[Federal Register: October 6, 2004 (Volume 69, Number 193)]
[Rules and Regulations]
[Page 59780-59788]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc04-6]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 335
RIN 3064-AC79
Securities of Nonmember Insured Banks
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The FDIC is adopting a final rule, unchanged from an interim
final rule published on April 12, 2004 in the Federal Register (see 69
FR 19085), which confirms amendments to its securities disclosure
regulations applicable to banks with securities registered under
section 12 of the Securities Exchange Act of 1934 (Exchange Act). These
amendments implemented the requirements of the Exchange Act, as amended
by the Sarbanes-Oxley Act of 2002, which mandates electronic filing of
reports related to beneficial ownership of securities by the directors,
executive officers, and principal shareholders of public companies.
Prior to issuance of the interim final rule, the FDIC's securities
disclosure regulations prohibited electronically transmitted filings or
submissions of materials in electronic format to the FDIC. The amended
rules provide an exception to this prohibition, requiring
electronically transmitted filings of beneficial ownership reports by
bank directors, officers, and principal shareholders to disclose
securities transactions and ownership. Related technical or procedural
provisions were also amended as appropriate.
DATES: These amendments are effective on October 6, 2004.
FOR FURTHER INFORMATION CONTACT: Dennis Chapman, Senior Staff
Accountant, Division of Supervision and Consumer Protection, (202) 898-
8922; Mary Frank, Senior Financial Analyst, Division of Supervision and
Consumer Protection, (202) 898-8903; or Carl J. Gold, Counsel, Legal
Division, (202) 898-8702, Federal Deposit Insurance Corporation, 550
17th Street, NW., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background and Authority for This Final Rule
a. Appropriate Federal Banking Agency Authority Under the Exchange Act
Section 12(i) of the Securities Exchange Act of 1934 as amended (15
U.S.C. 78l(i)) authorizes the Federal banking agencies (the FDIC, the
Board of Governors of the Federal Reserve System (FRB), the Office of
the Comptroller of the Currency (OCC), and the Office of Thrift
Supervision (OTS)) to enforce sections 10A(m) (standards relating to
audit committees), 12 (securities registration), 13 (periodic
reporting), 14(a) (proxies and proxy solicitation), 14(c) (information
statements), 14(d) (tender offers), 14(f) (arrangements for changes in
directors), and 16 (beneficial ownership and reporting) of the Exchange
Act, and sections 302 (corporate responsibility for financial reports),
303 (improper influence on conduct of audits), 304 (forfeiture of
certain bonuses and profits), 306 (insider trades during pension
blackout periods), 401(b) (disclosure of pro forma financial
information), 404 (management assessment of internal controls), 406
(code of ethics for senior financial officers), and 407 (disclosure of
audit committee financial expert) of the Sarbanes-Oxley Act of 2002, in
regard to the depository institutions for which each Federal banking
agency is, respectively, the primary federal supervisor. The Exchange
Act seeks to protect investors by requiring accurate, reliable, and
timely corporate securities disclosures.
The FDIC is authorized, in administering the above-listed statutory
provisions, to promulgate 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
(collectively referred to as ``state nonmember banks''). These
regulations must be substantially similar to the regulations of the
Securities and Exchange Commission (SEC) under the listed sections of
the Exchange Act and the Sarbanes-Oxley Act, unless the FDIC publishes
its reasons for deviating from the SEC's rules.
b. Section 16 of the Exchange Act
Section 16 of the Exchange Act applies to every person who is the
[[Page 59781]]
beneficial owner of more than 10 percent of a class of equity
securities registered under section 12 of the Exchange Act and to each
officer and director of the issuer of the security (collectively,
``reporting persons,'' ``insiders,'' or ``filers''). Upon becoming a
reporting person, or upon the section 12 registration of that class of
securities, section 16(a) requires a reporting person to file an
initial report with the SEC (or in the case of an insured depository
institution, its appropriate Federal banking agency) disclosing the
amount of his or her beneficial ownership of all equity securities of
the issuer. To keep this information current, section 16(a) also
requires reporting persons to report changes in their beneficial
ownership. Prior to the Sarbanes-Oxley Act, insiders of state nonmember
banks with a class of equity securities registered under section 12 of
the Exchange Act filed these beneficial ownership reports on paper. In
the case of insiders connected to state nonmember banks, reports were
filed using FDIC Forms F-7, F-8, and F-8A.
c. Sarbanes-Oxley Act Amendments to Section 16
As amended by section 403 of the Sarbanes-Oxley Act of 2002, Public
Law 107-204 (July 30, 2002), section 16(a) of the Exchange Act (15
U.S.C. 78p(a)) requires electronic submission of certain beneficial
ownership reports submitted on or after July 30, 2003. The SEC or,
respectively, the appropriate Federal banking agency, is required to
make those filings available to the public on the Internet.
Institutions with Web sites are required to post their insiders' change
in beneficial ownership reports on their Internet Web sites. In
addition, section 16, as amended by Sarbanes-Oxley, requires filing of
beneficial ownership reports before the end of the second business day
following the day on which the subject transaction was executed
(effective for transactions on or after August 29, 2002).
II. Development and Initiation of Electronic Filing System for
Beneficial Ownership Reports
On August 27, 2002, the SEC adopted rule amendments to implement
the accelerated filing deadline for beneficial ownership reports [see
SEC Release No. 34-46421 (Sept. 3, 2002) [67 FR 56462]]. These
amendments have, since their adoption, been applicable to insiders of
state nonmember banks in accordance with section 335.601 of the FDIC
rules. Previously, beneficial ownership reports filed by insiders of
state nonmember banks were filed with the FDIC within 10 days from the
end of the month of the transaction. On May 7, 2003, the SEC issued a
final rule implementing the electronic submission requirements for
beneficial ownership reports as required by section 16 of the Exchange
Act as amended [SEC Release No. 34-47809 (May 13, 2003) [68 FR 25788]].
On July 30, 2003, the FDIC, FRB, and OCC established an interagency
electronic filing system for these beneficial ownership reports, hosted
on the FDIC's web site. See FIL-60-2003, Federal Banking Agencies
Announce New Interagency Electronic Filing System for Beneficial
Ownership Reports (July 28, 2003) [http://www.fdic.gov/news/news/financial/2003/fil0360.html
]. The OTS joined this filing system on
October 27, 2003. See OTS 03-36, Office of Thrift Supervision Joins the
FDIC's Interagency Electronic Filing System for Beneficial Ownership
Reports (October 30, 2003) [http://www.ots.treas.gov/docs/7/77336.html
]. The filing of beneficial ownership reports using the
electronic interagency filing system was authorized for insiders of
state nonmember banks beginning July 30, 2003, to provide an initial
period to test the efficacy of the system.
III. Interim Final Rule and Request for Comments
On April 12, 2004, the FDIC published in the Federal Register (69
FR 19085) an interim final rule which, consistent with Sarbanes-Oxley,
provided an exception to a prohibition in part 335 of the FDIC's rules
on electronic filing of required reports. Effective June 11, 2004, the
rule required the electronic transmission of beneficial ownership
reports by bank directors, officers, and principal shareholders to
disclose securities transactions and ownership. The interim final rule
also made certain technical or procedural amendments to part 335. The
FDIC invited comment on the interim final rule, with comments due by
June 11, 2004. The FDIC specifically invited comment on whether the
FDIC's rules should include a provision like one in the SEC's rules for
its EDGAR system that protects an electronic filer from the liability
and anti-fraud provisions of the federal securities laws with respect
to an error or omission in an electronic filing resulting solely from
electronic transmission errors beyond the control of the filer, where
the filer corrects the error or omission by the filing of an amendment
in electronic format as soon as reasonably practicable after the
electronic filer becomes aware of the error or omission.
One comment was filed on the interim final rule. The commenter, a
trade association for insured depository institutions, stated that
persons filing beneficial ownership reports electronically with the
FDIC should be protected from liability to the same extent as filers
with the SEC. However, the commenter believed it is unclear whether the
FDIC's authority under Section 12(i) of the Exchange Act is sufficient
to incorporate the protection provided by the SEC. Therefore, the
commenter argued, the FDIC should include in its regulations specific
language to this effect.
IV. Final Rule
a. Effect of Sarbanes-Oxley Act
The FDIC's securities disclosure regulations, which contain
registration and reporting requirements applicable to state nonmember
banks with securities registered under section 12 of the Exchange Act
(registered banks), are contained in 12 CFR part 335. Before the
effective date of section 403 of the Sarbanes-Oxley Act, part 335 of
the FDIC rules prohibited any electronically transmitted filings or
submissions of materials in electronic format to the FDIC. In regard to
the filing of beneficial ownership reports, that prohibition was
superseded by section 403 of the Sarbanes-Oxley Act of 2002, which
amended section 16 of the Exchange Act.
b. Electronic Filing Requirements
As amended, 12 CFR part 335 makes clear that, except in limited
circumstances described below, beneficial ownership reports by state
nonmember bank insiders are to be filed electronically with the FDIC,
consistent with timeframes provided in section 16 of the Exchange Act
and SEC regulations. Mandated electronic filing benefits members of the
investing public and the financial community by making information
contained in the filings available to them immediately after receipt by
the FDIC. Electronically filed information concerning insiders'
transactions in registered bank equity securities will be publicly
accessible substantially sooner and more readily than before. The
electronic format of the filed information facilitates research and
data analysis by investors and the public. The accelerated filing
requirements of section 16(a) of the Exchange Act that took effect on
August 29, 2002, also make electronic filing of beneficial ownership
reports more useful to the public. Finally, the FDIC believes that
investors want electronic access to these forms, that reports of
insiders' transactions in equity securities of registered banks provide
[[Page 59782]]
useful information as to management's views of the bank's performance
or prospects, and that more timely and transparent access to reports
will be useful to investors.
As required by section 12(i) of the Exchange Act, the amended 12
CFR part 335 is substantially similar to the Exchange Act regulations
of the SEC.\1\ Should a reason for deviating from SEC regulations
become apparent in the future, the FDIC will consider amending its
rules. The FDIC has adopted other technical provisions which address
the forms on which beneficial ownership reports are filed. Also, to
improve consistency with SEC requirements, the FDIC has revised the
names of its existing beneficial ownership report Forms F-7, F-8 and F-
8A. These Forms have been renamed as FDIC Forms 3, 4 and 5,
respectively.
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\1\ The FDIC's rules, at 12 CFR 335.101(b), provide that part
335 generally incorporates the SEC's rules issued under Section 12,
13, 14, and 16 of the Exchange Act.
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c. Hardship Exemption
As discussed, 12 CFR part 335 as amended requires all beneficial
ownership reports to be electronically submitted on the FDIC's
interagency Beneficial Ownership Filings system. If all or part of a
filing cannot be made electronically without undue burden or expense, a
reporting person may apply for a continuing hardship exemption under
the new section 12 CFR 335.801(b)(6).
A filer may apply in writing for a continuing hardship exemption if
all or part of a filing or group of filings otherwise to be filed in
electronic format cannot be so filed without undue burden or expense.
Such written application must be made at least ten business days prior
to the required due date of the filing(s) or the proposed filing date,
as appropriate, or within such shorter period as may be permitted by
the FDIC. The written application for the exemption must include the
following information:
(1) The reason(s) that the necessary hardware and software are not
available without unreasonable burden and expense;
(2) The burden and expense involved to employ alternative means to
make the electronic submission; and/or
(3) The reasons for not submitting electronically the document or
group of documents, as well as justification for the requested time
period for the exemption.
If the FDIC determines that the grant of the exemption is
appropriate and consistent with the public interest and the protection
of investors, it will so notify the applicant. Upon such notification
the filer must submit the document for which the exemption is granted
in paper format on the required due date specified in the applicable
form, rule, or regulation, or the proposed filing date, as appropriate.
Additional provisions applicable to the continuing hardship exemption
and detailed procedures for seeking the exemption are set forth in the
text of the amended regulation.
d. Filing Date Adjustment
Instead of pursuing a hardship exemption, an electronic filer may
request a filing date adjustment under this rule where the filer
attempts in good faith to file a document with the FDIC in a timely
manner but the filing is delayed due to technical difficulties beyond
the filer's control. In those instances, the filer may request an
adjustment of the document's filing date. The FDIC may grant the
request if it appears that the adjustment is appropriate and consistent
with the public interest and the protection of investors.
e. Potential Liability in Case of Transmission Errors
The SEC's rules governing electronic filings provide that an
electronic filer ``shall not be subject to the liability and anti-fraud
provisions of the federal securities laws with respect to an error or
omission in an electronic filing resulting solely from electronic
transmission errors beyond the control of the filer, where the filer
corrects the error or omission by the filing of an amendment in
electronic format as soon as reasonably practicable after the
electronic filer becomes aware of the error or omission.'' 17 CFR
232.103. Although FDIC received a comment that it should include
specific language to this effect in Part 335, after further
consideration the FDIC does not believe such language is necessary. As
stated in the preamble to the interim final rule, the FDIC believes
that the SEC's regulation presents a reasonable approach to
transmission errors and that it applies to electronic filings made with
the FDIC as well. See 12 CFR 335.101(b). In circumstances where there
has been a filing error or omission due solely to an electronic
transmission error beyond the filer's control, the FDIC will not cite a
violation of part 335 if the error or omission is corrected as soon as
reasonably practicable.
V. Regulatory Analysis and Procedure
a. Administrative Procedure Act (APA)
As noted in publishing the interim final rule, under the
Administrative Procedure Act, 5 U.S.C. 553(b), the FDIC found good
cause to issue the interim final rule without first seeking public
comment. Section 553(b) of the APA does not apply to rules of agency
organization, procedure, or practice, or when the agency for good cause
finds that notice and public comment on the rules being promulgated are
impracticable or unnecessary. As discussed in the preamble to the
interim final rule, the FDIC confirms its finding that this is a
procedural rule, and that, in addition, there is good cause to issue
the rule before providing an opportunity for public comment. Also, as
discussed above and in the preamble to the interim final rule, the
Sarbanes-Oxley Act mandates that certain beneficial ownership reports
be filed electronically. Therefore, the current outright prohibition in
12 CFR part 335 on electronic filing is obsolete. Also, as noted, the
SEC has made electronic filing mandatory and the Exchange Act requires
that the FDIC issue regulations substantially similar to those of the
SEC or publish its reasons for not doing so. Therefore, prior public
comment on whether to continue to prohibit the electronic filing of
these reports was impracticable and unnecessary. Nonetheless, the FDIC
solicited public comment and has considered the comment that was filed.
Further, as authorized by section 553(d) of the APA, the FDIC finds
that there is good cause for this final rule to take effect immediately
upon publication in the Federal Register. The interim final rule became
effective on June 11, 2004, and insured state nonmember banks have had
approximately one year since the establishment of the FDIC's electronic
filing system to gain experience in filing these reports
electronically. No purpose would be served by delaying the rule's
effective date.
b. Paperwork Reduction Act
Reports of beneficial ownership are considered to be a collection
of information under the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.) The FDIC has previously obtained Office of Management and Budget
(OMB) approval of this collection of information under control number
3064-0030. OMB has reviewed and approved the collection as revised to
take into account electronic filing. It is estimated that there will be
1,800
[[Page 59783]]
responses annually, cumulatively resulting in 1,100 burden hours.
c. Regulatory Flexibility Act
A regulatory flexibility analysis is required only when the agency
must publish a notice of proposed rulemaking (5 U.S.C. 603, 604). As
already noted, the FDIC has determined that a notice of proposed
rulemaking is not required. Accordingly, no regulatory flexibility
analysis is required.
d. Small Business Regulatory Flexibility Enforcement Fairness Act
Section 804 of the Small Business Regulatory Flexibility
Enforcement Fairness Act (``SBREFA''), 5 U.S.C. 801 et al., defines
``rule'' to exclude any rule of agency organization, procedure, or
practice that does not substantially affect the rights or obligations
of non-agency parties. The amendments to part 335 are technical and
ministerial applications of the statute and affect only procedural
matters. Therefore, the rule is not covered by covered by SBREFA and is
not being reported to Congress.
List of Subjects in 12 CFR Part 335
Accounting, Banks, Banking, Confidential business information,
Reporting and recordkeeping requirements, Securities.
0
For the reasons set forth in the preamble, part 335 of chapter III of
title 12 of the Code of Federal Regulations is amended to read as
follows:
PART 335--SECURITIES OF NONMEMBER INSURED BANKS
0
1. The authority citation for part 335 continues to read as follows:
Authority: 15 U.S.C. 78l(i).
0
2. Section 335.101 is amended by revising the second sentence of
paragraph (a) to read as follows:
Sec. 335.101 Scope of part, authority and OMB control number.
(a) * * * 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 10A(m), 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 78(p)), and sections 302, 303, 304, 306,
401(b), 404, 406, and 407 of the Sarbanes-Oxley Act of 2002 (15 U.S.C.
7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265) regarding nonmember
banks with one or more classes of securities subject to the
registration provisions of sections 12(b) and 12(g) of the Exchange
Act.
* * * * *
0
3. Section 335.111 is amended by revising the sixth sentence to read as
follows:
Sec. 335.111 Forms and schedules.
* * * Forms 3 (Sec. 335.611), 4 (Sec. 335.612), and 5 (Sec.
335.613) are FDIC forms which are issued under section 16 of the
Exchange Act and can be obtained from the Accounting and Securities
Disclosure Section, Division of Supervision and Consumer Protection,
Federal Deposit Insurance Corporation, 550 17th Street NW., Washington,
DC 20429. * * *
0
4. Section 335.601 is amended to read as follows:
Sec. 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(1), except that the forms described in
Sec. 335.611 (FDIC Form 3), Sec. 335.612 (FDIC Form 4), and Sec.
335.613 (FDIC Form 5) shall be used in lieu of SEC Form 3 (17 CFR
249.103), Form 4 (17 CFR 249.104), and Form 5 (17 CFR 249.105),
respectively. Copies of FDIC Forms 3, 4, 5 and the instructions thereto
can be obtained from the Accounting and Securities Disclosure Section,
Division of Supervision and Consumer Protection, Federal Deposit
Insurance Corporation, 550 17th Street NW., Washington, DC 20429.
0
5. Section 335.611 is amended by revising the title to read as follows:
Sec. 335.611 Initial statement of beneficial ownership of securities
(Form 3).
* * * * *
0
6. Section 335.612 is amended by revising the title to read as follows:
Sec. 335.612 Statement of changes in beneficial ownership of
securities (Form 4).
* * * * *
0
7. Section 335.613 is amended by revising the title to read as follows:
Sec. 335.613 Annual statement of beneficial ownership of securities
(Form 5).
* * * * *
0
8. Section 335.701 is amended by revising paragraph (a) and (b) to read
as follows:
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, DC Official filings made at
the FDIC's office in Washington, DC should be addressed as follows:
Attention: Accounting and Securities Disclosure Section, Division of
Supervision and Consumer Protection, Federal Deposit Insurance
Corporation, 550 17th Street NW., Washington, DC 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 designated FDIC office
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, Accounting and Securities Disclosure Section, Division of
Supervision and Consumer Protection, 550 17th Street, NW., Washington,
DC. Beneficial ownership report forms that are electronically submitted
to the FDIC through the interagency Beneficial Ownership Filings system
will be made available on the FDIC's web site (http://www.fdic.gov).
* * * * *
0
9. Section 335.801 is amended by revising paragraph (b) to read as
follows:
Sec. 335.801 Inapplicable SEC regulations; FDIC substituted
regulations; additional information.
* * * * *
(b) Electronic filings. (1) The FDIC does not participate in the
SEC's EDGAR (Electronic Data Gathering Analysis and Retrieval)
electronic filing program (17 CFR part 232). The FDIC does not permit
electronically transmitted filings or submissions of materials in
electronic format to the FDIC, with the exception of beneficial
ownership report filings on FDIC Forms 3, 4 and 5.
(2) All reporting persons must file beneficial ownership report
Forms 3, 4 and 5, including amendments and exhibits thereto, in
electronic format using the Internet based, interagency Beneficial
Ownership Filings system, which is accessible through the FDICconnect
Business Center, except that a reporting person that has obtained a
continuing hardship exemption under these rules may file the forms with
the FDIC in paper format. For information and answers to questions
regarding beneficial ownership and the
[[Page 59784]]
completion and filing of the forms, please contact the FDIC Accounting
and Securities Disclosure Section in Washington DC For information and
answers to technical questions or problems relating to the use of
FDICconnect, contact the FDICconnect Project Team toll-free at 877-275-
3342 or by mail at 3501 North Fairfax Drive, Arlington, VA 22226.
(3) Electronic filings of FDIC beneficial ownership report Forms 3,
4, and 5 must be submitted to the FDIC through the interagency
Beneficial Ownership Filings system. Beneficial ownership reports and
any amendments are deemed filed with the FDIC upon electronic receipt
on business days from 8 a.m. through 10 p.m., Eastern Standard Time or
Eastern Daylight Saving Time, whichever is currently in effect (Eastern
Time). Business days include each day, except Saturdays, Sundays and
Federal holidays. All filings submitted electronically to the FDIC
commencing after 10 p.m. Eastern Time on business days shall be deemed
filed as of 8 a.m. on the following business day. All filings submitted
electronically to the FDIC on non-business days shall be deemed filed
as of 8 a.m. on the following business day.
(4) Adjustment of the filing date. If an electronic filer in good
faith attempts to file a beneficial ownership report with the FDIC in a
timely manner but the filing is delayed due to technical difficulties
beyond the electronic filer's control, the electronic filer may request
an adjustment of the filing date of such submission. The FDIC may grant
the request if it appears that such adjustment is appropriate and
consistent with the public interest and the protection of investors.
(5) Exhibits. (i) Exhibits to an electronic filing that have not
previously been filed with the FDIC shall be filed in electronic
format, absent a hardship exemption.
(ii) Previously filed exhibits, whether in paper or electronic
format, may be incorporated by reference into an electronic filing to
the extent permitted by applicable SEC rules under the Exchange Act. An
electronic filer may, at its option, restate in electronic format an
exhibit incorporated by reference that originally was filed in paper
format.
(iii) Any document filed in paper format in violation of mandated
electronic filing requirements shall not be incorporated by reference
into an electronic filing.
(6) Continuing Hardship Exemption. The FDIC will not accept in
paper format any beneficial ownership report filing required to be
submitted electronically under this part unless the filer satisfies the
requirements for a continuing hardship exemption:
(i) A filer may apply in writing for a continuing hardship
exemption if all or part of a filing or group of filings otherwise to
be filed in electronic format cannot be so filed without undue burden
or expense. Such written application shall be made at least ten
business days prior to the required due date of the filing(s) or the
proposed filing date, as appropriate, or within such shorter period as
may be permitted. The written application shall be sent to the
Accounting and Securities Disclosure Section, Division of Supervision
and Consumer Protection, Federal Deposit Insurance Corporation, 550
17th Street NW., Washington, DC 20429, and shall contain the
information set forth in paragraph (b)(6)(ii) of this section.
(A) The application shall not be deemed granted until the applicant
is notified by the FDIC.
(B) If the FDIC denies the application for a continuing hardship
exemption, the filer shall file the required document in electronic
format on the required due date or the proposed filing date or such
other date as may be permitted.
(C) If the FDIC determines that the grant of the exemption is
appropriate and consistent with the public interest and the protection
of investors and so notifies the applicant, the filer shall follow the
procedures set forth in paragraph (b)(6)(iii) of this section.
(ii) The request for the continuing hardship exemption shall
include, but not be limited to, the following:
(A) The reason(s) that the necessary hardware and software are not
available without unreasonable burden and expense;
(B) The burden and expense involved to employ alternative means to
make the electronic submission; and/or
(C) The reasons for not submitting electronically the document or
group of documents, as well as justification for the requested time
period for the exemption.
(iii) If the request for a continuing hardship exemption is
granted, the electronic filer shall submit the document or group of
documents for which the exemption is granted in paper format on the
required due date specified in the applicable form, rule or regulation,
or the proposed filing date, as appropriate. The paper format
document(s) shall have placed at the top of page 1, or at the top of an
attached cover page, a legend in capital letters:
IN ACCORDANCE WITH 12 CFR 335.801(b), THIS (SPECIFY DOCUMENT) IS BEING
FILED IN PAPER PURSUANT TO A CONTINUING HARDSHIP EXEMPTION.
(iv) Where a continuing hardship exemption is granted with respect
to an exhibit only, the paper format exhibit shall be filed with the
FDIC under cover of SEC Form SE (17 CFR 249.444). Form SE shall be
filed as a paper cover sheet to all exhibits to beneficial ownership
reports submitted to the FDIC in paper form pursuant to a hardship
exemption.
(v) Form SE shall be submitted along with all exhibits filed in
paper form pursuant to a hardship exemption. Form SE may be filed up to
six business days prior to, or on the date of filing of, the electronic
form to which it relates but shall not be filed after such filing date.
If a paper exhibit is submitted in this manner, requirements that the
exhibit be filed with, provided with, or accompany the electronic
filing shall be satisfied. Any requirements as to delivery or
furnishing the information to persons other than the FDIC shall not be
affected by this section.
(7) Signatures. (i) Required signatures to, or within, any
electronic submission must be in typed form. When used in connection
with an electronic filing, the term ``signature'' means an electronic
entry or other form of computer data compilation of any letters or
series of letters or characters comprising a name, executed, adopted or
authorized as a signature.
(ii) Each signatory to an electronic filing shall manually sign a
signature page or other document authenticating, acknowledging or
otherwise adopting his or her signature that appears in typed form
within the electronic filing. Such document shall be executed before or
at the time the electronic filing is made and shall be retained by the
filer for a period of five years. Upon request, an electronic filer
shall furnish to the FDIC a copy of any or all documents retained
pursuant to this section.
(iii) Where the FDIC's rules require a filer to furnish to a
national securities exchange, a national securities association, or a
bank, paper copies of a document filed with the FDIC in electronic
format, signatures to such paper copies may be in typed form.
* * * * *
Note-- The following forms will not appear in the Code of
Federal Regulations.
0
10. Amend Form F-7 (referenced in Sec. 335.111 and Sec. 335.611) by:
0
a. Revising General Instruction 2(a);
0
b. Revising General Instruction 3(a);
0
c. Adding a note following General Instruction 3;
0
d. Revising General Instruction 5(b)(v);
[[Page 59785]]
0
e. Revising General Instruction 6;
0
f. Adding a new General Instruction 8;
0
g. Revising the short title of the Initial Statement of Beneficial
Ownership of Securities from Form F-7 to Form 3 in the form heading;
0
h. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the
information preceding Table I as Items 3, 4, 5 and 6 to the information
preceding Table I; and
0
i. Revising newly redesignated Item 5 to the information preceding
Table I.
The revisions and additions read as follows:
Form 3 Initial Statement of Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *
2. When Form Must Be Filed
(a) This form must be filed within 10 days after the event by which
the person becomes a reporting person (i.e., officer, director, 10
percent holder or other person). This form and any amendment is deemed
filed with the appropriate Federal Banking Agency upon electronic
receipt on business days during the hours of 8 a.m. until 10 p.m.
Eastern Standard Time or Eastern Daylight Saving Time, whichever is
currently in effect. A form received after these business hours will be
deemed filed at 8 a.m. on the following business day. If this form is
submitted through FDICconnect on a non-business day, it will be deemed
filed at 8 a.m. on the following business day. Business days include
all weekdays that are not Federal holidays. A paper form submitted by a
reporting person that has obtained a hardship exemption under FDIC
rules will be deemed filed with the FDIC on the date it is received by
the FDIC. If this form is required to be filed on an exchange, this
form and any amendment is deemed filed with the exchange on the date it
is received by the exchange.
* * * * *
3. Where Form Must Be Filed
(a) A reporting person must file Form 3 in electronic format using
the secure, Internet-based, FDICconnect Business Center to access the
interagency Beneficial Ownership Filings system, except that a filing
person that has obtained a hardship exemption under applicable FDIC
rules (see 12 CFR 335.801(b)) may file the form in paper form. For
information and answers to questions regarding beneficial ownership and
the completion and filing of the forms please contact the FDIC Division
of Supervision and Consumer Protection, Accounting and Securities
Disclosure Section, 550 17th Street NW., Washington, DC 20429. For
technical questions or problems relating to the use of FDICconnect or
Designated Coordinator registration, contact FDICconnect toll-free at
877-275-3342 or via e-mail at FDICconnect@fdic.gov.
* * * * *
Note: If filing pursuant to a hardship exemption under FDIC
rules, file three copies of this form or any amendment, at least one
of which is signed, with the FDIC in accordance with applicable
rules. (Acknowledgement of receipt by the agency may be obtained by
enclosing a self-addressed stamped postcard or envelope identifying
the form or amendment filed.)
* * * * *
5. Holdings Required To Be Reported
* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest)
* * * * *
(v) Where more than one person beneficially owns the same equity
securities, such owners may file Form 3 individually or jointly. Joint
and group filings may be made by any designated beneficial owner.
Holdings of securities owned separately by any joint or group filer are
permitted to be included in the joint filing. Indicate the name and
address of the designated reporting person in Item 1 of Form 3 and
attach a list of the names and addresses of each other reporting
person. Joint and group filings must include all required information
for each beneficial owner, and such filings must be signed by each
beneficial owner, or on behalf of such owner by an authorized person.
Use the Filer Information screen in the interagency Beneficial
Ownership Filings system to submit additional joint or group filers'
names and related filing information required by this form.
If this form is being filed in paper form pursuant to a hardship
exemption and the space provided for signatures is insufficient, attach
a signature page. If this form is being filed in paper form, submit any
attached listing of names or signatures on another Form 3, copy of Form
3 or separate page of 8\1/2\ by 11 inch white paper, indicate the
number of pages comprising the report (form plus attachments) at the
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include
the name of the designated filer and information required by Items 2
and 3 of the form on the attachment.
See SEC Rule 16a-3(i) regarding signatures.
* * * * *
6. Additional Information
(a) If space provided in the line items on this Form 3 is
insufficient, identify and enter additional information and footnotes
under Explanation of Responses.
(b) If the space provided in the line items on the paper Form 3 or
space provided for additional comments is insufficient, attach another
Form 3, copy of Form 3 or separate 8\1/2\ by 11 inch white paper to
Form 3, completed as appropriate to include the additional comments.
Each attached page must include information required in Items 1, 2 and
3 of the form. The number of pages comprising the report (form plus
attachments) shall be indicated at the bottom of each report page
(e.g., 1 of 3, 2 of 3, 3 of 3).
(c) If one or more exhibits are included with the form, provide a
reference to such exhibit(s) under Explanation of Responses. If the
exhibit is being filed in paper form pursuant to a hardship exemption
under applicable FDIC rules, place the designation ``P'' (paper) next
to the name of the exhibit in the exhibit reference.
(d) If additional information is not reported in this manner, it
will be assumed that no additional information was provided.
* * * * *
8. Amendments
(a) If this form is filed as an amendment in order to add one or
more lines of ownership information to Table I or Table II of the form
being amended, provide each line being added, together with one or more
footnotes, under Explanation of Responses as necessary to explain the
addition of the line or lines. Do not repeat lines of ownership
information that were disclosed in the original form and are not being
amended.
(b) If this form is filed as an amendment in order to amend one or
more lines of ownership information that already were disclosed in
Table I or Table II of the form being amended, provide the complete
line or lines being amended, as amended, together with notes under
Explanation of Responses as necessary to explain the amendment of the
line or lines. Do not repeat lines of ownership information that were
disclosed in the original form and are not being amended.
(c) If this form is filed as an amendment for any other purpose
other than or in addition to the purpose described in items (a) or (b)
of this General Instruction 8, provide one or more notes under
Explanation of
[[Page 59786]]
Responses, as necessary, to explain the amendment.
* * * * *
Form 3 Initial Statement of Beneficial Ownership of Securities
* * * * *
5. If Amendment, Date Original Filed
(Month/Day/Year)
* * * * *
0
11. Amend Form F-8 (referenced in Sec. 335.111 and Sec. 335.612) by:
0
a. Revising General Instruction 1(a);
0
b. Revising General Instruction 2(a);
0
c. Adding a note following General Instruction 2;
0
d. Revising General Instruction 4(b)(v);
0
e. Revising General Instruction 6;
0
f. Adding a new General Instruction 9;
0
g. Revising the short title of the Statement of Changes in Beneficial
Ownership of Securities from Form F-8 to Form 4 in the form heading;
0
h. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the
information preceding Table I as Items 3, 4, 5 and 6 to the information
preceding Table I; and
0
i. Revising newly redesignated Items 3 and 4 to the information
preceding Table I.
The revisions and additions read as follows:
Form 4 Statement of Changes in Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *
1. When Form Must Be Filed
(a) This form must be filed on or before the end of the second
business day following the day on which a transaction resulting in a
change in beneficial ownership has been executed (See SEC Rule 16a-
1(a)(2) and Instruction 4 regarding the meaning of ``beneficial
owner,'' and SEC Rule 16a-3(g) regarding determination of the date of
execution for specified transactions). This form and any amendment is
deemed filed with the FDIC upon electronic receipt on business days
during the hours of 8 a.m. until 10 p.m. Eastern Standard Time or
Eastern Daylight Saving Time, whichever is currently in effect. A form
received after these business hours will be deemed filed at 8 a.m. on
the following business day. If this form is submitted through
FDICconnect on a non-business day, it will be deemed filed at 8 a.m. on
the following business day. Business days include all weekdays that are
not Federal holidays. A paper form submitted by a reporting person that
has obtained a hardship exemption under applicable FDIC rules will be
deemed filed with the FDIC on the date it is received by the FDIC. If
this form is required to be filed on an exchange, this form and any
amendment is deemed filed with the exchange on the date it is received
by the exchange.
* * * * *
2. Where Form Must Be Filed
(a) A reporting person must file Form 4 in electronic format using
the secure, Internet-based, FDICconnect Business Center to access the
interagency Beneficial Ownership Filings system, except that a filing
person that has obtained a hardship exemption under applicable FDIC
rules (see 12 CFR 335.801(b)) may file the form in paper form. For
information and answers to questions regarding beneficial ownership and
the completion and filing of the forms please contact the FDIC Division
of Supervision and Consumer Protection, Accounting and Securities
Disclosure Section, 550 17th Street NW., Washington, DC 20429. For
technical questions or problems relating to the use of FDICconnect or
Designated Coordinator registration, contact FDICconnect toll-free at
877-275-3342 or via e-mail at FDICconnect@fdic.gov.
* * * * *
Note: If filing pursuant to a hardship exemption under FDIC
rules, file three copies of this Form or any amendment, at least one
of which is signed, with the FDIC in accordance with applicable
rules. (Acknowledgement of receipt by the agency may be obtained by
enclosing a self-addressed stamped postcard or envelope identifying
the Form or amendment filed.)
* * * * *
4. Transactions and Holdings Required To Be Reported
* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest)
* * * * *
(v) Where more than one beneficial owner of the same equity
securities must report transactions on Form 4, such owners may file
Form 4 individually or jointly. Joint and group filings may be made by
any designated beneficial owner. Transactions with respect to
securities owned separately by any joint or group filer are permitted
to be included in the joint filing. Indicate the name and address of
the designated reporting person in Item 1 of Form 4 and attach a list
of the names and addresses of each other reporting person. Joint and
group filings must include all the required information for each
beneficial owner, and such filings must be signed by each beneficial
owner, or on behalf of such owner by an authorized person. Use the
Filer Information screen in the interagency Beneficial Ownership
Filings system to submit additional joint or group filers' names and
related filing information required by this form.
If this form is being filed in paper form pursuant to a hardship
exemption and the space provided for signatures is insufficient, attach
a signature page. If this form is being filed in paper form, submit any
attached listing of names or signatures on another Form 4, copy of Form
4 or separate page of 8\1/2\ by 11 inch white paper, indicate the
number of pages comprising the report (form plus attachments) at the
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include
the name of the designated filer and information required by Items 2
and 3 of the form on the attachment.
See SEC Rule 16a-3(i) regarding signatures.
* * * * *
6. Additional Information
(a) If space provided in the line items on the Form 4 is
insufficient, identify and enter additional information under
Explanation of Responses.
(b) If the space provided in the line items on the paper Form 4 or
space provided for additional comments is insufficient, attach another
Form 4, copy of Form 4 or separate 8\1/2\ by 11 inch white paper to
Form 4, completed as appropriate to include the additional comments.
Each attached page must include information required in Items 1, 2 and
3 of the form. The number of pages comprising the report (form plus
attachments) shall be indicated at the bottom of each report page
(e.g., 1 of 3, 2 of 3, 3 of 3).
(c) If one or more exhibits are included with the form, provide a
reference to such exhibit(s) under Explanation of Responses. If the
exhibit is being filed in paper form pursuant to a hardship exemption
under applicable FDIC rules, place the designation ``P'' (paper) next
to the name of the exhibit in the exhibit reference.
(d) If additional information is not reported in this manner, it
will be assumed that no additional information was provided.
* * * * *
9. Amendments
(a) If this form is filed as an amendment in order to add one or
more lines of ownership information to Table I or Table II of the form
being amended, provide each line being added, together with one or more
footnotes under
[[Page 59787]]
Explanation of Responses, as necessary, to explain the addition of the
line or lines. Do not repeat lines of ownership information that were
disclosed in the original form and are not being amended.
(b) If this form is filed as an amendment in order to amend one or
more lines of ownership information that already were disclosed in
Table I or Table II of the form being amended, provide the complete
line or lines being amended, as amended, together with notes under
Explanation of Responses as necessary to explain the amendment of the
line or lines. Do not repeat lines of ownership information that were
disclosed in the original form and are not being amended.
(c) If this form is filed as an amendment for any other purpose
other than or in addition to the purpose described in items (a) or (b)
of this General Instruction 9, provide one or more notes under
Explanation of Responses, as necessary, to explain the amendment.
* * * * *
Form 4 Statement of Changes in Beneficial Ownership of Securities
* * * * *
Item 3. Date of Earliest Transaction Required to be Reported
(Month/Day/Year)
Item 4. If Amendment, Date Original Filed
(Month/Day/Year)
* * * * *
0
12. Amend Form F-8A (referenced in Sec. 335.111 and Sec. 335.613) by:
0
a. Revising General Instruction 1(a);
0
b. Revising General Instruction 2(a);
0
c. Adding a note following General Instruction 2;
0
e. Revising General Instruction 4(b)(v);
0
f. Revising General Instruction 6;
0
g. Adding a new General Instruction 9;
0
h. Revising the short title of the Annual Statement of Beneficial
Ownership of Securities from Form F-8A to Form 5 in the form heading;
0
i. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the
information preceding Table I as Items 3, 4, 5 and 6;
0
j. Revising newly redesignated Items 3 and 4 to the information
preceding Table I;
0
k. Revising the heading for columns 9 and 10 in Table II.
The revisions and additions read as follows:
Form 5 Annual Statement of Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *
1. When Form Must Be Filed
(a) This form must be filed on or before the 45th day after the end
of the bank's fiscal year in accordance with SEC Rule 16a-3(f). This
form and any amendment is deemed filed with the FDIC upon electronic
receipt on business days during the hours of 8 a.m. until 10 p.m.
Eastern Standard Time or Eastern Daylight Saving Time, whichever is
currently in effect. A form received after these business hours will be
deemed filed at 8 a.m. on the following business day. If this form is
submitted through FDICconnect on a non-business day, it will be deemed
filed at 8 a.m. on the following business day. Business days include
all weekdays that are not federal holidays. A paper form submitted by a
reporting person that has obtained a hardship exemption under
applicable FDIC rules will be deemed filed with the FDIC on the date it
is received by the FDIC. If this form is required to be filed on an
exchange, this form and any amendment is deemed filed with the exchange
on the date it is received by the exchange.
* * * * *
2. Where Form Must Be Filed
(a) A reporting person must file Form 5 in electronic format using
the secure, Internet-based, FDICconnect Business Center to access the
interagency Beneficial Ownership Filings system, except that a filing
person that has obtained a hardship exemption under applicable FDIC
rules (see 12 CFR 335.801(b)) may file the form in paper form. For
information and answers to questions regarding beneficial ownership and
the completion and filing of the forms please contact the FDIC Division
of Supervision and Consumer Protection, Accounting and Securities
Disclosure Section, 550 17th Street, NW., Washington, DC 20429. For
technical questions or problems relating to the use of FDICconnect or
Designated Coordinator registration, contact FDICconnect toll-free at
877-275-3342 or via e-mail at FDICconnect@fdic.gov.
* * * * *
Note: If filing pursuant to a hardship exemption under FDIC
rules, file three copies of this form or any amendment, at least one
of which is signed, with the FDIC in accordance with applicable
rules. (Acknowledgement of receipt by the agency may be obtained by
enclosing a self-addressed stamped postcard or envelope identifying
the form or amendment filed.)
* * * * *
4. Transactions and Holdings Required To Be Reported
* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest)
* * * * *
(v) Where more than one beneficial owner of the same equity
securities must report transactions on Form 5, such owners may file
Form 5 individually or jointly. Joint and group filings may be made by
any designated beneficial owner. Transactions with respect to
securities owned separately by any joint or group filer are permitted
to be included in the joint filing. Indicate the name and address of
the designated reporting person in Item 1 of Form 5 and attach a list
of the names and addresses of each other reporting person. Joint and
group filings must include all the required information for each
beneficial owner, and such filings must be signed by each beneficial
owner, or on behalf of such owner by an authorized person. Use the
Filer Information screen in the interagency Beneficial Ownership
Filings system to submit additional joint or group filers' names and
related filing information required by this form.
If this form is being filed in paper form pursuant to a hardship
exemption and the space provided for signatures is insufficient, attach
a signature page. If this form is being filed in paper form, submit any
attached listing of names or signatures on another Form 5, copy of Form
5 or separate page of 8\1/2\ by 11 inch white paper, indicate the
number of pages comprising the report (form plus attachments) at the
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include
the name of the designated filer and information required by Items 2
and 3 of the form on the attachment.
See SEC Rule 16a-3(i) regarding signatures.
* * * * *
6. Additional Information
(a) If space provided in the line items on the Form 5 is
insufficient, identify and enter additional information under
Explanation of Responses.
(b) If the space provided in the line items on the paper Form 5 or
space provided for additional comments is insufficient, attach another
Form 5, copy of Form 5 or separate 8\1/2\ by 11 inch white paper to
Form 5, completed as appropriate to include the additional comments.
Each attached page must include information required in Items 1, 2 and
3 of the form. The number of pages comprising the report (form plus
attachments) shall be indicated at the
[[Page 59788]]
bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3).
(c) If one or more exhibits are included on the form, provide a
reference to such exhibit(s) under Explanation of Responses. If the
exhibit is being filed in paper form pursuant to a hardship exemption
under applicable FDIC rules, place the designation ``P'' (paper) next
to the name of the exhibit in the exhibit reference.
(d) If additional information is not reported in this manner, it
will be assumed that no additional information was provided.
* * * * *
9. Amendments
(a) If this form is filed as an amendment in order to add one or
more lines of ownership information to Table I or Table II of the form
being amended, provide each line being added, together with one or more
footnotes under Explanation of Responses, as necessary, to explain the
addition of the line or lines. Do not repeat lines of ownership
information that were disclosed in the original form and are not being
amended.
(b) If this form is filed as an amendment in order to amend one or
more lines of ownership information that already were disclosed in
Table I or Table II of the form being amended, provide the complete
line or lines being amended, as amended, together with notes under
Explanation of Responses as necessary to explain the amendment of the
line or lines. Do not repeat lines of ownership information that were
disclosed in the original form and are not being amended.
(c) If this form is filed as an amendment for any other purpose
other than or in addition to the purpose described in items (a) or (b)
of this General Instruction 9, provide one or more notes under
Explanation of Responses, as necessary, to explain the amendment.
* * * * *
Form 5 Annual Statement of Changes in Beneficial Ownership of
Securities
* * * * *
3. Statement for Issuer's Fiscal Year Ended
(Month/Day/Year)
4. If Amendment, Date Original Filed
(Month/Day/Year)
* * * * *
Table II--Derivative Securities Acquired, Disposed of, or Beneficially
Owned (e.g., Puts, Calls, Warrants, Options, Convertible Securities)
* * * * *
9. Number of Derivative Securities Beneficially Owned at End of
Issuer's Fiscal Year (Instr. 4)
10. Ownership Form of Derivative Securities: Direct (D) or Indirect (I)
(Instr. 4)
* * * * *
Dated at Washington, DC, this 29th day of September, 2004.
By Order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 04-22384 Filed 10-5-04; 8:45 am]
BILLING CODE 6714-01-U
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