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FDIC Federal Register Citations

[Federal Register: September 25, 2008 (Volume 73, Number 187)]
[Rules and Regulations]              
[Page 55431-55432]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se08-1]                     

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 303

RIN 3064-AD28
 
Financial Education Programs That Include the Provision of Bank
Products and Services

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is amending
its regulations to permit state nonmember banks to participate or
assist in certain financial education programs conducted on school
premises where, in connection with the program, deposits are received,
checks are paid, or money is lent, without the need to submit a branch
application to, and receive prior approval from, the FDIC. However, any
state nonmember bank that desires to engage in such financial education
programs must satisfy certain conditions in order for the exemption to
apply.

DATES: The final rule is effective on September 25, 2008.

FOR FURTHER INFORMATION CONTACT: Donald R. Hamm, Section Chief, Risk
Management and Applications Section, (202) 898-3528, Division of
Supervision and Consumer Protection; or Mark L. Handzlik, Senior
Attorney, (202) 898-3990, or Robert C. Fick, Counsel, (202) 898-8962,
Supervision Branch, Legal Division, Federal Deposit Insurance
Corporation, 550 17th Street, NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

1. Background

    The FDIC recognizes the importance of financial education programs,
particularly for those individuals who have little or no experience
using bank-provided services. Such programs generally contribute to the
financial stability of individuals, families, and communities.
Accordingly, the FDIC supports the ongoing efforts of state nonmember
banks to enhance financial literacy, and continues to encourage
institutions to collaborate with other members of the community to
deliver financial education.
    On June 23, 2008, the FDIC published in the Federal Register an
interim final rule and request for comment titled, Financial Education
Programs that Include the Provision of Bank Products and Services (the
``Interim Rule'').\1\ The FDIC issued the Interim Rule in response to a
number of inquiries as to whether the definition of branch includes a
school or school facility where a state nonmember bank participates or
assists in a financial education program for the benefit of students.
Generally, through such programs, students are trained in various
banking functions and personal financial management. A bank employee
may serve as an advisor to the students and assist faculty in
developing a financial education curriculum.
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    \1\ See 73 FR 35337.
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    In some instances, students provide limited banking services to
other students, faculty, and parents directly at the school, on either
a part-time basis or designated school days. A bank engaged in such a
program could train students in bank operations and provide general
supervision over the program and the provision of banking services.
These services could include opening deposit accounts at the bank for
students, faculty and parents, and receiving deposits for credit to
such accounts. The participating bank may also pick up and deliver to
its main office or a branch any funds received by the students in
connection with the program.\2\
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    \2\ Note that this paragraph is not intended to provide an
exclusive list of permissible activities for banks involved in
financial education programs.
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    Section 18(d)(1) of the Federal Deposit Insurance Act (FDI Act)
generally provides that no state nonmember bank shall establish or
operate a new domestic branch without the prior written consent of the
FDIC.\3\ Under the FDI Act, the term domestic branch generally is
defined to include any branch bank, branch office, branch agency,
additional office or any branch place of business located in any State
or U.S. territory at which deposits are received or checks paid or
money lent (each a core-banking function).\4\ The FDIC has determined
by regulation that a messenger service that is established and operated
by a state nonmember bank, which performs one of the core-banking
functions, is a branch and requires a prior approval pursuant to these
statutory provisions.\5\ However, under certain circumstances, a bank's
participation in a financial education program conducted on school
premises differs from a bank messenger service in that any core-banking
function provided in connection with such program is (i) provided at
the discretion of the school; (ii) not provided to the general public;
and (iii) conducted and designed primarily for financial education
purposes. Moreover, participating in a financial education program
differs from establishing a branch because, generally, with respect to
such a program, the facility where banking services are provided is
established by the school.
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    \3\ See 12 U.S.C. 1828(d)(1).
    \4\ See 12 U.S.C. 1813(o).
    \5\ See 12 CFR 303.41. If, however, the messenger service is
established or operated by a non-affiliated third party, it
generally does not constitute a branch for purposes of Section 18(d)
and FDIC regulations. This interpretation is consistent with a plain
reading of Section 18(d)(1), and with the decision in Cades v. H & R
Block, where Justice Butzner, writing for the Fourth Circuit,
explained that ``courts apply a two-part test to decide whether a
bank is operating a branch office. First, the court determines
whether [the] branch is established and operated by the bank. * *
*'' See 43 F.3d 869, 814 (4th Cir. 1994), citing Independent Bankers
Ass'n of New York v. Marine Midland Bank, 757 F.2d 453, 456-63 (2d
Cir 1985); Independent Bankers Ass'n of America v. Smith, 534 F.2d,
921, 951-52 (D.C. Cir. 1976). See also First National Bank in Plant
City v. Dickinson, 396 U.S. 122, 137 n. 10 (1970).
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    The Interim Rule generally exempts from the definition of branch
any participation by a state nonmember bank in a financial education
program that is operated on school premises or a facility used by a
school, where, in connection with the program, deposits are received,
checks are paid, or money is lent, subject to certain conditions. The
principal purpose of the financial education program must be
educational, and not designed for the purpose of profit-making.
Further, any banking services provided in connection with the program
must be provided at the discretion of the school. Finally, the program
must be conducted in a safe

[[Page 55432]]

and sound manner and comply with applicable law.
    The FDIC received three comments on the Interim Rule from trade-
and research-based organizations. Generally, the commenters supported
the Interim Rule, and lauded the FDIC for recognizing the importance of
financial education programs, particularly for those individuals with
little or no experience using bank-provided services. The commenters
expressed no concerns regarding the Interim Rule, and they proposed no
substantive or technical revisions. However, the FDIC has made a
technical, nonsubstantive change to paragraph (a) of 12 CFR 303.41,
which involved moving the reference to the financial education program
exception provided in 12 CFR 303.46 to the sentence that lists the
other exceptions to the definition of branch. Except for this change,
the final rule is identical to the Interim Rule.

2. Final Rule

    The final rule excludes from the definition of branch any financial
education program operated on school premises or a facility used by a
school, where, in connection with the program, deposits are received,
checks are paid, or money is lent, subject to certain conditions.\6\ As
provided in this rule, the principal purpose of the program must be
financial education, and not for the purpose of profit-making. Further,
any banking services provided in connection with the program must be
provided at the discretion of the school. The FDIC expects that such
services would be limited in nature; available only to students,
parents, and faculty; and accessible on a part-time basis or designated
school days. The program must be conducted in a safe and sound manner
and comply with applicable law.
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    \6\ This exemption is consistent with a regulation promulgated
by the Office of the Comptroller of the Currency in 2001 which
exempts from the definition of branch a national bank's
participation in a financial literacy program conducted on school
premises. 12 CFR 7.1021.
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Regulatory Analysis and Procedure

A. Administrative Procedure Act

    Section 553(d) of the Administrative Procedure Act (APA) requires
the FDIC to publish a substantive rule at least 30 days before its
effective date unless, under subsection (d)(1), the rule establishes or
recognizes an exemption or relieves a restriction.\7\ This final rule
establishes an exemption from the definition of branch provided in 12
CFR part 303, subpart C, which has the effect of permitting state
nonmember banks to participate in certain financial education programs
conducted on school premises without having to submit a branch
application to, and receive prior approval from, the FDIC. Therefore,
the FDIC is not required to publish this final rule in the Federal
Register at least 30 days before its effective date.
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    \7\ See 5 U.S.C. 553(d).
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B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) requires an agency that is
issuing a proposed rule to prepare and make available for public
comment an initial regulatory flexibility analysis that describes the
impact of a proposed rule on small entities.\8\ Because this rulemaking
does not involve the issuance of a notice of proposed rulemaking, the
requirements of the RFA for a final regulatory flexibility analysis do
not apply.\9\
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    \8\ See 5 U.S.C. 603(a).
    \9\ See 5 U.S.C. 604.
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C. Paperwork Reduction Act

    The FDIC has determined that this final rule does not involve a
collection of information pursuant to the provisions of the Paperwork
Reduction Act of 1995.\10\
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    \10\ 44 U.S.C. 3501 et seq.
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List of Subjects in 12 CFR Part 303

    Banks, Banking, State nonmember banks, Filing procedures,
Establishment and relocation of domestic branches and offices,
Financial education programs.

Authority and Issuance

0
For the reasons set forth in the preamble, part 303 of chapter III of
title 12 of the Code of Federal Regulations is amended 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, 1813, 1815, 1817, 1818, 1823, 1819
(Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1,
1831w, 1835a, 1843(1), 3104, 3105, 3108, 3207, 15 U.S.C. 1601-
1607.2.

0
2. In Sec.  303.41, revise paragraph (a) to read as follows:

Sec.  303.41  Definitions.

* * * * *
    (a) Branch, except as provided in this paragraph, includes any
branch bank, branch office, 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, the Virgin Islands, and the Northern
Mariana Islands at which deposits are received or checks paid or money
lent. A branch does not include an automated teller machine, an
automated loan machine, a remote service unit, or a facility described
in section 303.46. The term branch also includes the following:
* * * * *

0
3. A new Sec.  303.46 is added to subpart C to read as follows:


Sec.  303.46  Financial Education Programs that Include the Provision
of Bank Products and Services.

    No branch application or prior approval is required in order for a
state nonmember bank to participate in one or more financial education
programs that involve receiving deposits, paying withdrawals, or
lending money if:
    (a) Such service or services are provided on school premises, or a
facility used by the school;
    (b) Such service or services are provided at the discretion of the
school;
    (c) The principal purpose of each program is financial education.
For example, the principal purpose of a program would be considered to
be financial education if the program is designed to teach students the
principles of personal financial management, banking operations, or the
benefits of saving for the future, and is not designed for the purpose
of profit-making; and
    (d) Each program is conducted in a manner that is consistent with
safe and sound banking practices and complies with applicable law.

    By Order of the Board of Directors.

    Dated at Washington, DC, the 18th day of September, 2008.

Federal Deposit Insurance Corporation.

Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. E8-22326 Filed 9-24-08; 8:45 am]

BILLING CODE 6714-01-P
 



 


Last Updated 09/25/2008 Regs@fdic.gov