for the
certification, in the Federal Register, together with the rule. The
Small Business Administration (SBA) has defined ``small entities'' to
include banking organizations with total assets of less than or equal
to $600 million.\20\ Generally, the FDIC considers a significant effect
to be a quantified effect in excess of 5 percent of total annual
salaries and benefits, or 2.5 percent of total noninterest expenses.
The FDIC believes that effects in excess of these thresholds typically
represent significant effects for FDIC-supervised institutions. For the
reasons provided below, the FDIC certifies that the final rule will not
have a significant economic impact on a substantial
[[Page 72554]]
number of small banking organizations. Accordingly, a regulatory
flexibility analysis is not required.
---------------------------------------------------------------------------
\19\ 5 U.S.C. 601, et seq.
\20\ The SBA defines a small banking organization as having $600
million or less in assets, where ``a financial institution's assets
are determined by averaging the assets reported on its four
quarterly financial statements for the preceding year.'' See 13 CFR
121.201 (as amended by 84 FR 34261, effective August 19, 2019).
``SBA counts the receipts, employees, or other measure of size of
the concern whose size is at issue and all of its domestic and
foreign affiliates.'' See 13 CFR 121.103. Following these
regulations, the FDIC uses a covered entity's affiliated and
acquired assets, averaged over the preceding four quarters, to
determine whether the FDIC-supervised institution is ``small'' for
the purposes of RFA.
---------------------------------------------------------------------------
According to the most recent data, the FDIC supervises 3,309
insured depository institutions, of which 2,548 are considered small
banking organizations for the purposes of RFA.\21\ As previously
discussed, the final rule would (1) remove ``NEPA'' and ``NHPA'' as
defined terms in 12 CFR 303.2(w) and (x); (2) amend the branch
application filing procedures for state nonmember banks set forth in 12
CFR 303.42 by deleting the requirements related to the NHPA and the
NEPA set forth in paragraphs (b)(4) and (5); (3) amend the foreign
branch application notice procedures for state nonmember banks set
forth in 12 CFR 303.182 by removing the requirements to provide a
statement in accordance with NHPA set forth in paragraphs (a) and
(b)(2)(i), and by removing NHPA compliance as a basis for withholding
general consent to establish or relocate a foreign branch under 12 CFR
347.119(b); (4) amend the filing procedures for moving an insured
branch of a foreign bank set forth in 12 CFR 303.184 by deleting the
requirements related to the NHPA and the NEPA set forth in paragraphs
(a)(2)(iii) and (iv) and (d)(1)(iv); (5) rescind the Statement of
Policy Regarding the National Historic Preservation Act of 1966; and
(6) rescind the Statement of Policy on National Environmental Policy
Act Procedures Relating to Filings Made with the FDIC. In so doing, the
final rule amends the required contents for applications for
establishment of a branch and applications for relocation of a branch
or main office. The final rule could affect the 2,352 small state
nonmember depository institutions supervised by the FDIC. No insured
branches of foreign banks are considered small banking organizations
for the purposes of RFA.\22\
---------------------------------------------------------------------------
\21\ FDIC Call Report data for the period ending March 31, 2020.
\22\ FFIEC Reports of Condition and Income (Call Report), for
the period ending March 31, 2020.
---------------------------------------------------------------------------
Between 2015 and 2018, the FDIC received applications from 195
unique small insured State nonmember banks per year to establish a
branch and applications from 68 unique small insured State nonmember
banks per year to relocate a branch or main office, on average.\23\ For
purposes of this analysis, the FDIC is estimating that the number of
unique respondents affected by the final rule will be consistent with
this recent experience. Therefore, the FDIC estimates that the final
rule will affect approximately 195 small insured State nonmember banks
applying to establish a domestic branch and approximately 68 small
insured State nonmember institutions applying to relocate a branch or
main office, per year. In total, these 263 affected entities represent
no more than an estimated 10.3 percent of small FDIC-supervised
institutions.
---------------------------------------------------------------------------
\23\ FDIC Application Data.
---------------------------------------------------------------------------
The final rule is likely to reduce the costs associated with filing
Covered Applications for small entities, making the process more
efficient. Although the final rule is expected to reduce costs
associated with Covered Applications for small applicants dealing with
historic properties or environmental issues, the FDIC does not believe
the final rule will reduce the average hours per response for Covered
Applications. Additionally, as previously discussed, the FDIC is
currently the only Federal banking agency that requires consideration
of the NHPA and NEPA in connection with branch applications. Therefore,
the final rule is expected to remove a competitive disadvantage that
small insured state nonmember banks and insured branches of foreign
banks currently face relative to state member banks and national banks.
Based on the information above, and pursuant to section 605(b) of
the RFA, the FDIC certifies that the final rule will not have a
significant economic impact on a substantial number of small entities.
B. Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1995 (PRA),\24\ the FDIC may not conduct or sponsor, and a
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 affects the FDIC's current
information collection titled ``Application for a Bank to Establish a
Branch or Move its Main Office'' (OMB Control No. 3064-0070). In
particular, the final rule removes the requirements related to NHPA and
NEPA therefore reducing the PRA burden. However, the amount of hourly
burden previously indicated in connection with the PRA information
collection does not distinguish between the time to comply with the
NHPA and NEPA and the other non-NHPA/NEPA notification requirements.
For this reason, the FDIC is assuming that any allotted time dedicated
to NHPA and NEPA is minimal and will result in a zero net change in the
current estimated average hourly burden for the information collection.
Therefore, no submission will be made to OMB for review.
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\24\ 44 U.S.C. 3501-3521.
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C. Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the Riegle Community Development and
Regulatory Improvement Act (RCDRIA),\25\ in determining the effective
date and administrative compliance requirements for new regulations
that impose additional reporting, disclosure, or other requirements on
insured depository institutions (IDIs), each Federal banking agency
must consider, consistent with principles of safety and soundness and
the public interest, any administrative burdens that such regulations
would place on depository institutions, including small depository
institutions, and customers of depository institutions, as well as the
benefits of such regulations. In addition, section 302(b) of RCDRIA
requires new regulations and amendments to regulations that impose
additional reporting, disclosures, or other new requirements on IDIs
generally to take effect on the first day of a calendar quarter that
begins on or after the date on which the regulations are published in
final form.\26\ Because the final rule does not impose any reporting,
disclosure, or other new requirements on insured depository
institutions, the requirements of RCDRIA do not apply.
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\25\ 12 U.S.C. 4802(a).
\26\ Id. at 4802(b).
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D. Congressional Review Act
For purposes of Congressional Review Act (CRA), the OMB makes a
determination as to whether a final rule constitutes a ``major''
rule.\27\ If a rule is deemed a major rule by the OMB, the CRA
generally provides that the rule may not take effect until at least 60
days following its publication.\28\
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\27\ 5 U.S.C. 801 et seq.
\28\ 5 U.S.C. 801(a)(3).
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The CRA defines a ``major rule'' as any rule that the Administrator
of the Office of Information and Regulatory Affairs of the OMB finds
has resulted in or is likely to result in--(A) an annual effect on the
economy of $100,000,000 or more; (B) a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies or geographic regions, or (C) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-
[[Page 72555]]
based enterprises in domestic and export markets.\29\
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\29\ 5 U.S.C. 804(2).
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The OMB has determined that the final rule is not a major rule for
purposes of the CRA and the FDIC will submit the final rule and other
appropriate reports to Congress and the Government Accountability
Office for review.
E. Plain Language
Section 722 of the Gramm-Leach-Bliley Act \30\ requires each
Federal banking agency to use plain language in all of its proposed and
final rules published after January 1, 2000. The FDIC has sought to
present the final rule in a simple and straightforward manner and did
not receive any comments on the use of plain language in connection
with the proposed rule.
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\30\ Public Law 106-102, section 722, 113 Stat. 1338, 1471
(1999).
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List of Subjects
12 CFR Part 303
Administrative practice and procedure, Bank deposit insurance,
Banks, banking, Reporting and recordkeeping requirements, Savings
associations.
12 CFR Part 347
Authority delegations (Government agencies), Bank deposit
insurance, Banks, banking, Credit, Foreign banking, Investments,
Reporting and recordkeeping requirements, U.S. Investments abroad.
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Chapter III
Authority and Issuance
For the reasons set forth in the preamble, the FDIC amends 12 CFR
parts 303 and 347 as follows:
PART 303--FILING PROCEDURES
0
1. The authority citation for part 303 continues to read as follows:
Authority: 12 U.S.C. 378, 478, 1463, 1467a, 1813, 1815, 1817,
1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831i, 1831e,
1831o, 1831p-1, 1831w, 1831z, 1835a, 1843(l), 3104, 3105, 3108,
3207, 5412; 15 U.S.C. 1601-1607.
Sec. 303.2 [Amended]
0
2. In Sec. 303.2, remove paragraphs (w) and (x) and redesignate
paragraphs (y) through (gg) as paragraphs (w) through (ee),
respectively.
Sec. 303.42 [Amended]
0
3. In Sec. 303.42, remove paragraphs (b)(4) and (5) and redesignate
paragraphs (b)(6) through (8) as paragraphs (b)(4) through (6),
respectively.
0
4. Amend Sec. 303.182 by revising paragraphs (a) and (b)(2)(i) to read
as follows:
Sec. 303.182 Establishing, moving or closing a foreign branch of an
insured state nonmember bank.
(a) Notice procedures for general consent. Notice in the form of a
letter from an eligible depository institution establishing or
relocating a foreign branch pursuant to Sec. 347.117(a) of this
chapter must be provided to the appropriate FDIC office no later than
30 days after taking such action. The notice must include the location
of the foreign branch, including a street address. The FDIC will
provide written acknowledgment of receipt of the notice.
(b) * * *
(2) * * *
(i) The exact location of the proposed foreign branch, including
the street address.
* * * * *
0
5. Amend Sec. 303.184 by:
0
a. Removing paragraphs (a)(2)(iii) and (iv);
0
b. Redesignating paragraphs (a)(2)(v) and (vi) as paragraphs (a)(iii)
and (iv), respectively; and
0
c. Revising paragraph (d)(1)(iv).
The revision reads as follows:
Sec. 303.184 Moving an insured branch of a foreign bank.
* * * * *
(d) * * *
(1) * * *
(iv) Compliance with the CRA and any applicable related
regulations, including 12 CFR part 345, has been considered and
favorably resolved;
* * * * *
PART 347--INTERNATIONAL BANKING
0
6. The authority citation for part 347 continues to read as follows:
Authority: 12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103,
3104, 3105, 3108, 3109; Pub. L. 111-203, section 939A, 124 Stat.
1376, 1887 (July 21, 2010) (codified 15 U.S.C. 78o-7 note).
Sec. 347.119 [Amended]
0
7. Amend Sec. 347.119 by removing paragraph (b) and redesignating
paragraphs (c) and (d) as paragraphs (b) and (c), respectively.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Dated at Washington, DC, on October 20, 2020.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2020-23529 Filed 11-12-20; 8:45 am]
BILLING CODE 6714-01-P
