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8789

Rules and Regulations Federal Register


Vol. 71, No. 34

Tuesday, February 21, 2006

This section of the FEDERAL REGISTER concerning how notice is given to made to the FDIC’s responsibilities and
contains regulatory documents having general depositors when an insured depository terminology by sections 201 and 202 of
applicability and legal effect, most of which institution voluntarily terminates its the Financial Institutions Reform,
are keyed to and codified in the Code of insured status without the assumption Recovery, and Enforcement Act of
Federal Regulations, which is published under of all of its deposits by an insured 1989.1 The final rule adds a new § 307.1
50 titles pursuant to 44 U.S.C. 1510.
institution. In sum, the revisions would to describe the purpose of the Part and
The Code of Federal Regulations is sold by make the insurance termination process to indicate that the Part applies to
the Superintendent of Documents. Prices of somewhat easier for insured depository insured depository institutions as
new books are listed in the first FEDERAL institutions, and somewhat more defined in section 3(c)(2) of the Federal
REGISTER issue of each week. efficient for the FDIC. Deposit Insurance Act (12 U.S.C.
DATES: This rule will be effective on 1813(c)(2), FDI Act). The existing
March 23, 2006. §§ 307.1 and 307.2 are redesignated as
FEDERAL DEPOSIT INSURANCE §§ 307.2 and 307.3, respectively.
FOR FURTHER INFORMATION CONTACT:
CORPORATION
Donald R. Hamm, Review Examiner, III. Section 307.2—Certification of
12 CFR Part 307 Division of Supervision and Consumer Assumption of Deposit Liabilities
Protection, (202) 898–3528; Thomas
RIN 3064–AC93 Nixon, Counsel, Legal Division, (202) The current section 307.1 implements
898–8766; Federal Deposit Insurance section 8(q) of the FDI Act (12 U.S.C.
Certification of Assumption of
Corporation, 550 17th Street, NW., 1818(q)), which states:
Deposits and Notification of Changes Whenever the liabilities of an insured
Washington, DC 20429.
of Insured Status depository institution for deposits shall have
SUPPLEMENTARY INFORMATION:
AGENCY: Federal Deposit Insurance been assumed by another insured depository
I. Background institution or depository institutions,
Corporation (FDIC). whether by way of merger, consolidation, or
ACTION: Final rule. On October 14, 2005, the FDIC other statutory assumption, or pursuant to
published a notice of proposed contract
SUMMARY: The FDIC is adopting a final rulemaking concerning its Part 307 (12 (1) The insured status of the depository
rule which clarifies and simplifies the CFR) ‘‘Notification of Changes in institution whose liabilities are so assumed
procedures to be used when all of the Insured Status.’’ (70 FR 60015) The rule shall terminate on the date of receipt by the
deposit liabilities of an insured currently has two sections. Section Corporation of satisfactory evidence of such
depository institution have been 307.1 applies to situations where one or assumption;
assumed by another insured depository more insured institutions have assumed (2) The separate insurance of all deposits
institution or institutions. The final so assumed shall terminate at the end of six
the deposit liabilities of another insured
regulation would modify the current months from the date such assumption takes
institution. Section 307.2 applies to effect or, in the case of any time deposit, the
rule’s requirements by: Making clear situations where an insured institution earliest maturity date after the six-month
that an insured institution is required to seeks to terminate its insured status period * * *
file a ‘‘certification’’ when all of its without its deposit liabilities being
deposits are assumed, but no All assumptions of insured deposit
assumed. The FDIC received no
certification is required if only a portion liabilities, whether a ‘‘total’’ assumption
comments in response to the notice of
of its deposits are assumed; and of all the transferring institution’s
proposed rulemaking. The FDIC has
requiring that the transferring deposits or an assumption of only a
determined to make its October 2005
institution, or its legal successor, file the portion of its deposits (a ‘‘partial’’
proposed revision to Part 307 final. A
certification rather than the assuming assumption), by an insured institution
section-by-section analysis follows.
institution. The rule also clarifies that are subject to the Bank Merger Act and
the transferring institution’s status as an II. Revised Caption; New Section require the prior written approval of the
insured institution automatically 307.1—Scope and Purpose ‘‘responsible agency.’’ 2 The responsible
terminates upon the FDIC’s receipt of an The caption of the Part would be agency is the primary Federal regulator
accurate certification stating that: All of changed from ‘‘Notification of Changes of the assuming institution.
its deposits have been assumed by an of Insured Status’’ to ‘‘Certification of The present section 307.1 requires the
insured depository institution or Assumption of Deposits and institution assuming deposits to certify
institutions, and the legal authority of Notification of Changes of Insured to the FDIC that it has assumed the
the transferring institution to accept Status’’ to make it more descriptive of deposits. It does not specify whether a
deposits has been terminated the Part’s content and alert institutions certification is required only where a
contemporaneously with the deposit that the Part addresses deposit total deposit assumption occurs or
assumption. In such a situation, and in assumptions as well as changes in 1 Pub. L. 101–73, 103 Stat. 103.
a situation in which the FDIC has been insured status. 2 FDI Act section 18(c)(2), (12 U.S.C. 1828(c)(2)),
appointed receiver of an insured The current Part 307 does not have a reads as follows:
institution, little practical purpose scope and purpose section. In addition, No insured depository institution shall merge or
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would be served by an order terminating since Part 307 had not been revised consolidate with any other insured depository
deposit insurance, and the final rule since 1983, §§ 307.1 and 307.2 institution or, either directly or indirectly, acquire
the assets of, or assume liability to pay any deposits
provides that no such order will be continued to refer to an ‘‘insured bank’’ made in, any other insured depository institution
issued in such situations. Finally, the rather than to an ‘‘insured depository except with the prior written approval of the
rule would provide more specificity institution,’’ consistent with the changes responsible agency * * *

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8790 Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations

whether a certification is also required position than the assuming institution to a certification, of a total deposit
for a partial deposit assumption, for to know whether the transfer constitutes assumption to constitute satisfactory
example, when a single branch of an all of its deposits, thus triggering evidence of an assumption for the
institution is sold. This rule clarifies application of Part 307 and FDI Act purposes of section 8(q).
that a certification is required only section 8(q). This is particularly true in Issuance of an Order. As noted in the
when there has been a total assumption the case of an institution that transfers October 2005 notice of proposed
of deposits. No certification is required all of its deposit liabilities through rulemaking, section 8(q) can be
in the case of a partial transfer of multiple transfers to a variety of construed as automatically terminating
deposits. Clarifying that no certification assuming institutions. In such a an institution’s insured status upon the
is necessary for a partial assumption is situation, it may be difficult for the FDIC’s receipt of satisfactory evidence
consistent with the FDIC’s goal of assuming institutions to have sufficient of a total assumption. The FDIC did not
reducing regulatory burden pursuant to knowledge of key facts in order to make generally issue orders terminating the
Section 2222 of the Economic Growth certifications that make clear whether insured status of transferring
and Regulatory Paperwork Reduction the transferring institution continues to institutions before 1983 when the rule
Act of 1996 3 while obtaining sufficient hold insured deposits. In a merger or was last revised, and the current section
information for the proper consolidation there may be only one 307.1 does not discuss the issuance of
implementation of section 8(q) of the surviving entity which is the legal such orders. In most cases of total
FDI Act. successor to both the transferring and deposit assumptions, the transferring
There may be situations in which an assuming institutions. In such instances, institution’s authority to engage in
insured depository institution disposes that surviving entity would provide any banking is contemporaneously
of all of its deposits through a series of required certification. cancelled. In such a situation, an FDIC
simultaneous partial deposit Content and form of the certification. order terminating insurance has no
assumptions involving multiple Section 307.2(b) of this final rule practical effect and is unnecessary.
assuming institutions, rather than establishes the certification’s content. Accordingly, under this final rule no
through a single total deposit The requirements are similar to the order terminating an institution’s
assumption by one assuming institution. current section 307.1 but clarify certain insured status will generally be issued
An example of this would be where all issues, such as where certifications when the transferring institution’s
of the deposits of a transferring should be filed with the FDIC, and the authority to engage in banking is
institution were assumed through a need for the certification to be on the cancelled contemporaneously (i.e.,
series of branch acquisitions by different letterhead of the transferring institution generally within five business days after
assuming institutions that occurred on or its legal successor and to be signed all deposits have been assumed). The
the same day. Viewed cumulatively, by an authorized official. The rule also rule also will not require orders when
these partial assumptions would requires an institution that is deposits are transferred and assumed
amount to a total assumption of the contemporaneously relinquishing its after a default when the FDIC has been
deposits of the transferring institution authority to engage in the business of appointed as receiver of an insured
making certification necessary. In this receiving deposits to provide the date institution.
situation, this final rule would require that its authority terminated (or will The rule does provide for the issuance
that the transferring institution file a terminate) as well as the method of of an FDIC order terminating the
certification. termination (e.g., whether by the insured status of a transferring
The current section 307.1 also does surrender of its charter, the cancellation institution in the relatively limited
not distinguish between a deposit of its charter or license to conduct a circumstance in which a total transfer of
assumption involving operating banking business, or otherwise). As deposit liabilities has occurred but the
institutions versus an assumption discussed below, this information will transferring institution’s charter is not
involving an institution in default and be used by the FDIC to evaluate the contemporaneously cancelled (the
in FDIC receivership. The FDIC plays an need to issue an order terminating proposed rule had referred to this as an
integral role in the transfer and insurance. To assist the industry with order confirming the termination of
assumption of deposit liabilities when it compliance, the rule provides a insurance). Absent the entry of an order
is appointed as receiver for an insured template (Appendix A) that may be used terminating insured status, an
depository institution in default, and to satisfy the section 307.2 certification institution in such a situation might
has in its possession information requirements. attempt to resume accepting deposits
regarding the deposit transfer and Evidence of Assumption. Similar to
sometime after the assumption
assumption transaction. Section 307.2(a) the current section 307.1, section
transaction occurs. An institution might
of this final rule creates an explicit 307.2(d) of this final rule states that the
also attempt to sell its charter, which
exception from the certification receipt by the FDIC of an accurate
could allow what is in fact a new entity
requirement when the deposit liabilities certification for a total assumption as
to conduct banking operations without
are being transferred from an insured required by paragraphs (a), (b) and (c) of
FDIC review and approval.4
depository institution in default and the section 307.2 shall constitute
FDIC has been appointed as receiver. satisfactory evidence of such deposit IV. Section 307.3—Notice to Depositors
Who must make the certification. As assumption, as required by section 8(q) When Insurance Is Voluntarily
noted, the current section 307.1 requires of the FDI Act, and the insured status of Terminated and Deposits Are Not
the assuming institution to provide the transferring institution shall Assumed
certification to the FDIC. This final rule terminate on the date of the receipt of An insured depository institution that
requires the transferring institution, or the certification. The term ‘‘accurate’’ proposes to voluntarily terminate its
its legal successor (‘‘transferring has been included to indicate that a
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insured status without transferring all of


institution’’), to make the certification. materially inaccurate certification will its deposits to an FDIC-insured
Generally, an institution transferring not trigger the automatic termination of
deposit liabilities will be in a better the transferring institution’s insured 4 Such a sale would require prior approval by the
status. Section 307.2(d) allows the FDIC primary Federal regulator under the Bank Merger
3 Pub. L. 104–208, Sept. 30, 1996, 12 U.S.C. 3311. to consider other evidence, in addition Act or the Change in Bank Control Act.

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Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations 8791

institution must obtain the FDIC’s C. Small Business Regulatory § 307.2 Certification of assumption of
permission.5 The current § 307.2 Enforcement Fairness Act deposit liabilities.
requires an insured bank or insured (a) When certification is required.
branch of a foreign bank seeking to The Small Business Regulatory Whenever all of the deposit liabilities of
voluntarily terminate its insured status, Enforcement Fairness Act of 1996 an insured depository institution are
(SBREFA) (Title II, Pub. L. 104–121) assumed by one or more insured
but whose deposits will not be assumed
provides generally for agencies to report depository institutions by merger,
by another insured depository
rules to Congress and the General consolidation, other statutory
institution, to provide notice to its
Accounting Office (GAO) for review. assumption, or by contract, the
depositors of the date its insured status
The reporting requirement is triggered transferring insured depository
will terminate. A copy of this notice when a Federal agency issues a final institution, or its legal successor, shall
must be provided to and approved by rule. The FDIC will file the appropriate provide an accurate written certification
the appropriate Regional Director of the reports with Congress and the GAO as to the FDIC that its deposit liabilities
Division of Supervision and Consumer required by SBREFA. The Office of have been assumed. No certification
Protection prior to the notice being Management and Budget has shall be required when deposit
distributed to the institution’s determined that the rule does not liabilities are assumed by an operating
depositors. This final rule clarifies that constitute a ‘‘major rule’’ as defined by insured depository institution from an
the notice must be on the institution’s SBREFA. insured depository institution in
letterhead, signed by a duly authorized default, as defined in section 3(x)(1) of
officer and sent to the depositor’s last List of Subjects in 12 CFR Part 307
the FDI Act (12 U.S.C. 1813(x)(1)), and
known address on the institution’s Bank deposit insurance, Reporting that has been placed under FDIC
books. To assist the industry with and recordkeeping requirements. receivership.
compliance, the rule provides a (b) Certification requirements. The
template (Appendix B) that may be used ■ For the reasons set forth in the certification required by paragraph (a) of
to satisfy the section 307.3 certification preamble, the Board of Directors of the this section shall be provided on official
requirements. FDIC hereby revises Part 307 of Title 12 letterhead of the transferring insured
of the Code of Federal Regulations to depository institution or its legal
V. Regulatory Analysis and Procedure read as follows: successor, signed by a duly authorized
A. Paperwork Reduction Act official, and state the date the
PART 307—CERTIFICATION OF assumption took effect. The certification
In accordance with the Paperwork ASSUMPTION OF DEPOSITS AND shall indicate the date on which the
Reduction Act (44 U.S.C. 3501 et seq.), NOTIFICATION OF CHANGES OF transferring institution’s authority to
the FDIC may not conduct or sponsor, INSURED STATUS engage in banking has terminated or
and a person is not required to respond will terminate as well as the method of
Sec.
to, a collection of information unless it 307.1 Scope and purpose. termination (e.g., whether by the
displays a currently valid Office of 307.2 Certification of assumption of deposit surrender of its charter, by the
Management and Budget (OMB) control liabilities. cancellation of its charter or license to
number. The collection of information 307.3 Notice to depositors when insured conduct a banking business, or
contained in this rule was submitted to status is voluntarily terminated and otherwise). The certification may follow
OMB for review and was approved
deposits are not assumed. the form contained in Appendix A of
Appendix A to Part 307—Transferring this part. In a merger or consolidation
under control number 3064–0124, Institution Letterhead
which will expire on December 31, where there is only one surviving entity
Appendix B to Part 307—Institution which is the legal successor to both the
2008. Letterhead
transferring and assuming institutions,
B. Regulatory Flexibility Act Authority: 12 U.S.C. 1818(a)(6); 1818(q); the surviving entity shall provide any
and 1819(a) [Tenth]. required certification.
Pursuant to section 605(b) of the (c) Filing. The certification required
§ 307.1 Scope and purpose.
Regulatory Flexibility Act (5 U.S.C. 601 by paragraph (a) of this section shall be
et seq.), the FDIC certifies that this rule (a) Scope. This Part applies to all provided within 30 calendar days after
will not have a significant economic insured depository institutions, as the assumption takes effect, and shall be
impact on a substantial number of small defined in section 3(c)(2) of the Federal submitted to the appropriate Regional
entities. The rule will reduce regulatory Deposit Insurance Act (FDI Act) (12 Director of the FDIC’s Division of
burden by eliminating the need for a U.S.C. 1813(c)(2)). Supervision and Consumer Protection,
certification to be filed with the FDIC (b) Purpose. This Part sets forth the as defined in 12 CFR 303.2(g).
when the liability for some, but not all, rules governing: (d) Evidence of assumption. The
of the deposits of an insured institution receipt by the FDIC of an accurate
(1) The time and manner for certification for a total assumption as
are transferred to another institution. A
providing certification to the FDIC required by paragraphs (a), (b) and (c) of
certification requires a minimal amount
regarding the assumption of all of the this section shall constitute satisfactory
of time and resources since it reports deposit liabilities of an insured
information readily available to the evidence of such deposit assumption, as
depository institution by one or more required by section 8(q) of the FDI Act
institution making the certification. insured depository institutions; and (12 U.S.C. 1818(q)), and the insured
5 FDI Act section 18(i)(3), 12 U.S.C. 1828(i)(3). (2) The notification that an insured status of the transferring institution
This rule does not affect the requirements for FDIC depository institution shall provide its shall terminate on the date of the receipt
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approval of voluntary deposit insurance depositors when a depository of the certification. In appropriate
terminations under sections 8(a) and 8(p) of the FDI institution’s insured status is being circumstances, the FDIC, in its sole
Act or for prior written consent for the conversion
of an insured depository institution into a
voluntarily terminated without its discretion, may require additional
noninsured bank or institution as required by deposits being assumed by one or more information, or may consider other
section 18(i)(3). insured depository institutions. evidence of a deposit assumption to

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8792 Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations

constitute satisfactory evidence of such follow the form of the notice contained By order of the Board of Directors, at
assumption for purposes of section 8(q). in Appendix B of this part. Washington, DC, on this 10th day of
(e) Issuance of an order. The February, 2006.
(d) Other requirements possible. The
Executive Secretary, upon request from Federal Deposit Insurance Corporation.
FDIC may require the insured
the Director of the Division of depository institution to take such other Robert Feldman,
Supervision and Consumer Protection actions as the FDIC considers necessary Executive Secretary.
and with the concurrence of the General and appropriate for the protection of [FR Doc. 06–1568 Filed 2–17–06; 8:45 am]
Counsel, or their respective designees, depositors. BILLING CODE 6714–01–P
shall issue an order terminating the
insured status of the transferring Appendix A to Part 307—Transferring
insured depository institution as of the Institution Letterhead
DEPARTMENT OF TRANSPORTATION
date of receipt by the FDIC of [Date]
satisfactory evidence of such [Name and Address of appropriate FDIC Federal Aviation Administration
assumption, pursuant to section 8(q) of Regional Director]
the FDI Act and this regulation. SUBJECT: Certification of Total Assumption 14 CFR Part 39
Generally, no order shall be issued, of Deposits
under this paragraph, and insured status [Docket No. FAA–2006–23935; Directorate
This certification is being provided Identifier 2005–NM–060–AD; Amendment
shall be cancelled by operation of law: pursuant to 12 U.S.C. 1818(q) and 12 CFR 39–14492; AD 2006–04–11]
(1) If the charter of the transferring 307.2. On [state the date the deposit
institution has been cancelled, revoked, assumption took effect], [state the name of RIN 2120–AA64
rescinded, or otherwise terminated by the depository institution assuming the
operation of applicable state or federal deposit liabilities] assumed all of the deposits Airworthiness Directives; Airbus Model
statutes or regulations, or by action of of [state the name and location of the A321–100 Series Airplanes
the chartering authority for the transferring institution whose deposits were AGENCY: Federal Aviation
transferring institution essentially assumed]. [If applicable, state the date and
method by which the transferring
Administration (FAA), Department of
contemporaneously, that is, generally Transportation (DOT).
within five business days after all institution’s authority to engage in banking
was or will be terminated.] Please contact the ACTION: Final rule; request for
deposits have been assumed; or
undersigned, at [telephone number], if comments.
(2) If the transferring institution is an additional information is needed.
insured depository institution in default SUMMARY: The FAA is superseding an
Sincerely,
and for which the FDIC has been existing airworthiness directive (AD),
appointed receiver. By:
which applies to certain Airbus Model
[Name and Title of Authorized A321–111, –112, and –131 series
§ 307.3 Notice to depositors when insured Representative]
status is voluntarily terminated and airplanes. That AD currently requires
deposits are not assumed. Appendix B to Part 307—Institution repetitive inspections to detect fatigue
(a) Notice required. An insured Letterhead cracking in the area surrounding certain
depository institution that has obtained [Date]
attachment holes of the forward pintle
authority from the FDIC to terminate its fittings of the main landing gear (MLG)
[Name and Address of Depositor]
insured status under sections 8(a), 8(p) and the actuating cylinder anchorage
SUBJECT: Notice to Depositor of Voluntary fittings on the inner rear spar; and
or 18(i)(3) of the FDI Act without its Termination of Insured Status
deposit liabilities being assumed by one repair, if necessary. The existing AD
The insured status of [name of insured also provides for optional terminating
or more insured depository institutions depository institution], under the provisions
shall provide to each of its depositors, action for the repetitive inspections.
of the Federal Deposit Insurance Act, will
at the depositor’s last known address of terminate as of the close of business on [state
This AD adds inspections of three
record on the books of the institution, the date] (‘‘termination date’’). Insured additional mounting holes and revises
prior written notification of the date the deposits in the [name of insured depository the thresholds for the currently required
institution’s insured status shall institution] on the termination date, less all inspections. This AD results from
terminate. withdrawals from such deposits made manufacturer analysis of the fatigue and
(b) Prior approval of notice. The subsequent to that date, will continue to be damage tolerance of the area
insured depository institution shall insured by the Federal Deposit Insurance surrounding certain mounting holes of
Corporation, to the extent provided by law, the MLG. We are issuing this AD to
provide the appropriate Regional
until [state the date]. The Federal Deposit detect and correct fatigue cracking on
Director of the FDIC’s Division of Insurance Corporation will not insure any
Supervision and Consumer Protection, the inner rear spar of the wings, which
new deposits or additions to existing
as defined in 12 CFR 303.2(g), a copy of deposits made by you after the termination
could result in reduced structural
the proposed notice for approval. After date. integrity of the airplane.
being approved, the notice shall be This Notice is being provided pursuant to DATES: This AD becomes effective
provided to depositors by the insured 12 CFR 307.3. March 8, 2006.
depository institution at the time and in Please contact [name of institution official The Director of the Federal Register
the manner specified by the appropriate in charge of depositor inquiries], at [name approved the incorporation by reference
Regional Director. and address of insured depository of certain publications listed in the AD
(c) Form of notice. The notice to institution] if additional information is as of March 8, 2006.
needed regarding this Notice or the insured
depositors required by paragraph (a) of The incorporation by reference of
status of your account(s).
this section shall be provided on the Airbus Service Bulletin A320–57–1101,
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Sincerely,
official letterhead of the insured Revision 02, dated October 25, 2001, as
depository institution, shall bear the By: listed in the regulations, was approved
signature of a duly authorized officer, [Name and Title of Authorized previously by the Director of the Federal
and, unless otherwise specified by the Representative] Register as of April 21, 2004 (69 FR
appropriate Regional Director, may 17906, April 6, 2004).

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