[Federal Register: June 28, 1996 (Volume 61, Number 126)]
[Proposed Rules]
[Page 33696-33702]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 33696]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 335
RIN 3064-AB79
Securities of Nonmember Insured Banks
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Proposed rule.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is proposing
revisions to its regulations, detailing registration and reporting
requirements for non-member insured banks with securities required to
be registered under section 12 of the Securities Exchange Act of 1934
(Exchange Act). The proposal seeks to incorporate through cross
reference the corresponding regulations of the Securities and Exchange
Commission (SEC) into the provisions of the FDIC's securities
regulations. Incorporation through cross reference will assure that the
FDIC's regulations remain substantially similar to the SEC's
regulations, as required by law. The FDIC is requesting comments on the
cross reference to the SEC's regulations and what additional
provisions, if any it should include in the regulation.
DATES: Comments must be received September 26, 1996.
ADDRESSES: Comments should be directed to Jerry L. Langley, Executive
Secretary, Federal Deposit Insurance Corporation, 550 17th Street N.W.,
Washington, D.C. 20429. Comments may be hand delivered to room F-402,
1776 F Street N.W., Washington, D.C., on business days between 8:30
a.m. and 5:00 p.m. [FAX number (202) 898-3838, Internet address:
comments@FDIC.gov] Comments may also be inspected in the FDIC Public
Information Center, room 100, 801 17th Street, N.W., Washington, D.C.
between 8:30 a.m. and 5:00 p.m. on business days.
FOR FURTHER INFORMATION CONTACT: M. Eric Dohm, Staff Accountant,
Division of Supervision (202-898-8921), Lawrence H. Pierce, Securities
Activities Officer, Division of Supervision (202-898-8902), or Gerald
J. Gervino, Senior Attorney, Legal Division (202-898-3723), Federal
Deposit Insurance Corporation, 550 17th Street N.W., Washington, D.C.
20429.
SUPPLEMENTARY INFORMATION:
Background
Section 12(i) of the Securities Exchange Act of 1934, as amended,
15 U.S.C. 78l(i), grants authority to the FDIC to issue regulations
applicable to the securities of insured banks (including foreign banks
having an insured branch) which are neither members of the Federal
Reserve System nor District banks (nonmember banks), which are
substantially similar to the SEC's regulations under sections 12
(securities registration), 13 (periodic reporting), 14(a) (proxies and
proxy solicitation), 14(c) (information statements), 14(d) (tender
offers), 14(f) (election of directors contests), and 16 (beneficial
ownership and reporting) of the Exchange Act. Section 12(i) does not
however, require the FDIC to issue substantially similar regulations in
the event that the FDIC finds that implementation of such regulation is
not necessarily in the public interest or appropriate for protection of
investors and the FDIC publishes such findings with detailed reasons
therefor in the Federal Register.
To date, in 12 CFR part 335, the FDIC has generally maintained its
own version of regulations pursuant to sections 12, 13, 14(a), 14(c),
14(d), and 14(f) of the Exchange Act. In 1989, the FDIC incorporated by
cross reference the SEC regulations governing going private
transactions and issuer tender offers. (54 FR 53592, 12 CFR 335.409 and
335.521). In 1992, SEC regulations under section 16 of the Exchange Act
were incorporated by cross reference. (57 FR 4702, 12 CFR 335.401 and
335.402). In 1994, part 335 was amended to conform with more recent
changes in the comparable SEC regulations. In connection with its
proposed rule, the FDIC requested comment on the desirability of
incorporating the SEC rules by cross reference into its own rules (59
FR 22555 (May 2, 1994)).
The FDIC received six comment letters in response to its
solicitation. Commentators were asked to comment upon the following:
Should the FDIC consider proposing a revision to part 335, to
incorporate by cross reference the comparable rules of the SEC, rather
than continue to maintain the separate but substantially similar body
of rules contained in part 335 as is done presently? Interested persons
were asked to address: (1) The benefits and disadvantages of cross
referencing as a method for assuring substantial similarity between the
FDIC's and the SEC's regulations; (2) the potential cost savings or
cost burden of cross referencing; (3) whether the FDIC should continue
to review preliminary proxy materials and information statements; and
(4) any other issues regarding a cross referencing proposal which
commenters believe pertinent. Written comments were invited to be
submitted during a 60-day comment period.
All of the commenters supported cross referencing to some extent.
Two felt that the FDIC should be careful to adopt or preserve
regulations different from those of the SEC, where FDIC drafted
regulations would be more appropriate for banks. None provided an
estimate of cost savings from the cross referencing procedure. One
commenter indicated that if this cross referencing procedure is
adopted, the FDIC should provide notice to banks filing under part 335
that the SEC has amended rules applicable to banks by cross reference.
In the interest of quickly bringing its rules into similarity with
those of the SEC, the FDIC adopted the rule amendments as they had been
previously proposed. Since the cross referencing proposal was only
described generally, it is now necessary to publish an express cross
referencing proposal for comment upon the actual method and language to
be used.
The proposed revision would incorporate by cross reference the
comparable rules of the SEC rather than continue to maintain the
separate but substantially similar body of rules presently contained in
part 335.
12 CFR part 335 generally applies only to nonmember banks having
one or more classes of securities required to be registered under
section 12 of the Exchange Act. There are presently 191 banks whose
securities are registered.
[[Page 33697]]
Proposed Revisions to Part 335
The FDIC proposes to amend 12 CFR part 335 by incorporating through
cross reference, the regulations of the SEC issued under sections 12,
13, 14(a), 14(c), 14(d), and 14(f) of the Exchange Act. As a result,
with the exception of forms filed pursuant to section 16, the FDIC's
Exchange Act forms would be eliminated and the SEC's Exchange Act forms
would be utilized in filings with the FDIC. All forms filed with the
FDIC however, would be required to contain the name of the FDIC in lieu
of that of the SEC in order to avoid confusion. The FDIC believes that
incorporation through cross reference will make its regulations
substantially similar to those of the SEC, as well as those of other
federal financial institution regulatory agencies.
The proposed revision would make appropriate SEC regulations
applicable to persons subject to part 335, except where part 335
contains a differing or additional requirement or exception.
Incorporation through cross reference generally makes all SEC
regulations, and amendments thereto, applicable to registered nonmember
banks, unless the FDIC acts to vary the SEC's specific requirements.
The FDIC believes that this is an effective way to assure that FDIC
regulations issued under the Exchange Act remain substantially similar
to the SEC's regulations. However, the FDIC will still retain the
ability to exempt nonmember banks, through a separate FDIC rulemaking,
from any particular SEC rule it determines should not apply to such
banks. The FDIC also retains its rulemaking authority to subject
nonmember banks to additional or different regulations where warranted.
The FDIC believes that issuance of the proposed regulation would
simplify the administration and enforcement of the disclosure
provisions of the Exchange Act. This is the approach adopted by the
Board of Governors of the Federal Reserve System (12 CFR 208.16), the
Office of the Comptroller of the Currency (12 CFR 11.2), and the Office
of Thrift Supervision (12 CFR 563d.1). Further, as registrants,
investors, and their counsel acquire or expand their familiarity with
SEC regulations, incorporation by cross reference should help promote
uniformity and consistency of Exchange Act disclosure, without
affecting the quality of the administration and enforcement of the
provisions of the Exchange Act for which the FDIC is the appropriate
regulatory agency.
The FDIC's principal concern with respect to the elimination of
FDIC forms and subsequent use of SEC forms is that filers may
incorrectly forward the forms to the SEC. This can create embarrassment
and legal liability on the part of the filers for unintentional failure
to file the forms. Errors of this kind can interfere with the smooth
and efficient administration of public filings under the Exchange Act.
For this reason, the FDIC proposes that on all forms to be filed with
the FDIC, the cover pages would be required to prominently display the
name of the FDIC in lieu of that of the SEC in order to avoid confusion
as to the appropriate filing agency.
Proposed Differences From Current Part 335 Regulations
Following is a discussion of the significant differences between
the FDIC's existing regulations and the SEC's regulations and
procedures which would be incorporated by cross reference under this
proposed rule. While there are other differences in the regulations,
the FDIC believes them to be technical or minor in nature. If the FDIC
adopts the proposed rule, each of these differences will be eliminated.
A. Minimum Asset Test for Registration
The regulations of the SEC and the FDIC differ in the minimum total
asset size of an issuing company. The company's asset size is used as
one of the triggering criteria (in addition to the number of
shareholders) for requiring registration of securities under section 12
of the Exchange Act. Section 12(g) of the Exchange Act (17 U.S.C.
781(g)) requires any issuing company with at least 500 shareholders and
a minimum total assets of $1 million to register the class of
securities, subject to limits, exemptions, and conditions prescribed by
the SEC or other appropriate regulatory agency. The SEC's Rule 12g-1
(17 CFR 240.12g-1) prescribes the minimum asset test to be $10 million
in total assets. Currently, the FDIC rules do not alter the statutory
standard. Incorporation of the SEC's regulations by cross reference,
would adopt the SEC's threshold of $10 million.
B. Shareholder Proposal Rules
The regulations of the SEC and the FDIC differ primarily with
respect to the proponent's ownership requirements in stock of an
issuing company, and the number of proposals which a proponent may
present. The FDIC's rules presently require only that the proponent be
a shareholder of the registrant, and that a proponent may submit a
maximum of two proposals for inclusion in a registrant's annual meeting
proxy statement. The SEC's Rule 14a-8 (17 CFR 240.14a-8) requires a
proponent to beneficially own at least 1% or $1,000 in market value of
securities entitled to be voted on the proposal, requires a proponent
to have held such securities for at least one year, and permits a
proponent to submit only one proposal for inclusion in a registrant's
annual meeting proxy statement. Incorporation of the SEC's regulations
by cross reference, would adopt the SEC's requirements which include
the differences described above.
C. Certification, Suspension of Trading, and Removal From Listing by
Exchanges; Unlisted Trading; and Related Filing Requirements
The SEC's rules currently require a national securities exchange to
formally certify that a registrant's security has been approved for
listing. The SEC's rules contain provisions applicable to suspension of
trading on a national securities exchange, withdrawal, and striking of
a security from listing and registration. Also, SEC rules prescribe
requirements relative to applications, changes, termination,
suspension, or exemption of securities admitted to unlisted trading on
a national securities exchange. The FDIC's rules currently also require
certification by a national securities exchange, but do not contain the
additional provisions summarized above. Incorporation of the SEC's
regulations by cross reference, would adopt the SEC's rules on
Certification By Exchanges (17 CFR 240.12d1-1 through 12d1-6),
Suspension Of Trading, Withdrawal, And Striking From Listing And
Registration (17 CFR 240.12d2-1 through 12d2-6), and Unlisted Trading
(17 CFR 240.12f-1 through 12f-6).
D. Availability of Exchange Act Filings at Federal Reserve Banks
FDIC regulations currently require that copies of all registration
statements and periodic reports required by 12 CFR 335.301 through
335.365 (exclusive of exhibits), the proxy and information statements
required by 12 CFR 335.201, and annual reports to security holders
required by 12 CFR 335.203 will be available for inspection at the
Federal Reserve Bank (FRB) of the District in which the bank making the
submission is located. The FDIC staff believes that there has been
extremely little if any public interest in inspecting these Exchange
Act filings at the Federal Reserve Banks. It is also believed that it
is difficult for the public to access these filings. Adoption of this
proposed rule would eliminate the availability of these Exchange Act
filings at the Federal Reserve Banks. All Exchange Act filings
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will still be available for inspection at and copies may be obtained
from the FDIC in Washington, D.C.
Proposed Differences From SEC Regulations (Superseded SEC Regulations
and FDIC Substituted Regulations)
Following is a discussion of the significant differences between
the applicable requirements assuming adoption of this proposed rule by
FDIC, and the SEC's regulations and procedures which would be
incorporated by cross reference. Unless any particular provisions of
the SEC's Exchange Act regulations are specifically superseded by the
FDIC, incorporation by cross reference would make such provisions
applicable to nonmember banks, related parties and investors. The FDIC
rules under 12 CFR part 335 currently contain these provisions or
requirements and retention thereof is considered warranted. If the FDIC
adopts this proposed rule, each of the following differences between
the rules of the FDIC and the rules of the SEC will remain in effect.
A. Review of Proxy and Information Statements
The SEC and the FDIC regulations differ significantly in the type
of proxy and information statements subject to regulatory review prior
to distribution to shareholders. The SEC requires preliminary filings
of proxy and information statements, but only concerning those
shareholder meetings which are other than ``routine'' annual meetings.
In such cases, the SEC requires preliminary filings to be filed ten
days prior to distribution to shareholders (17 CFR 240.14a-6 and 17 CFR
240.14c-5). The FDIC however, currently requires preliminary filings
for all shareholder meetings, and requires that the preliminary filings
be made at least ten days before routine meetings and 15 days before
other than routine meetings (12 CFR 335.204).
The SEC regulations exempt proxy statements for ``routine'' annual
meetings from the requirement of preliminary filing and advance review.
While the FDIC receives a moderate number of ``routine'' meeting
filings, the staff has found that it is this category of filings where
the most fundamental errors are made. Proxy statements for ``routine''
annual meetings often contain more basic errors and omissions than in
the case of ``non-routine'' meetings. In the absence of an advance
filing, the FDIC must choose between requiring a new meeting after the
problem is belatedly discovered or overlooking noncompliance until the
following year. A similar problem may occur in enforcing the
regulations with banks that misread or are negligent in interpreting
the term ``routine''.
Accordingly, the FDIC is proposing that its rules under 12 CFR part
335 continue to require the filing of both routine and non-routine
preliminary proxy materials for staff review and comment prior to their
distribution to shareholders. The FDIC staff believes that the overall
benefits resulting from the current requirement under 12 CFR part 335
to file ``routine'' preliminary proxy statements, exceed the costs
attributed to making those filings. Although the FDIC considers a
continuation of these requirements appropriate subsequent to adoption
of a cross referencing rule, it intends to perform a periodic
assessment of this requirement in light of its experience and will
propose revisions as warranted.
B. Disclosure of Extensions of Credit to Insiders
The SEC and the FDIC regulations contain requirements for financial
institution disclosure of loans to its insiders. SEC regulations
generally require the disclosure of certain insider indebtedness in
excess of $60,000 which have preferential terms, were not made in the
ordinary course of business, or which involve more than the normal risk
of collectibility or involve other unfavorable features. In contrast,
since 1965, the FDIC has required: (a) disclosure of insiders'
indebtedness on a basis substantially similar to that of the SEC, but
without the $60,000 threshold; and (b) basic disclosure of relatively
large extensions of credit to insiders and to insiders as a group,
based strictly upon the amount of indebtedness.
Even though loans to insiders are often subject to amount
limitations in banking law and regulation, significant amounts of
insider loans yet occur. The proposed rule would incorporate the SEC's
indebtedness of management disclosure requirements and would also add a
requirement to disclose large extensions of credit to insiders and to
insiders as a group, based solely upon the amount of indebtedness. The
FDIC staff believes that the overall benefit resulting from
continuation of the FDIC's current disclosure requirements under 12 CFR
part 335 is in the public interest and is appropriate to the banking
industry.
C. Filing Fees
The regulations of SEC include very specific requirements for the
payment of filing fees which are applicable to and must be paid by any
person or entity filing reports with the SEC under the Exchange Act.
The FDIC's proposed rules will not require filing fees to be paid by
any person, registrant, or entity making Exchange Act filings with the
FDIC.
D. Electronic Data Gathering Analysis and Retrieval (EDGAR)
The SEC's Regulation S-T (17 CFR part 232) requires all registrants
to submit filings in electronic format pursuant to its EDGAR system.
Although the FDIC is studying the feasibility of the acceptance and
administration of electronic filings under the Exchange Act, the FDIC
does not accept and is not proposing to accept electronic filings at
this time.
E. Legal Proceedings
The SEC and the FDIC regulations currently both require disclosure
of legal proceedings in certain filings under the Exchange Act. The
FDIC generally requires disclosure of all legal proceedings required to
be disclosed by the SEC, and in addition, the FDIC's regulations deem
as material and require disclosure of administrative or judicial
proceedings arising under section 8 of the Federal Deposit Insurance
Act. The FDIC is proposing that its rules under 12 CFR part 335
incorporate the SEC's legal proceedings disclosure requirements by
cross reference, and in addition, continue to deem as material and
require disclosure of administrative or judicial proceedings arising
under section 8 of the Federal Deposit Insurance Act. The FDIC staff
believes that the overall benefit resulting from the explicit
requirement to disclose proceedings arising under section 8 of the
Federal Deposit Insurance Act is in the public interest and is
appropriate to the banking industry.
Request for Public Comments
The Board hereby requests comment on all aspects of the proposed
rule, particularly those specifically mentioned above. The FDIC
requests specific written comments from the public regarding:
(1) The benefits and disadvantages of cross referencing as a method
for assuring substantial similarity between FDIC and SEC regulations;
(2) The potential cost savings or cost burden of cross referencing;
Please include estimates of specific dollar amounts of any anticipated
benefits, as well as amounts of transitionary and continuing costs such
as purchase of reference aides, staff training, and any
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necessary additional professional assistance;
(3) Whether the FDIC should provide any specific exemptions from,
or separate additions to the SEC's regulations;
(4) Whether the FDIC should continue to require disclosure of
insider extensions of credit as it currently does under its rules in 12
CFR 335.212 Item 7(b); and
(5) Whether the FDIC should continue to also make Exchange Act
filings available for inspection at the Federal Reserve Banks.
(6) The appropriate time frame for implementation of the final
rule, including the amount of time which should pass after publication
of the final rule before compliance with the final rule is required;
and
(7) Any other issues regarding the proposal which commenters
believe would assist in this rulemaking.
Regulatory Flexibility Act
Under section 605(b) of the Regulatory Flexibility Act (RFA) (5
U.S.C. 605(b)), the initial regulatory flexibility analysis otherwise
required under section 603 of the RFA (5 U.S.C. 603) is not required if
the head of the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities
and the agency publishes such certification in the Federal Register
along with its general notice of proposed rulemaking. Pursuant to
section 605(b) of the RFA, the FDIC certifies that this proposed rule
would apply only to those banks whose securities are publicly held.
Other covered persons include: insiders of banks; large shareholders of
banks; and bidders for bank stock.
These regulations will cross-reference SEC regulations. By statute
any differences must be specifically justified through the rulemaking
process. The regulations are functionally almost identical. They are
issued under the same statutory authority. They share a common
legislative purpose. The FDIC considers the applicable SEC rule,
defining ``small entities'', a necessary standard in order to maintain
fair and comparable regulation. The FDIC is comparing FDIC regulated
banks and SEC regulated nonbank entities, including bank holding
companies. The applicable SEC definition of ``small entities'' sets the
upper limit at $5 million. The SEC has delayed raising this limit until
it completes its current and future initiatives in this area. Any SEC
revisions in this area should pass through to entities subject to part
335. Currently, there are no banks below this limit filing under part
335. Further, this rulemaking does not substantially change existing
filing requirements for any individual. Based upon this factual
background, the FDIC certifies that the proposed amendments will have
no economic impact on any identifiable small entities as defined for
the class by SEC which is the general regulator in the area.
Paperwork Reduction Act
The collection of information in this proposed rule has been
reviewed and approved by the Office of Management and Budget under
control number 3064-0030 in accordance with the Paperwork Reduction Act
of 1980 (44 U.S.C. 3501 et seq.). Comments on the accuracy of the
burden estimate and suggestions for reducing the burden should be
directed to the Office of Management and Budget, Paperwork Reduction
Project (3064-0030), Washington, D.C. 20503, with copies of such
comments to be sent to Steven F. Hanft, Office of the Executive
Secretary, room F-400, 550 17th Street, N.W., Washington, D.C. 20429.
This information is needed to assure compliance with the Exchange
Act and to provide information to investors and the public about the
condition of registered nonmember banks. The likely respondents are
for-profit financial institutions--registered nonmember banks, as well
as their directors, executive officers and principal shareholders. The
total reporting burden for all collections of information in this
regulation is currently estimated as follows:
Number of Respondents.............................................3,213
Number of Responses Per
Respondent.......................................................1.67
Total Annual Responses............................................5,363
Hours Per Response.................................................8.60
Total Annual Burden Hours........................................46,036
The estimated annual burden per respondent varies from 30 minutes
to 200 hours, depending on the particular form and individual
circumstances, with an estimated average of 8.60 hours.
Cost Benefit Analysis
This proposed revision is generally not expected to result in
material increases in costs and burden to respondents. Some filers,
however, may realize an increase in costs due to an increased need for
professional guidance in order to facilitate the making of filings
under the Exchange Act. Any overall increase in costs resulting from
this proposed rule should be moderate, however, due to the existing
general familiarity with the SEC's regulations on the part of
registrants, investors, and their counsel. Any such increase in overall
costs should be offset by elimination of the need for potential filers
to become familiar with two separate sets of regulations implementing
the filing requirements of the Exchange Act.
Statutory Basis
The revisions to the FDIC's rules under sections 12, 13, 14(a),
14(c), 14(d), 14(f) and 16 of the Exchange Act, are being adopted by
the FDIC pursuant to Exchange Act section 12(i).
List of Subjects in 12 CFR Part 335
Accounting, Banks, banking, Confidential business information,
Reporting and recordkeeping requirements, Securities.
For the reasons set forth in the preamble, the FDIC proposes to
revise part 335 to read as follows:
PART 335--SECURITIES OF NONMEMBER INSURED BANKS
Sec.
335.101 Scope of part, authority and OMB control number.
335.111 Forms and schedules.
335.201 Securities exempted from registration.
335.211 Registration and reporting.
335.221 Forms for registration of securities and similar matters.
335.231 Certification, suspension of trading, and removal from
listing by exchanges.
335.241 Unlisted trading.
335.251 Forms for notification of action taken by national
securities exchanges.
335.261 Exemptions; terminations; and definitions.
335.301 Reports of issuers of securities registered pursuant to
section 12.
335.311 Forms for annual, quarterly, current, and other reports of
issuers.
335.321 Maintenance of records and issuer's representations in
connection with required reports
335.331 Acquisition statements and acquisitions of securities by
issuers.
335.401 Solicitations of proxies.
335.501 Tender offers.
335.601 Requirements of section 16 of the Securities Exchange Act
of 1934.
335.611 Initial statement of beneficial ownership of securities
(Form F-7).
335.612 Statement of changes in beneficial ownership of securities
(Form F-8).
335.613 Annual statement of beneficial ownership of securities
(Form F-8A).
335.701 Filing requirements, public reference, and confidentiality.
335.801 Inapplicable SEC regulations; FDIC substituted regulations;
additional information.
Authority: 15 U.S.C. 78l(i).
Sec. 335.101 Scope of part, authority and OMB control number.
(a) This part is issued by the Federal Deposit Insurance
Corporation (the
[[Page 33700]]
FDIC) under section 12(i) of the Securities Exchange Act of 1934, as
amended (15 U.S.C. 78)(the Exchange Act) and applies to all securities
of FDIC insured banks (including foreign banks having an insured
branch) which are neither a member of the Federal Reserve System nor a
District bank (collectively referred to as nonmember banks) that are
subject to the registration requirements of section 12(b) or section
12(g) of the Exchange Act (registered nonmember banks). The FDIC is
vested with the powers, functions, and duties vested in the Securities
and Exchange Commission (the Commission or SEC) to administer and
enforce the provisions of sections 12, 13, 14(a), 14(c), 14(d), 14(f),
and 16 of the Securities Exchange Act of 1934, as amended (the Exchange
Act)(15 U.S.C. 78l, 78m, 78n(a), 78n(c), 78n(d), 78n(f), and 78p)),
regarding nonmember banks with one or more classes of securities
subject to the registration provisions of sections 12(b) and 12(g).
(b) This part generally incorporates through cross reference, the
regulations of the SEC issued under sections 12, 13, 14(a), 14(c),
14(d), 14(f), and 16 of the Exchange Act. References to the Commission
are deemed to refer to the FDIC unless the context otherwise requires.
(c) The Office of Management and Budget has reviewed and approved
the recordkeeping and reporting required by this part (OMB control
number 3064-0030).
Sec. 335.111 Forms and schedules.
The Exchange Act regulations of the SEC, which are incorporated by
cross reference under this part, require the filing of forms and
schedules as applicable. Reference is made to SEC Exchange Act
regulation 17 CFR
249.0-1 regarding the availability of all applicable SEC Exchange Act
forms. Required schedules are codified and are found within the context
of the SEC's regulations. The filings of all applicable SEC forms and
schedules shall be made with the FDIC at the address in this section.
They shall be titled with the name of the FDIC in substitution for the
name of the SEC. Forms F-7 (Sec. 335.611), F-8 (Sec. 335.612), F-8A
(Sec. 335.613), are FDIC forms which are issued under section 16 of the
Exchange Act and can be obtained from the Registration and Disclosure
Section, Division of Supervision, Federal Deposit Insurance
Corporation, 550 17th Street N.W., Washington, D.C. 20429. Reference is
also made to Sec. 335.701 for general filing requirements, public
reference, and confidentiality provisions.
Sec. 335.201 Securities exempted from registration.
Persons generally subject to registration requirements under
Exchange Act section 12 and subject to this part, shall follow the
applicable and currently effective SEC regulations relative to
exemptions from registration issued under sections 3 and 12 of the
Exchange Act as codified at 17 CFR 240.3a12-1 through 240.3a12-11;
240.12a-4 through 240.12a-7; 240.12g-1 through 240.12h-4.
Sec. 335.211 Registration and reporting.
Persons with securities subject to registration under Exchange Act
sections 12(b) and 12(g), required to report under Exchange Act section
13, and subject to this part shall follow the applicable and currently
effective SEC regulations issued under section 12(b) of the Exchange
Act as codified at 17 CFR 240.12b-1 through 240.12b-36.
Sec. 335.221 Forms for registration of securities and similar matters.
(a) The applicable forms for registration of securities and similar
matters are codified in subpart C of 17 CFR part 249. All forms shall
be filed with the FDIC as appropriate and shall be titled with the name
of the FDIC instead of the SEC.
(b) The requirements for Financial Statements can generally be
found in Regulation S-X (17 CFR part 210). Banks may also refer to the
instructions for FFIEC Reports of Income and Reports of Condition when
preparing unaudited interim statements. The requirements for
Management's Discussion and Analysis of Financial Condition and Results
of Operations can be found at 17 CFR 229.300. Industry Guide 3,
Statistical Disclosure by Bank Holding Companies, is codified at 17 CFR
229.802.
(c) A ``small business issuer'', as defined under 17 CFR 240.12b-2,
has the option of filing Small Business (SB) Forms (as codified in 17
CFR part 249) in lieu of the Exchange Act forms otherwise required to
be filed, which provide for financial and other item disclosures in
conformance with Regulation S-B of the Securities and Exchange
Commission (17 CFR part 228). The definition of ``small business
issuer'', generally includes banks with annual revenues of less than
$25 million, whose voting stock does not have a public float of $25
million or more.
Sec. 335.231 Certification, suspension of trading, and removal from
listing by exchanges.
The provisions of the applicable and currently effective SEC
regulations under section 12(d) of the Exchange Act shall be followed
as codified at 17 CFR 240.12d1-1 through 240.12d2-2.
Sec. 335.241 Unlisted trading.
The provisions of the applicable and currently effective SEC
regulations under section 12(f) of the Exchange Act shall be followed
as codified at 17 CFR 240.12f-1 through 17 CFR 240.12f-6.
Sec. 335.251 Forms for notification of action taken by national
securities exchanges.
The applicable forms for notification of action taken by national
securities exchanges are codified in subpart A of 17 CFR part 249. All
forms shall be filed with the FDIC as appropriate and shall be titled
with the name of the FDIC instead of the SEC.
Sec. 335.261 Exemptions; terminations; and definitions.
The provisions of the applicable and currently effective SEC
regulations under sections 12(g) and 12(h) of the Exchange Act shall be
followed as codified at 17 CFR 240.12g-1 through 240.12h-4.
Sec. 335.301 Reports of issuers of securities registered pursuant to
section 12.
The provisions of the applicable and currently effective SEC
regulations under section 13(a) of the Exchange Act shall be followed
as codified at 17 CFR 240.13a-1 through 240.13a-17.
Sec. 335.311 Forms for annual, quarterly, current and other reports of
issuers.
(a) The applicable forms for annual, quarterly, current, and other
reports are codified in subpart D of 17 CFR part 249. All forms shall
be filed with the FDIC as appropriate and shall be titled with the name
of the FDIC instead of the SEC.
(b) The requirements for Financial Statements can generally be
found in Regulation S-X (17 CFR part 210). Banks may also refer to the
instructions for FFIEC Reports of Income and Reports of Condition when
preparing unaudited interim reports. The requirements for Management's
Discussion and Analysis of Financial Condition and Results of
Operations can be found at 17 CFR 229.300. Industry Guide 3,
Statistical Disclosure by Bank Holding Companies, is codified at 17 CFR
229.802.
(c) A ``small business issuer'', as defined under 17 CFR 240.12b-2,
has the option of filing Small Business (SB) Forms (as codified in 17
CFR part 249) in lieu of the Exchange Act forms otherwise required to
be filed, which provide for financial and other item disclosures in
conformance with Regulation S-B of the Securities and
[[Page 33701]]
Exchange Commission (17 CFR part 228). The definition of ``small
business issuer'', generally includes banks with annual revenues of
less than $25 million, whose voting stock does not have a public float
of $25 million or more.
Sec. 335.321 Maintenance of records and issuer's representations in
connection with required reports.
The provisions of the applicable and currently effective SEC
regulations under section 13(b) of the Exchange Act shall be followed
as codified at 17 CFR 240.13d2-1 through 240.13b2-2.
Sec. 335.331 Acquisition statements and acquisitions of securities by
issuers.
The provisions of the applicable and currently effective SEC
regulations under section 13(d) and 13(e) of the Exchange Act shall be
followed as codified at 17 CFR 240.13d-1 through 240.13e-102.
Sec. 335.401 Solicitations of proxies.
The provisions of the applicable and currently effective SEC
regulations under section 14(a) and 14(c) of the Exchange Act shall be
followed as codified at 17 CFR 240.14a-1 through 17 CFR 240.14a-103 and
17 CFR 240.14c-1 through 240.14c-101.
Sec. 335.501 Tender offers.
The provisions of the applicable and currently effective SEC
regulations under section 14(d), 14(e), and 14(f) of the Exchange Act
shall be followed as codified at 17 CFR 240.14d-1 through 240.14f-1.
335.601 Requirements of section 16 of the Securities Exchange Act of
1934.
Persons subject to section 16 of the Act with respect to securities
registered under this part shall follow the applicable and currently
effective SEC regulations issued under section 16 of the Act (17 CFR
240.16a-1 through 240.16e-1), except that the forms described in
Sec. 335.611 (Form F-7), Sec. 335.612 (Form F-8), and Sec. 335.613
(Form F-8A) shall be used in lieu of SEC Form 3 (17 CFR 249.103), Form
4 (17 CFR 249.104), or Form 5 (17 CFR 249.105), respectively. Copies of
Forms F-7, F-8, F-8A and the instructions thereto can be obtained from
the Registration and Disclosure Section, Division of Supervision,
Federal Deposit Insurance Corporation, 550 17th Street N.W.,
Washington, D.C. 20429.
Sec. 335.611 Initial statement of beneficial ownership of securities
(Form F-7).
This form shall be filed in lieu of SEC Form 3 pursuant to SEC rule
16a-3 (17 CFR 240.16a-3) for initial statements of beneficial ownership
of securities. The FDIC is authorized to solicit the information
required by this form pursuant to sections 16(a) and 23(a) of the
Securities Exchange Act of 1934 (15 U.S.C. 78p and 78w) and the rules
and regulations thereunder. SEC regulations referenced in this form are
codified at 17 CFR 240.16a-1 through 240.16e-1.
Sec. 335.612 Statement of changes in beneficial ownership of
securities (Form F-8).
This form shall be filed pursuant to SEC rule 16a-3 (17 CFR
240.16a-3) for statements of changes in beneficial ownership of
securities. The FDIC is authorized to solicit the information required
by this form pursuant to sections 16(a) and 23(a) of the Securities
Exchange Act of 1934 (15 U.S.C. 78p and 78w) and the rules and
regulations thereunder. SEC regulations referenced in this form are
codified at 17 CFR 240.16a-1 through 240.16e-1.
Sec. 335.613 Annual statement of beneficial ownership of securities
(Form F-8A).
This form shall be filed pursuant to SEC rule 16a-3 (17 CFR
240.16a-3) for annual statements of beneficial ownership of securities.
The FDIC is authorized to solicit the information required by this form
pursuant to sections 16(a) and 23(a) of the Securities Exchange Act of
1934 (15 U.S.C. 78p and 78w), and the rules and regulations thereunder.
SEC regulations referenced in this form are codified at 17 CFR 240.16a-
1 through 240.16e-1.
Sec. 335.701 Filing requirements, public reference, and
confidentiality.
(a) Filing requirements. Unless otherwise indicated in this part,
one original and four conformed copies of all papers required to be
filed with the FDIC under the Exchange Act or regulations thereunder
shall be filed at its office in Washington, D.C. Official filings made
at the FDIC's office in Washington, D.C. should be addressed as
follows: Attention: Registration and Disclosure Section, Division of
Supervision, Federal Deposit Insurance Corporation, 550 17th Street
N.W., Washington, D.C. 20429. Material may be filed by delivery to the
FDIC through the mails or otherwise. The date on which papers are
actually received by the FDIC shall be the date of filing thereof if
all of the requirements with respect to the filing have been complied
with.
(b) Inspection. Except as provided in paragraph (c) of this
section, all information filed regarding a security registered with the
FDIC will be available for inspection at the Federal Deposit Insurance
Corporation, 550 17th Street N.W., Washington, D.C.
(c) Nondisclosure of certain information filed. Any person filing
any statement, report, or document under the Act may make written
objection to the public disclosure of any information contained therein
in accordance with the procedure set forth below.
(1) The person shall omit from the statement, report, or document,
when it is filed, the portion thereof that it desires to keep
undisclosed (hereinafter called the confidential portion). In lieu
thereof, it shall indicate at the appropriate place in the statement,
report, or document that the confidential portion has been so omitted
and filed separately with the FDIC.
(2) The person shall file with the copies of the statement, report,
or document filed with the FDIC:
(i) As many copies of the confidential portion, each clearly marked
``Confidential Treatment'', as there are copies of the statement,
report, or document filed with the FDIC and with each exchange, if any.
Each copy shall contain the complete text of the item and,
notwithstanding that the confidential portion does not constitute the
whole of the answer, the entire answer thereto; except that in case the
confidential portion is part of a financial statement or schedule, only
the particular financial statement or schedule need be included. All
copies of the confidential portion shall be in the same form as the
remainder of the statement, report, or document;
(ii) An application making objection to the disclosure of the
confidential portion. Such application shall be on a sheet or sheets
separate from the confidential portion, and shall contain:
(A) An identification of the portion of the statement, report, or
document that has been omitted;
(B) a statement of the grounds of objection;
(C) consent that the FDIC may determine the question of public
disclosure upon the basis of the application, subject to proper
judicial reviews;
(D) the name of each exchange, if any, with which the statement,
report, or document is filed;
(iii) The copies of the confidential portion and the application
filed in accordance with this paragraph shall be enclosed in a separate
envelope marked ``Confidential Treatment'' and addressed to Executive
Secretary, Federal Deposit Insurance Corporation, Washington, D.C.
20429.
(3) Pending the determination by the FDIC as to the objection filed
in accordance with paragraph (c)(2)(ii) of
[[Page 33702]]
this section, the confidential portion will not be disclosed by FDIC.
(4) If the FDIC determines that the objection shall be sustained, a
notation to that effect will be made at the appropriate place in the
statement, report, or document.
(5) If the FDIC shall have determined that disclosure of the
confidential portion is in the public interest, a finding and
determination to that effect will be entered and notice of the finding
and determination will be sent by registered or certified mail to the
person.
(6) The confidential portion shall be made available to the public:
(i) Upon the lapse of 15 days after the dispatch of notice by
registered or certified mail of the finding and determination of the
FDIC described in paragraph (c)(5) of this section, if prior to the
lapse of such 15 days the person shall not have filed a written
statement that he intends in good faith to seek judicial review of the
finding and determination;
(ii) Upon the lapse of 60 days after the dispatch of notice by
registered or certified mail of the finding and determination of the
FDIC, if the statement described in paragraph (c)(6)(i) of this section
shall have been filed and if a petition for judicial review shall not
have been filed within such 60 days; or
(iii) If such petition for judicial review shall have been filed
within such 60 days upon final disposition, adverse to the person, of
the judicial proceedings.
(7) If the confidential portion is made available to the public, a
copy thereof shall be attached to each copy of the statement, report,
or document filed with the FDIC and with each exchange concerned.
Sec. 335.801 Inapplicable SEC regulations; FDIC substituted
regulations; additional information.
(a) Filing fees. Filing fees will not be charged relative to any
filings or submissions of materials made with the FDIC pursuant to the
cross reference to regulations of the SEC issued under sections 12, 13,
14(a), 14(c), 14(d), 14(f), and 16 of the Exchange Act, and this part.
(b) Electronic filings. The FDIC does not participate in the SEC's
EDGAR (Electronic Data Gathering Analysis and Retrieval) electronic
filing program (17 CFR part 232), and does not permit electronically
transmitted filings or submissions of materials in electronic format to
the FDIC.
(c) Legal proceedings. Whenever this part or cross referenced
provisions of the SEC regulations require disclosure of legal
proceedings, administrative or judicial proceedings arising under
section 8 of the Federal Deposit Insurance Act shall be deemed material
and shall be described.
(d) Indebtedness of management. Whenever this part or cross
referenced provisions of the SEC regulations require disclosure of
indebtedness of management, extensions of credit to specified persons
in excess of ten (10) percent of the equity capital accounts of the
bank or $5 million, whichever is less, shall be deemed material and
shall be disclosed in addition to any other required disclosure. The
disclosure of this material indebtedness shall include the largest
aggregate amount of indebtedness (in dollar amounts, and as a
percentage of total equity capital accounts at the time), including
extensions of credit or overdrafts, endorsements and guarantees
outstanding at any time since the beginning of the bank's last fiscal
year and as of the latest practicable date.
(1) If aggregate extensions of credit to all specified persons as a
group exceeded 20 percent of the equity capital accounts of the bank at
any time since the beginning of the last fiscal year, the aggregate
amount of such extensions of credit shall also be disclosed.
(2) Other loans are deemed material and shall be disclosed where:
(i) The extension(s) of credit were not made on substantially the
same terms, including interest rates, collateral and repayment terms as
those prevailing at the time for comparable transactions with other
than the specified persons;
(ii) The extension(s) of credit were not made in the ordinary
course of business; or
(iii) The extension(s) of credit have involved or presently involve
more than a normal risk of collectibility or other unfavorable features
including the restructuring of an extension of credit, or a delinquency
as to payment of interest or principal.
(e) Additional information; filing of other statements in certain
cases. (1) In addition to the information expressly required to be
included in a statement, form, schedule or report, there shall be added
such further material information, if any, as may be necessary to make
the required statements, in light of the circumstances under which they
are made, not misleading.
(2) The FDIC may, upon the written request of the bank, and where
consistent with the protection of investors, permit the omission of one
or more of the statements or disclosures herein required, or the filing
in substitution therefor of appropriate statements or disclosures of
comparable character.
(3) The FDIC may also require the filing of other statements or
disclosures in addition to, or in substitution for those herein
required in any case where such statements are necessary or appropriate
for an adequate presentation of the financial condition of any person
whose financial statements are required, or disclosure about which is
otherwise necessary for the protection of investors.
By Order of the Board of Directors.
Dated at Washington, DC this 17th day of June, 1996.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 96-16256 Filed 6-27-96; 8:45 am]
BILLING CODE 6714-01-P
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