83_FR_13906 83 FR 13843 - Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance

83 FR 13843 - Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance

FEDERAL DEPOSIT INSURANCE CORPORATION

Federal Register Volume 83, Issue 63 (April 2, 2018)

Page Range13843-13849
FR Document2018-06163

The Federal Deposit Insurance Corporation (``FDIC'') is adopting a final rule to rescind and remove from the Code of Federal Regulations the part entitled ``Consumer Protection in Sales of Insurance'' and to amend current FDIC regulations to make them applicable to state savings associations.

Federal Register, Volume 83 Issue 63 (Monday, April 2, 2018)
[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Rules and Regulations]
[Pages 13843-13849]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06163]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 343 and 390

RIN 3064-AE49


Removal of Transferred OTS Regulations Regarding Consumer 
Protection in Sales of Insurance

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (``FDIC'') is 
adopting a final rule to rescind and remove from the Code of Federal 
Regulations the part entitled ``Consumer Protection in Sales of 
Insurance'' and to amend current FDIC regulations to make them 
applicable to state savings associations.

DATES: This final rule is effective on May 2, 2018.

FOR FURTHER INFORMATION CONTACT: Martha L. Ellett, Counsel, Legal 
Division, (202) 898-6765; John Jackwood, Senior Policy Analyst, 
Division of Depositor and Consumer Protection, (202) 898-3991.

SUPPLEMENTARY INFORMATION: Part 390, subpart I was included in the 
regulations that were transferred to the FDIC from the Office of Thrift 
Supervision (``OTS'') on July 21, 2011, in connection with the 
implementation of applicable provisions of title III of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (``Dodd-Frank Act''). 
The requirements for State savings associations in part 390, subpart I 
are substantively similar to the requirements in the FDIC's 12 CFR part 
343 (``part 343'') which is also entitled ``Consumer Protection in 
Sales of Insurance.''
    The FDIC is adopting a final rule to rescind in its entirety part 
390, subpart I and to modify the scope of part 343 to include State 
savings associations and their subsidiaries to conform to and reflect 
the scope of the FDIC's current supervisory responsibilities as the 
appropriate Federal banking agency. The final rule also defines ``FDIC-
supervised insured depository institution or institution'' and ``State 
savings association.'' In the final rule, the FDIC also transfers an 
anticoercion and antitying provision from part 390, subpart I that is 
applicable to State savings associations.
    Upon removal of part 390, subpart I, the Consumer Protection in 
Sales of Insurance regulations applicable for all insured depository 
institutions for which the FDIC has been designated the appropriate 
Federal banking agency will be found at 12 CFR part 343.

I. Background

The Dodd-Frank Act

    The Dodd-Frank Act \1\ provided for a substantial reorganization of 
the regulation of State and Federal savings associations and their 
holding companies. Beginning July 21, 2011, the transfer date 
established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 
5411, the powers, duties, and functions formerly performed by the OTS 
were divided among the FDIC, as to State savings associations, the 
Office of the Comptroller of the Currency (``OCC''), as to Federal 
savings associations, and the Board of Governors of the Federal Reserve 
System (``FRB''), as to savings and loan holding companies. Section 
316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides 
the manner of treatment for all orders, resolutions, determinations, 
regulations, and advisory materials that had been issued, made, 
prescribed, or allowed to become effective by the OTS. This section 
provides that if such materials were in effect on the day before the 
transfer date, they continue to be in effect and

[[Page 13844]]

are enforceable by or against the appropriate successor agency until 
they are modified, terminated, set aside, or superseded in accordance 
with applicable law by such successor agency, by any court of competent 
jurisdiction, or by operation of law.
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    \1\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 
5301 et seq.).
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    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 
5414(c), further directed the FDIC and the OCC to consult with one 
another and to publish a list of the continued OTS regulations that 
would be enforced by the FDIC and the OCC, respectively. On June 14, 
2011, the FDIC's Board of Directors approved a ``List of OTS 
Regulations to be enforced by the OCC and the FDIC Pursuant to the 
Dodd-Frank Wall Street Reform and Consumer Protection Act.'' This list 
was published by the FDIC and the OCC as a Joint Notice in the Federal 
Register on July 6, 2011.\2\
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    \2\ 76 FR 39247 (July 6, 2011).
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    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, 
codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking 
authority relating to both State and Federal savings associations, 
nothing in the Dodd-Frank Act affected the FDIC's existing authority to 
issue regulations under the Federal Deposit Insurance Act (``FDI Act'') 
and other laws as the ``Appropriate Federal Banking Agency'' or under 
similar statutory terminology. Section 312(c) of the Dodd-Frank Act 
amended the definition of ``Appropriate Federal Banking Agency'' 
contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add 
State savings associations to the list of entities for which the FDIC 
is designated as the ``appropriate Federal banking agency.'' As a 
result, when the FDIC acts as the designated ``Appropriate Federal 
Banking Agency'' (or under similar terminology) for State savings 
associations, as it does here, the FDIC is authorized to issue, modify 
and rescind regulations involving such associations, as well as for 
State nonmember banks and insured branches of foreign banks.
    As noted, on June 14, 2011, pursuant to this authority, the FDIC's 
Board of Directors reissued and redesignated certain transferring 
regulations of the former OTS. These transferred OTS regulations were 
published as new FDIC regulations in the Federal Register on August 5, 
2011.\3\ When it republished the transferred OTS regulations as new 
FDIC regulations, the FDIC specifically noted that its staff would 
evaluate the transferred OTS rules and might later recommend 
incorporating the transferred OTS regulations into other FDIC rules, 
amending them, or rescinding them, as appropriate.
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    \3\ 76 FR 47652 (Aug. 5, 2011).
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    One of the OTS rules transferred to the FDIC governed OTS oversight 
of consumer protections for depository institution sales of insurance. 
The OTS rule, formerly found at 12 CFR part 536, was transferred to the 
FDIC with only nominal changes and is now found in the FDIC's rules at 
part 390, subpart I, entitled ``Consumer Protection in Sales of 
Insurance.'' Before the transfer of the OTS rules and continuing today, 
the FDIC's rules contained part 343, entitled ``Consumer Protection in 
Sales of Insurance,'' a rule governing FDIC oversight of consumer 
protection regulations that apply to retail sales practices, 
solicitations, advertising, or offers of any insurance product with 
respect to insured depository institutions for which the FDIC has been 
designated the appropriate Federal banking agency.
    After careful review and comparison of part 390, subpart I, and 
part 343, the FDIC is adopting a final rule to rescind part 390, 
subpart I, because, as discussed below, it is substantively redundant 
to existing part 343 and simultaneously finalize technical conforming 
edits to the existing rule.

FDIC's Existing 12 CFR Part 343 and Former OTS's Part 536 (Transferred, 
in Part, to FDIC's Part 390, Subpart I)

    Section 305 of the Gramm-Leach-Bliley Act (``GLB Act'') \4\ added 
section 47 to the FDI Act,\5\ entitled ``Insurance Consumer 
Protections.'' Section 47 applies to retail sales practices, 
solicitations, advertising, or offers of insurance products by 
depository institutions \6\ or persons engaged in these activities at 
an office of the institution or on behalf of the institution.\7\ 
Section 47 directs the FDIC, the OTS, the OCC, and the FRB 
(collectively the ``Federal banking agencies'') to include provisions 
specifically relating to sales practices, disclosures and advertising, 
the physical separation of banking and nonbanking activities, and 
domestic violence discrimination.\8\ On December 4, 2000, pursuant to 
section 305 of the GLB Act,\9\ the Federal banking agencies published a 
joint final rule \10\ to implement consumer protection in sales of 
insurance provisions of section 47 of the FDI Act.
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    \4\ Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338 
(1999).
    \5\ 12 U.S.C. 1831x.
    \6\ A ``depository institution'' in this context means a 
national bank in the case of institutions supervised by the OCC, a 
State member bank in the case of the FRB, a State nonmember bank in 
the case of the FDIC, and a savings association in the case of the 
OTS. 65 FR 75822 fn. 1 (Dec. 4, 2000).
    \7\ 12 U.S.C. 1831x(a)(1)(A).
    \8\ 12 U.S.C. 1831x.
    \9\ 12 U.S.C. 1831x(a)(3).
    \10\ 65 FR 75822 (Dec. 4, 2000).
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    Section 47 of the FDI Act instructs the Federal banking agencies to 
consult and coordinate with one another and prescribe and publish joint 
consumer protection regulations that apply to retail sales practices, 
solicitations, advertising, or offers of insurance products by 
depository institutions or persons engaged in these activities at an 
office of the institution or on behalf of the institution.\11\ Section 
47 also requires the Federal banking agencies to consult with the State 
insurance regulators, as appropriate.\12\ Pursuant to Section 47, the 
Federal banking agencies consulted and coordinated with respect to this 
rulemaking and on an interagency basis jointly issued rules that are 
substantively identical with regard to consumer protection in sales of 
insurance requirements,\13\ including the same definition of a 
``covered person'' or ``you.'' \14\
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    \11\ 12 U.S.C. 1831x(a)(1).
    \12\ 12 U.S.C. 1831x(a)(3).
    \13\ 65 FR 75822 (Dec. 4, 2000).
    \14\ 65 FR 75822, 75824 (Dec. 4, 2000). A ``covered person'' or 
``you'' means ``any depository institution or any other person 
selling, soliciting, advertising, or offering insurance products or 
annuities to a consumer at an office of the institution or on behalf 
of the institution. A `covered person' includes any person, 
including a subsidiary or other affiliate, if that person or one of 
its employees sells, solicits, advertises, or offers insurance 
products or annuities at an office of an institution or on behalf of 
an institution. 65 FR 75824 (Dec. 4, 2000). See also 12 CFR 
343.20(j)(1) and 12 CFR 390.181.
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    The scope of part 343 in the FDIC's regulations and of part 390, 
subpart I in the OTS's regulations is substantively similar. The FDIC 
regulations apply to any bank \15\ or any other person that is engaged 
in such activities at an office of the bank or on behalf of the 
bank.\16\ Similarly, the OTS regulations apply to any State savings 
association or any other person that is engaged in such activities at 
an office of a State savings association or on behalf of a State 
savings association.\17\ In the FDIC's scope provisions, any other 
person includes subsidiaries \18\ because only subsidiaries that are 
selling insurance products or annuities at an office of the institution 
or acting on behalf of the depository institution as defined in the

[[Page 13845]]

rules would be subject to the requirements of the rules.\19\ The OTS 
regulation specifically states that its regulation applies to 
subsidiaries of a State savings association only to the extent that it 
sells, solicits, advertises, or offers insurance products or annuities 
at an office of a State savings association or on behalf of a State 
savings association.\20\ This OTS provision will not be carried over to 
the FDIC's part 343 because it is redundant and unnecessary, since the 
FDIC scope provision already includes subsidiaries within its 
definition.\21\ The rule specifically states that a covered person (or 
you) includes any person including a subsidiary or other affiliate if 
that person or one of its employees sells, solicits, advertises, or 
offers insurance products or annuities at an office of an institution 
or on behalf of an institution.\22\
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    \15\ Bank means an FDIC-insured, state-chartered commercial or 
savings bank that is not a member of the Federal Reserve System and 
for which the FDIC is the appropriate federal banking agency 
pursuant to section 3(q) of the Federal Deposit Insurance Act (12 
U.S.C. 1813(q)). 12 CFR 343.20(b).
    \16\ 12 CFR 343.10.
    \17\ 12 CFR 390.180(a)(1), (2).
    \18\ See 65 FR 75822, 75823 (Dec. 4, 2000).
    \19\ 65 FR 75822, 75823 (Dec. 4, 2000) (footnote omitted).
    \20\ 12 CFR 390.180(b).
    \21\ 12 CFR 343.10.
    \22\ 65 FR 75822, 75824 (Dec. 4, 2000) (italics added).
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    Accordingly, the portions of the OTS regulations that applied to 
State savings associations, their subsidiaries and their affiliates, 
originally codified at 12 CFR part 536 and subsequently transferred to 
FDIC's part 390, subpart I, are substantively similar to the current 
FDIC regulations codified at 12 CFR part 343. By amending part 343 to 
encompass State savings associations and rescinding part 390, subpart 
I, the FDIC will streamline its regulations and reduce redundancy.
    Although the former OTS rule and part 390, subpart I, covers 
savings and loan holding companies that are affiliated with savings 
associations in addition to savings associations, the FDIC does not 
supervise savings and loan or bank holding companies for purposes of 
this rule. Section 312 of the Dodd-Frank Act \23\ divides and transfers 
the functions of the former OTS to the FDIC, OCC, and FRB by amending 
section 1813(q) of the FDI Act. Specifically, section 312 transfers the 
former OTS's power to regulate State savings associations to the FDIC, 
while it transfers the power to regulate savings and loan holding 
companies to the FRB.\24\ As a result, whereas the former OTS part 536 
applied to savings associations, their subsidiaries and their 
affiliates, including savings and loan holding companies,\25\ upon 
transfer of part 536 to FDIC's part 390, subpart I, only the authority 
over State savings associations and their subsidiaries and other 
affiliates was transferred to the FDIC for purposes of this rule.\26\ 
The FRB currently has jurisdiction over the regulation and supervision 
of consumer protections in connection with retail insurance sales 
practices as it applies to affiliates, including savings and loan 
holding companies of State savings associations.\27\ For this reason, 
the existing references to affiliates in part 390, subpart I, are not 
transferred to part 343 of the FDIC rules.
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    \23\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 
5412).
    \24\ 12 U.S.C. 5412.
    \25\ 12 CFR 536.1.
    \26\ 12 CFR 390.180.
    \27\ 12 CFR part 208, subpart H.
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    After careful comparison of the FDIC's part 343 with the 
transferred OTS rule in part 390, subpart I, the FDIC has concluded 
that the transferred OTS rules governing consumer protection in sales 
of insurance are substantively redundant. Based on the foregoing, the 
FDIC is adopting a final rule to rescind and remove from the Code of 
Federal Regulations the transferred OTS rules located at part 390, 
subpart I, and to make technical and conforming changes to part 343 to 
incorporate State savings associations.

II. Proposed Rule

    The functions of the former OTS that were transferred to the FDIC, 
section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C. 5414(b)(3), in 
pertinent part, provide that the former OTS's regulations will be 
enforceable by the FDIC until they are modified, terminated, set aside, 
or superseded in accordance with applicable law. After reviewing the 
rules currently found in part 390, subpart I, on November 15, 2016 the 
FDIC published a Notice of Proposed Rulemaking (``NPR'' or ``Proposed 
Rule'') to (1) rescind part 390, subpart I, in its entirety; (2) modify 
to the scope of part 343 to include State savings associations and 
their subsidiaries to conform to and reflect the scope of FDIC's 
current supervisory responsibilities as the appropriate Federal banking 
agency for State savings associations; (3) delete the definition of 
``bank'' and replace it with a definition of ``FDIC-supervised insured 
depository institution or institution'', which means ``any State 
nonmember insured bank or State savings association for which the 
Federal Deposit Insurance Corporation is the appropriate Federal 
banking agency pursuant to section 3(q) of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(q));'' (4) add a new subsection (i), 
which would define ``State savings association'' as having ``the same 
meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 
U.S.C. 1813(b)(3));'' (5) transfer an anticoercion and antitying 
provision from part 390, subpart I that is applicable to State savings 
associations to part 343; and (6) make conforming technical edits 
throughout, including replacing the term ``institution'' in place of 
``bank'' throughout the rule where necessary.
    Under the NPR, oversight of consumer protection in sales of 
insurance in part 343 would apply to all FDIC-supervised institutions, 
including State savings associations, and part 390, subpart I, would be 
removed because it is largely redundant of the rules found in part 343. 
Rescinding part 390, subpart I, would serve to streamline the FDIC's 
rules and eliminate unnecessary regulations.

III. Comments

    The FDIC issued the NPR with a 60-day comment period which closed 
on January 20, 2017. The FDIC received no comments on its Proposed 
Rule. The final rule (``Final Rule'') is adopted as proposed without 
changes.

IV. Explanation of the Final Rule

    As discussed in the NPR, part 390, subpart I is substantively the 
same as the requirements in part 343 and therefore is redundant. The 
Final Rule removes and rescinds 12 CFR part 390, subpart I in its 
entirety. This will serve to streamline the FDIC's rules and eliminate 
unnecessary regulation.
    Consistent with the Proposed Rule, the Final Rule also amends the 
scope of part 343 to include State savings associations and their 
subsidiaries. The modified scope conforms to and reflects the scope of 
FDIC's current supervisory responsibilities as the appropriate Federal 
banking agency for State savings associations. The Final Rule also 
deletes the definition of ``bank'' and replaces it with a definition of 
``FDIC-supervised insured depository institution or institution'' 
defined as ``any State nonmember insured bank or State savings 
association for which the Federal Deposit Insurance Corporation is the 
appropriate Federal banking agency pursuant to section 3(q) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(q)).'' As in the Proposed 
Rule, the Final Rule adds a new subsection (i), which would define 
``State savings association'' as ``having the same meaning as in 
section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 
1813(b)(3)).'' The Final Rule, as the NPR, transfers an anticoercion 
and antitying provision that is applicable to State savings 
associations from part 390, subpart I, to part 343. As in the

[[Page 13846]]

Proposed Rule, the Final Rule also makes conforming technical edits 
throughout, including using the term ``institution'' in place of 
``bank'' throughout the rule where necessary.

V. Regulatory Process

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(``PRA'') of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or 
sponsor, and the respondent is not required to respond to, an 
information collection unless it displays a currently valid Office of 
Management and Budget (``OMB'') control number.
    The Final Rule would rescind and remove from the FDIC regulations 
part 390, subpart I. Part 390, subpart I was transferred with only 
nominal changes to the FDIC from the OTS when the OTS was abolished by 
title III of the Dodd-Frank Act and is substantively similar to the 
FDIC's existing part 343 regarding consumer protection in the sales of 
insurance by depository institutions. The information collections 
contained in part 343 are cleared by OMB under the FDIC's Insurance 
Sales Consumer Protections information collection (OMB Control No. 
3064-0140). The FDIC reviewed its burden estimates for the collection 
at the time it assumed responsibility for supervision of State savings 
associations transferred from the OTS and determined that no changes to 
the burden estimates were necessary. The Final Rule would not revise 
the Insurance Sales Consumer Protections information collection under 
OMB Control No. 3064-0140 or create any new information collection 
pursuant to the PRA. Consequently, no submission will be made to the 
Office of Management and Budget for review. In the Proposed Rule, the 
FDIC requested comment on its conclusion that the NPR did not revise 
the Insurance Sales Consumer Protections information collection 3064-
0140. No comments were received.
    The Final Rule, as the Proposed Rule, (1) amends part 343 to 
include State savings associations and their subsidiaries within its 
scope; and (2) defines ``FDIC-supervised insured depository institution 
or institution'' and ``State savings association;'' (3) transfers an 
anticoercion and antitying provision from part 390, subpart I, that is 
applicable to State savings associations to part 343; and (4) makes 
conforming technical edits throughout. These measures clarify that 
State savings associations, as well as State nonmember banks, are 
subject to part 343. With respect to part 343, the Final Rule does not 
revise any existing, or create any new information collection pursuant 
to the PRA. Consequently, no submission will be made to the Office of 
Management and Budget for review. The FDIC requested comment on its 
conclusion that this aspect of the NPR did not create a new or revise 
and existing information collection. No comments on this issue were 
received.

B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), requires that, in 
connection with a final rulemaking, an agency prepare and make 
available for public comment a final regulatory flexibility analysis 
that describes the impact of the proposed rule on small entities 
(defined in regulations promulgated by the Small Business 
Administration to include banking organizations with total assets of 
less than or equal to $550 million).\28\ However, a regulatory 
flexibility analysis is not required if the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities, and publishes its certification and a short 
explanatory statement in the Federal Register together with the rule. 
For the reasons provided below, the FDIC certifies that the Final Rule 
would not have a significant economic impact on a substantial number of 
small entities.
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    \28\ 5 U.S.C. 601 et seq.
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    As discussed in the NPR, Part 390, subpart I, was transferred to 
the FDIC from OTS part 536, which governed consumer protections for 
depository institution sales of insurance. OTS part 536 had been in 
effect since 2001 and all State savings associations were required to 
comply with it. Because it is substantially the same as existing part 
343 of the FDIC's rules and therefore redundant, the FDIC is rescinding 
and removing the transferred regulation now located in part 390, 
subpart I, as proposed in the NPR. As a result, all FDIC-supervised 
institutions--including State savings associations and their 
subsidiaries--would be required to comply with part 343 if they are 
selling, soliciting, advertising, or offering any insurance product. 
Because all State savings associations and their subsidiaries have been 
required to comply with substantially similar consumer protection rules 
if they engaged in sales of insurance since 2001,\29\ the Final Rule 
would not place additional requirements or burdens on any State savings 
association irrespective of its size. Therefore, the Final Rule would 
not have a significant impact on a substantial number of small 
entities.
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    \29\ 65 FR 75822 (Dec. 4, 2000). The final rule became effective 
April 1, 2001.
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C. Small Business Regulatory Enforcement Fairness Act

    The OMB has determined that the Final Rule is not a ``major rule'' 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (``SBREFA''), 5 U.S.C. 801 et seq. As required by 
SBREFA, the FDIC will submit the Final Rule and other appropriate 
reports to Congress and the Government Accountability Office for 
review.

D. Plain Language

    Section 722 of the GLB Act, codified at 12 U.S.C. 4809, requires 
each Federal banking agency to use plain language in all of its 
proposed and final rules published after January 1, 2000. In the NPR, 
the FDIC invited comments on whether the NPR was clearly stated and 
effectively organized, and how the FDIC might make it easier to 
understand. No comments on this issue were received. Although the FDIC 
did not receive any comments, the FDIC sought to present the Final Rule 
in a simple and straightforward manner.

E. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (``EGRPRA''), the FDIC is required to review all 
of its regulations, at least once every 10 years, in order to identify 
any outdated or otherwise unnecessary regulations imposed on insured 
institutions.\30\ The FDIC, along with the other federal banking 
agencies, submitted a Joint Report to Congress on March 21, 2017 
(``EGRPRA Report'') discussing how the review was conducted, what has 
been done to date to address regulatory burden, and further measures we 
will take to address issues that were identified. As noted in the 
EGRPRA Report, the FDIC is continuing to streamline and clarify its 
regulations through the OTS rule integration process. By removing 
outdated or unnecessary regulations, such as part 390, subpart I, and 
modifying part 343, this rule complements other actions the FDIC has 
taken, separately and with the other federal banking agencies, to 
further the EGRPRA mandate.
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    \30\ Public Law 104-208, 110 Stat. 3009 (1996).
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E. Riegle Community Development and Regulatory Improvement Act of 1994

    The Riegle Community Development and Regulatory Improvement Act of

[[Page 13847]]

1994 (RCDRIA) requires the FDIC, in determining the effective date and 
administrative compliance requirements for new regulations that impose 
additional reporting, disclosure or other requirements on insured 
depository institutions to consider, consistent with the principles of 
safety and soundness and the public interest, any administrative 
burdens that such regulations would place on depository institutions, 
including small depository institutions, as well as the benefits of 
such regulations.
    In addition, new regulations and amendments to regulations that 
impose additional reporting, disclosures or other new requirements on 
insured depository institutions generally must take effect on the first 
day of the calendar quarter that begins on or after the date on which 
the regulations are published in final form.\31\ The Final Rule has no 
new reporting or other new requirements on insured depository 
institutions. Therefore, the final rule is not subject to the 
requirements of the statute.
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    \31\ 12 U.S.C. 4802.
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List of Subjects

12 CFR Part 343

    Banks, banking; Consumer protection in sales of insurance; Savings 
associations.

12 CFR Part 390

    Consumer protection in sales of insurance.

Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of 
the Federal Deposit Insurance Corporation is amending 12 CFR parts 343 
and 390 as follows:

0
1. Revise part 343 to read as follows:

PART 343--CONSUMER PROTECTION IN SALES OF INSURANCE

Sec.
343.10 Purpose and scope.
343.20 Definitions.
343.30 Prohibited practices.
343.40 What you must disclose.
343.50 Where insurance activities may take place.
343.60 Qualification and licensing requirements for insurance sales 
personnel.
Appendix A to Part 343--Consumer Grievance Process

    Authority:  12 U.S.C. 1819 (Seventh and Tenth); 12 U.S.C. 1831x.


Sec.  343.10  Purpose and scope.

    This part establishes consumer protections in connection with 
retail sales practices, solicitations, advertising, or offers of any 
insurance product or annuity to a consumer by:
    (a) Any institution; or
    (b) Any other person that is engaged in such activities at an 
office of the institution or on behalf of the institution.


Sec.  343.20   Definitions.

    As used in this part:
    Affiliate means a company that controls, is controlled by, or is 
under common control with another company.
    Company means any corporation, partnership, business trust, 
association or similar organization, or any other trust (unless by its 
terms the trust must terminate within twenty-five years or not later 
than twenty-one years and ten months after the death of individuals 
living on the effective date of the trust). It does not include any 
corporation the majority of the shares of which are owned by the United 
States or by any State, or a qualified family partnership, as defined 
in section 2(o)(10) of the Bank Holding Company Act of 1956, as amended 
(12 U.S.C. 1841(o)(10)).
    Consumer means an individual who purchases, applies to purchase, or 
is solicited to purchase from you insurance products or annuities 
primarily for personal, family, or household purposes.
    Control of a company has the same meaning as in section 3(w)(5) of 
the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(5)).
    Domestic violence means the occurrence of one or more of the 
following acts by a current or former family member, household member, 
intimate partner, or caretaker:
    (1) Attempting to cause or causing or threatening another person 
physical harm, severe emotional distress, psychological trauma, rape, 
or sexual assault;
    (2) Engaging in a course of conduct or repeatedly committing acts 
toward another person, including following the person without proper 
authority, under circumstances that place the person in reasonable fear 
of bodily injury or physical harm;
    (3) Subjecting another person to false imprisonment; or
    (4) Attempting to cause or causing damage to property so as to 
intimidate or attempt to control the behavior of another person.
    Electronic media includes any means for transmitting messages 
electronically between you and a consumer in a format that allows 
visual text to be displayed on equipment, for example, a personal 
computer monitor.
    FDIC-supervised insured depository institution or institution means 
any State nonmember insured bank or State savings association for which 
the Federal Deposit Insurance Corporation is the appropriate Federal 
banking agency pursuant to section 3(q) of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(q)).
    Office means the premises of an institution where retail deposits 
are accepted from the public.
    State savings association has the same meaning as in section 
(3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).
    Subsidiary has the same meaning as in section 3(w)(4) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(w)(4)).
    You--(1) Means:
    (i) An institution; or
    (ii) Any other person only when the person sells, solicits, 
advertises, or offers an insurance product or annuity to a consumer at 
an office of the institution or on behalf of an institution.
    (2) For purposes of this definition, activities on behalf of an 
institution include activities where a person, whether at an office of 
the institution or at another location sells, solicits, advertises, or 
offers an insurance product or annuity and at least one of the 
following applies:
    (i) The person represents to a consumer that the sale, 
solicitation, advertisement, or offer of any insurance product or 
annuity is by or on behalf of the institution;
    (ii) The institution refers a consumer to a seller of insurance 
products or annuities and the institution has a contractual arrangement 
to receive commissions or fees derived from a sale of an insurance 
product or annuity resulting from that referral; or
    (iii) Documents evidencing the sale, solicitation, advertising, or 
offer of an insurance product or annuity identify or refer to the 
institution.


Sec.  343.30  Prohibited practices.

    (a) Anticoercion and antitying rules. You may not engage in any 
practice that would lead a consumer to believe that an extension of 
credit, in violation of section 106(b) of the Bank Holding Company Act 
Amendments of 1970 (12 U.S.C. 1972) in the case of a State nonmember 
insured bank and a foreign bank having an insured branch, or in 
violation of section 5(q) of the Home Owners' Loan Act (12 U.S.C. 
1464(q)) in the case of a State savings association, is conditional 
upon either:
    (1) The purchase of an insurance product or annuity from the 
institution or any of its affiliates; or
    (2) An agreement by the consumer not to obtain, or a prohibition on 
the consumer from obtaining, an insurance

[[Page 13848]]

product or annuity from an unaffiliated entity.
    (b) Prohibition on misrepresentations generally. You may not engage 
in any practice or use any advertisement at any office of, or on behalf 
of, the institution or a subsidiary of the institution that could 
mislead any person or otherwise cause a reasonable person to reach an 
erroneous belief with respect to:
    (1) The fact that an insurance product or annuity sold or offered 
for sale by you or any subsidiary of the institution is not backed by 
the Federal government or the institution, or the fact that the 
insurance product or annuity is not insured by the Federal Deposit 
Insurance Corporation;
    (2) In the case of an insurance product or annuity that involves 
investment risk, the fact that there is an investment risk, including 
the potential that principal may be lost and that the product may 
decline in value; or
    (3) In the case of an institution or subsidiary of the institution 
at which insurance products or annuities are sold or offered for sale, 
the fact that:
    (i) The approval of an extension of credit to a consumer by the 
institution or subsidiary may not be conditioned on the purchase of an 
insurance product or annuity by the consumer from the institution or a 
subsidiary of the institution; and
    (ii) The consumer is free to purchase the insurance product or 
annuity from another source.
    (c) Prohibition on domestic violence discrimination. You may not 
sell or offer for sale, as principal, agent, or broker, any life or 
health insurance product if the status of the applicant or insured as a 
victim of domestic violence or as a provider of services to victims of 
domestic violence is considered as a criterion in any decision with 
regard to insurance underwriting, pricing, renewal, or scope of 
coverage of such product, or with regard to the payment of insurance 
claims on such product, except as required or expressly permitted under 
State law.


Sec.  343.40  What you must disclose.

    (a) Insurance disclosures. In connection with the initial purchase 
of an insurance product or annuity by a consumer from you, you must 
disclose to the consumer, except to the extent the disclosure would not 
be accurate, that:
    (1) The insurance product or annuity is not a deposit or other 
obligation of, or guaranteed by, the institution or an affiliate of the 
institution;
    (2) The insurance product or annuity is not insured by the Federal 
Deposit Insurance Corporation (FDIC) or any other agency of the United 
States, the institution, or (if applicable) an affiliate of the 
institution; and
    (3) In the case of an insurance product or annuity that involves an 
investment risk, there is investment risk associated with the product, 
including the possible loss of value.
    (b) Credit disclosure. In the case of an application for credit in 
connection with which an insurance product or annuity is solicited, 
offered, or sold, you must disclose that the institution may not 
condition an extension of credit on either:
    (1) The consumer's purchase of an insurance product or annuity from 
the institution or any of its affiliates; or
    (2) The consumer's agreement not to obtain, or a prohibition on the 
consumer from obtaining, an insurance product or annuity from an 
unaffiliated entity.
    (c) Timing and method of disclosures--(1) In general. The 
disclosures required by paragraph (a) of this section must be provided 
orally and in writing before the completion of the initial sale of an 
insurance product or annuity to a consumer. The disclosure required by 
paragraph (b) of this section must be made orally and in writing at the 
time the consumer applies for an extension of credit in connection with 
which an insurance product or annuity is solicited, offered, or sold.
    (2) Exception for transactions by mail. If a sale of an insurance 
product or annuity is conducted by mail, you are not required to make 
the oral disclosures required by paragraph (a) of this section. If you 
take an application for credit by mail, you are not required to make 
the oral disclosure required by paragraph (b) of this section.
    (3) Exception for transactions by telephone. If a sale of an 
insurance product or annuity is conducted by telephone, you may provide 
the written disclosures required by paragraph (a) of this section by 
mail within 3 business days beginning on the first business day after 
the sale, excluding Sundays and the legal public holidays specified in 
5 U.S.C. 6103(a). If you take an application for credit by telephone, 
you may provide the written disclosure required by paragraph (b) of 
this section by mail, provided you mail it to the consumer within three 
days beginning the first business day after the application is taken, 
excluding Sundays and the legal public holidays specified in 5 U.S.C. 
6103(a).
    (4) Electronic form of disclosures. (i) Subject to the requirements 
of section 101(c) of the Electronic Signatures in Global and National 
Commerce Act (12 U.S.C. 7001(c)), you may provide the written 
disclosures required by paragraph (a) and (b) of this section through 
electronic media instead of on paper, if the consumer affirmatively 
consents to receiving the disclosures electronically and if the 
disclosures are provided in a format that the consumer may retain or 
obtain later, for example, by printing or storing electronically (such 
as by downloading).
    (ii) Any disclosure required by paragraph (a) or (b) of this 
section that is provided by electronic media is not required to be 
provided orally.
    (5) Disclosures must be readily understandable. The disclosures 
provided shall be conspicuous, simple, direct, readily understandable, 
and designed to call attention to the nature and significance of the 
information provided. For instance, you may use the following 
disclosures in visual media, such as television broadcasting, ATM 
screens, billboards, signs, posters and written advertisements and 
promotional materials, as appropriate and consistent with paragraphs 
(a) and (b) of this section:
    (i) ``NOT A DEPOSIT''
    (ii) ``NOT FDIC-INSURED''
    (iii) ``NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY''
    (iv) ``NOT GUARANTEED BY THE INSTITUTION''
    (v) ``MAY GO DOWN IN VALUE''
    (6) Disclosures must be meaningful. (i) You must provide the 
disclosures required by paragraphs (a) and (b) of this section in a 
meaningful form. Examples of the types of methods that could call 
attention to the nature and significance of the information provided 
include:
    (A) A plain-language heading to call attention to the disclosures;
    (B) A typeface and type size that are easy to read;
    (C) Wide margins and ample line spacing;
    (D) Boldface or italics for key words; and
    (E) Distinctive type size, style, and graphic devices, such as 
shading or sidebars, when the disclosures are combined with other 
information.
    (ii) You have not provided the disclosures in a meaningful form if 
you merely state to the consumer that the required disclosures are 
available in printed material, but do not provide the printed material 
when required and do not orally disclose the information to the 
consumer when required.
    (iii) With respect to those disclosures made through electronic 
media for which paper or oral disclosures are not required, the 
disclosures are not meaningfully provided if the consumer may bypass 
the visual text of the disclosures before purchasing an insurance 
product or annuity.

[[Page 13849]]

    (7) Consumer acknowledgment. You must obtain from the consumer, at 
the time a consumer receives the disclosures required under paragraph 
(a) or (b) of this section, or at the time of the initial purchase by 
the consumer of an insurance product or annuity, a written 
acknowledgment by the consumer that the consumer received the 
disclosures. You may permit a consumer to acknowledge receipt of the 
disclosures electronically or in paper form. If the disclosures 
required under paragraph (a) or (b) of this section are provided in 
connection with a transaction that is conducted by telephone, you must:
    (i) Obtain an oral acknowledgment of receipt of the disclosures and 
maintain sufficient documentation to show that the acknowledgment was 
given; and
    (ii) Make reasonable efforts to obtain a written acknowledgment 
from the consumer.
    (d) Advertisements and other promotional material for insurance 
products or annuities. The disclosures described in paragraph (a) of 
this section are required in advertisements and promotional material 
for insurance products or annuities unless the advertisements and 
promotional materials are of a general nature describing or listing the 
services or products offered by the institution.


Sec.  343.50   Where insurance activities may take place.

    (a) General rule. An institution must, to the extent practicable, 
keep the area where the institution conducts transactions involving 
insurance products or annuities physically segregated from areas where 
retail deposits are routinely accepted from the general public, 
identify the areas where insurance product or annuity sales activities 
occur, and clearly delineate and distinguish those areas from the areas 
where the institution's retail deposit-taking activities occur.
    (b) Referrals. Any person who accepts deposits from the public in 
an area where such transactions are routinely conducted in the 
institution may refer a consumer who seeks to purchase an insurance 
product or annuity to a qualified person who sells that product only if 
the person making the referral receives no more than a one-time, 
nominal fee of a fixed dollar amount for each referral that does not 
depend on whether the referral results in a transaction.


Sec.  343.60   Qualification and licensing requirements for insurance 
sales personnel.

    An institution may not permit any person to sell or offer for sale 
any insurance product or annuity in any part of its office or on its 
behalf, unless the person is at all times appropriately qualified and 
licensed under applicable State insurance licensing standards with 
regard to the specific products being sold or recommended.

Appendix A to Part 343--Consumer Grievance Process

    Any consumer who believes that any institution or any other person 
selling, soliciting, advertising, or offering insurance products or 
annuities to the consumer at an office of the institution or on behalf 
of the institution has violated the requirements of this part should 
contact the Division of Depositor and Consumer Protection, Consumer 
Response Center, Federal Deposit Insurance Corporation, at the 
following address: 1100 Walnut Street, Box #11, Kansas City, MO 64106, 
or telephone 1-877-275-3342, or FDIC Electronic Customer Assistance 
Form at http://www5.fdic.gov/starsmail/index.asp.

PART 390--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
2. The authority citation for part 390 is revised to read as follows:

    Authority:  12 U.S.C. 1831y.

Subpart I--[Removed and Reserved]

0
3. Remove and reserve subpart I, consisting of Sec. Sec.  390.180 
through 390.185, and appendix A.

    Dated at Washington, DC, on March 20, 2018.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. 2018-06163 Filed 3-30-18; 8:45 am]
 BILLING CODE 6714-01-P



                                                                  Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations                                                13843

                                             institution shall designate a security                     (iii) The distance of the banking office           Supervision (‘‘OTS’’) on July 21, 2011,
                                             officer who shall have the authority,                   from the nearest responsible law                      in connection with the implementation
                                             subject to the approval of the board of                 enforcement officers;                                 of applicable provisions of title III of the
                                             directors, to develop, within a                            (iv) The cost of the security devices;             Dodd-Frank Wall Street Reform and
                                             reasonable time, but no later than 180                     (v) Other security measures in effect              Consumer Protection Act (‘‘Dodd-Frank
                                             days, and to administer a written                       at the banking office; and                            Act’’). The requirements for State
                                             security program for each banking                          (vi) The physical characteristics of the           savings associations in part 390, subpart
                                             office.                                                 structure of the banking office and its               I are substantively similar to the
                                                                                                     surroundings.                                         requirements in the FDIC’s 12 CFR part
                                             § 326.3   Security program.                                                                                   343 (‘‘part 343’’) which is also entitled
                                                (a) Contents of security program. The                § 326.4   Reports.                                    ‘‘Consumer Protection in Sales of
                                             security program shall:                                    The security officer for each                      Insurance.’’
                                                (1) Establish procedures for opening                 institution shall report at least annually               The FDIC is adopting a final rule to
                                             and closing for business and for the                    to the institution’s board of directors on            rescind in its entirety part 390, subpart
                                             safekeeping of all currency, negotiable                 the implementation, administration, and               I and to modify the scope of part 343 to
                                             securities, and similar valuables at all                effectiveness of the security program.                include State savings associations and
                                             times;                                                                                                        their subsidiaries to conform to and
                                                (2) Establish procedures that will                   PART 391—[REMOVED AND                                 reflect the scope of the FDIC’s current
                                             assist in identifying persons committing                RESERVED]                                             supervisory responsibilities as the
                                             crimes against the institution and that                                                                       appropriate Federal banking agency.
                                                                                                     ■ 3. Under the authority of 12 U.S.C.                 The final rule also defines ‘‘FDIC-
                                             will preserve evidence that may aid in                  1819(a) Tenth, part 391, consisting of
                                             their identification and prosecution;                                                                         supervised insured depository
                                                                                                     subpart A, is removed and reserved.                   institution or institution’’ and ‘‘State
                                             such procedures may include, but are
                                             not limited to:                                           Dated at Washington, DC, on March 20,               savings association.’’ In the final rule,
                                                                                                     2018.                                                 the FDIC also transfers an anticoercion
                                                (i) Retaining a record of any robbery,
                                             burglary, or larceny committed against                    By order of the Board of Directors.                 and antitying provision from part 390,
                                             the institution;                                        Federal Deposit Insurance Corporation.                subpart I that is applicable to State
                                                (ii) Maintaining a camera that records               Valerie J. Best,                                      savings associations.
                                             activity in the banking office; and                     Assistant Executive Secretary.                           Upon removal of part 390, subpart I,
                                                (iii) Using identification devices, such             [FR Doc. 2018–06161 Filed 3–30–18; 8:45 am]
                                                                                                                                                           the Consumer Protection in Sales of
                                             as prerecorded serial-numbered bills, or                                                                      Insurance regulations applicable for all
                                                                                                     BILLING CODE 6714–01–P
                                             chemical and electronic devices;                                                                              insured depository institutions for
                                                                                                                                                           which the FDIC has been designated the
                                                (3) Provide for initial and periodic
                                                                                                     FEDERAL DEPOSIT INSURANCE                             appropriate Federal banking agency will
                                             training of officers and employees in
                                                                                                     CORPORATION                                           be found at 12 CFR part 343.
                                             their responsibilities under the security
                                             program and in proper employee                                                                                I. Background
                                             conduct during and after a robbery,                     12 CFR Parts 343 and 390
                                                                                                                                                           The Dodd-Frank Act
                                             burglar or larceny; and                                 RIN 3064–AE49
                                                (4) Provide for selecting, testing,                                                                           The Dodd-Frank Act 1 provided for a
                                             operating and maintaining appropriate                   Removal of Transferred OTS                            substantial reorganization of the
                                             security devices, as specified in                       Regulations Regarding Consumer                        regulation of State and Federal savings
                                             paragraph (b) of this section.                          Protection in Sales of Insurance                      associations and their holding
                                                (b) Security devices. Each institution                                                                     companies. Beginning July 21, 2011, the
                                                                                                     AGENCY:  Federal Deposit Insurance                    transfer date established by section 311
                                             shall have, at a minimum, the following
                                                                                                     Corporation.                                          of the Dodd-Frank Act, codified at 12
                                             security devices:
                                                (1) A means of protecting cash or                    ACTION: Final rule.                                   U.S.C. 5411, the powers, duties, and
                                             other liquid assets, such as a vault, safe,                                                                   functions formerly performed by the
                                                                                                     SUMMARY:  The Federal Deposit                         OTS were divided among the FDIC, as
                                             or other secure space;                                  Insurance Corporation (‘‘FDIC’’) is
                                                (2) A lighting system for illuminating,                                                                    to State savings associations, the Office
                                                                                                     adopting a final rule to rescind and                  of the Comptroller of the Currency
                                             during the hours of darkness, the area                  remove from the Code of Federal
                                             around the vault, if the vault is visible                                                                     (‘‘OCC’’), as to Federal savings
                                                                                                     Regulations the part entitled ‘‘Consumer              associations, and the Board of
                                             from outside the banking office;                        Protection in Sales of Insurance’’ and to             Governors of the Federal Reserve
                                                (3) An alarm system or other                         amend current FDIC regulations to make                System (‘‘FRB’’), as to savings and loan
                                             appropriate device for promptly                         them applicable to state savings                      holding companies. Section 316(b) of
                                             notifying the nearest responsible law                   associations.                                         the Dodd-Frank Act, codified at 12
                                             enforcement officers of an attempted or
                                                                                                     DATES: This final rule is effective on                U.S.C. 5414(b), provides the manner of
                                             perpetrated robbery or burglary;
                                                                                                     May 2, 2018.                                          treatment for all orders, resolutions,
                                                (4) Tamper-resistant locks on exterior
                                                                                                     FOR FURTHER INFORMATION CONTACT:                      determinations, regulations, and
                                             doors and exterior windows that may be
                                                                                                     Martha L. Ellett, Counsel, Legal                      advisory materials that had been issued,
                                             opened; and
                                                                                                     Division, (202) 898–6765; John                        made, prescribed, or allowed to become
                                                (5) Such other devices as the security
                                                                                                     Jackwood, Senior Policy Analyst,                      effective by the OTS. This section
                                             officer determines to be appropriate,
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                                                                                                     Division of Depositor and Consumer                    provides that if such materials were in
                                             taking into consideration:
                                                                                                     Protection, (202) 898–3991.                           effect on the day before the transfer
                                                (i) The incidence of crimes against
                                                                                                                                                           date, they continue to be in effect and
                                             financial institutions in the area;                     SUPPLEMENTARY INFORMATION: Part 390,
                                                (ii) The amount of currency or other                 subpart I was included in the                           1 Dodd-Frank Wall Street Reform and Consumer
                                             valuables exposed to robbery, burglary,                 regulations that were transferred to the              Protection Act, Public Law 111–203, 124 Stat. 1376
                                             and larceny;                                            FDIC from the Office of Thrift                        (2010) (codified at 12 U.S.C. 5301 et seq.).



                                        VerDate Sep<11>2014   16:23 Mar 30, 2018   Jkt 244001   PO 00000   Frm 00027   Fmt 4700   Sfmt 4700   E:\FR\FM\02APR1.SGM   02APR1


                                             13844                  Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations

                                             are enforceable by or against the                         FDIC rules, amending them, or                            published a joint final rule 10 to
                                             appropriate successor agency until they                   rescinding them, as appropriate.                         implement consumer protection in sales
                                             are modified, terminated, set aside, or                      One of the OTS rules transferred to                   of insurance provisions of section 47 of
                                             superseded in accordance with                             the FDIC governed OTS oversight of                       the FDI Act.
                                             applicable law by such successor                          consumer protections for depository                        Section 47 of the FDI Act instructs the
                                             agency, by any court of competent                         institution sales of insurance. The OTS                  Federal banking agencies to consult and
                                             jurisdiction, or by operation of law.                     rule, formerly found at 12 CFR part 536,                 coordinate with one another and
                                                Section 316(c) of the Dodd-Frank Act,                  was transferred to the FDIC with only                    prescribe and publish joint consumer
                                             codified at 12 U.S.C. 5414(c), further                    nominal changes and is now found in                      protection regulations that apply to
                                             directed the FDIC and the OCC to                          the FDIC’s rules at part 390, subpart I,                 retail sales practices, solicitations,
                                             consult with one another and to publish                   entitled ‘‘Consumer Protection in Sales                  advertising, or offers of insurance
                                             a list of the continued OTS regulations                   of Insurance.’’ Before the transfer of the               products by depository institutions or
                                             that would be enforced by the FDIC and                    OTS rules and continuing today, the                      persons engaged in these activities at an
                                             the OCC, respectively. On June 14, 2011,                  FDIC’s rules contained part 343, entitled                office of the institution or on behalf of
                                             the FDIC’s Board of Directors approved                    ‘‘Consumer Protection in Sales of                        the institution.11 Section 47 also
                                             a ‘‘List of OTS Regulations to be                         Insurance,’’ a rule governing FDIC                       requires the Federal banking agencies to
                                             enforced by the OCC and the FDIC                          oversight of consumer protection                         consult with the State insurance
                                             Pursuant to the Dodd-Frank Wall Street                    regulations that apply to retail sales                   regulators, as appropriate.12 Pursuant to
                                             Reform and Consumer Protection Act.’’                     practices, solicitations, advertising, or                Section 47, the Federal banking agencies
                                             This list was published by the FDIC and                   offers of any insurance product with                     consulted and coordinated with respect
                                             the OCC as a Joint Notice in the Federal                  respect to insured depository                            to this rulemaking and on an
                                             Register on July 6, 2011.2                                institutions for which the FDIC has been                 interagency basis jointly issued rules
                                                Although section 312(b)(2)(B)(i)(II) of                designated the appropriate Federal                       that are substantively identical with
                                             the Dodd-Frank Act, codified at 12                        banking agency.                                          regard to consumer protection in sales
                                             U.S.C. 5412(b)(2)(B)(i)(II), granted the                     After careful review and comparison                   of insurance requirements,13 including
                                                                                                       of part 390, subpart I, and part 343, the                the same definition of a ‘‘covered
                                             OCC rulemaking authority relating to
                                                                                                       FDIC is adopting a final rule to rescind                 person’’ or ‘‘you.’’ 14
                                             both State and Federal savings
                                                                                                       part 390, subpart I, because, as                           The scope of part 343 in the FDIC’s
                                             associations, nothing in the Dodd-Frank                                                                            regulations and of part 390, subpart I in
                                             Act affected the FDIC’s existing                          discussed below, it is substantively
                                                                                                       redundant to existing part 343 and                       the OTS’s regulations is substantively
                                             authority to issue regulations under the                                                                           similar. The FDIC regulations apply to
                                             Federal Deposit Insurance Act (‘‘FDI                      simultaneously finalize technical
                                                                                                       conforming edits to the existing rule.                   any bank 15 or any other person that is
                                             Act’’) and other laws as the                                                                                       engaged in such activities at an office of
                                             ‘‘Appropriate Federal Banking Agency’’                    FDIC’s Existing 12 CFR Part 343 and                      the bank or on behalf of the bank.16
                                             or under similar statutory terminology.                   Former OTS’s Part 536 (Transferred, in                   Similarly, the OTS regulations apply to
                                             Section 312(c) of the Dodd-Frank Act                      Part, to FDIC’s Part 390, Subpart I)                     any State savings association or any
                                             amended the definition of ‘‘Appropriate                                                                            other person that is engaged in such
                                             Federal Banking Agency’’ contained in                        Section 305 of the Gramm-Leach-
                                                                                                       Bliley Act (‘‘GLB Act’’) 4 added section                 activities at an office of a State savings
                                             section 3(q) of the FDI Act, 12 U.S.C.                                                                             association or on behalf of a State
                                             1813(q), to add State savings                             47 to the FDI Act,5 entitled ‘‘Insurance
                                                                                                       Consumer Protections.’’ Section 47                       savings association.17 In the FDIC’s
                                             associations to the list of entities for                                                                           scope provisions, any other person
                                             which the FDIC is designated as the                       applies to retail sales practices,
                                                                                                       solicitations, advertising, or offers of                 includes subsidiaries 18 because only
                                             ‘‘appropriate Federal banking agency.’’                                                                            subsidiaries that are selling insurance
                                             As a result, when the FDIC acts as the                    insurance products by depository
                                                                                                       institutions 6 or persons engaged in                     products or annuities at an office of the
                                             designated ‘‘Appropriate Federal                                                                                   institution or acting on behalf of the
                                             Banking Agency’’ (or under similar                        these activities at an office of the
                                                                                                                                                                depository institution as defined in the
                                             terminology) for State savings                            institution or on behalf of the
                                             associations, as it does here, the FDIC is                institution.7 Section 47 directs the FDIC,                 10 65  FR 75822 (Dec. 4, 2000).
                                             authorized to issue, modify and rescind                   the OTS, the OCC, and the FRB                              11 12  U.S.C. 1831x(a)(1).
                                             regulations involving such associations,                  (collectively the ‘‘Federal banking                         12 12 U.S.C. 1831x(a)(3).

                                             as well as for State nonmember banks                      agencies’’) to include provisions                           13 65 FR 75822 (Dec. 4, 2000).

                                             and insured branches of foreign banks.                    specifically relating to sales practices,                   14 65 FR 75822, 75824 (Dec. 4, 2000). A ‘‘covered


                                                As noted, on June 14, 2011, pursuant                   disclosures and advertising, the                         person’’ or ‘‘you’’ means ‘‘any depository institution
                                                                                                       physical separation of banking and                       or any other person selling, soliciting, advertising,
                                             to this authority, the FDIC’s Board of                                                                             or offering insurance products or annuities to a
                                             Directors reissued and redesignated                       nonbanking activities, and domestic                      consumer at an office of the institution or on behalf
                                             certain transferring regulations of the                   violence discrimination.8 On December                    of the institution. A ‘covered person’ includes any
                                             former OTS. These transferred OTS                         4, 2000, pursuant to section 305 of the                  person, including a subsidiary or other affiliate, if
                                                                                                       GLB Act,9 the Federal banking agencies                   that person or one of its employees sells, solicits,
                                             regulations were published as new FDIC                                                                             advertises, or offers insurance products or annuities
                                             regulations in the Federal Register on                                                                             at an office of an institution or on behalf of an
                                                                                                         4 Gramm-Leach-Bliley Act, Public Law 106–102,
                                             August 5, 2011.3 When it republished                                                                               institution. 65 FR 75824 (Dec. 4, 2000). See also 12
                                                                                                       113 Stat. 1338 (1999).                                   CFR 343.20(j)(1) and 12 CFR 390.181.
                                             the transferred OTS regulations as new                      5 12 U.S.C. 1831x.                                        15 Bank means an FDIC-insured, state-chartered
                                             FDIC regulations, the FDIC specifically                     6 A ‘‘depository institution’’ in this context means   commercial or savings bank that is not a member
                                             noted that its staff would evaluate the
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                                                                                                       a national bank in the case of institutions              of the Federal Reserve System and for which the
                                             transferred OTS rules and might later                     supervised by the OCC, a State member bank in the        FDIC is the appropriate federal banking agency
                                             recommend incorporating the                               case of the FRB, a State nonmember bank in the           pursuant to section 3(q) of the Federal Deposit
                                                                                                       case of the FDIC, and a savings association in the       Insurance Act (12 U.S.C. 1813(q)). 12 CFR
                                             transferred OTS regulations into other                    case of the OTS. 65 FR 75822 fn. 1 (Dec. 4, 2000).       343.20(b).
                                                                                                         7 12 U.S.C. 1831x(a)(1)(A).                               16 12 CFR 343.10.
                                               2 76   FR 39247 (July 6, 2011).                           8 12 U.S.C. 1831x.                                        17 12 CFR 390.180(a)(1), (2).
                                               3 76   FR 47652 (Aug. 5, 2011).                           9 12 U.S.C. 1831x(a)(3).                                  18 See 65 FR 75822, 75823 (Dec. 4, 2000).




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                                                                  Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations                                           13845

                                             rules would be subject to the                           part 536 to FDIC’s part 390, subpart I,                of the Federal Deposit Insurance Act (12
                                             requirements of the rules.19 The OTS                    only the authority over State savings                  U.S.C. 1813(b)(3));’’ (5) transfer an
                                             regulation specifically states that its                 associations and their subsidiaries and                anticoercion and antitying provision
                                             regulation applies to subsidiaries of a                 other affiliates was transferred to the                from part 390, subpart I that is
                                             State savings association only to the                   FDIC for purposes of this rule.26 The                  applicable to State savings associations
                                             extent that it sells, solicits, advertises, or          FRB currently has jurisdiction over the                to part 343; and (6) make conforming
                                             offers insurance products or annuities at               regulation and supervision of consumer                 technical edits throughout, including
                                             an office of a State savings association                protections in connection with retail                  replacing the term ‘‘institution’’ in place
                                             or on behalf of a State savings                         insurance sales practices as it applies to             of ‘‘bank’’ throughout the rule where
                                             association.20 This OTS provision will                  affiliates, including savings and loan                 necessary.
                                             not be carried over to the FDIC’s part                  holding companies of State savings                        Under the NPR, oversight of consumer
                                             343 because it is redundant and                         associations.27 For this reason, the                   protection in sales of insurance in part
                                             unnecessary, since the FDIC scope                       existing references to affiliates in part              343 would apply to all FDIC-supervised
                                             provision already includes subsidiaries                 390, subpart I, are not transferred to part            institutions, including State savings
                                             within its definition.21 The rule                       343 of the FDIC rules.                                 associations, and part 390, subpart I,
                                             specifically states that a covered person                 After careful comparison of the FDIC’s               would be removed because it is largely
                                             (or you) includes any person including                  part 343 with the transferred OTS rule                 redundant of the rules found in part
                                             a subsidiary or other affiliate if that                 in part 390, subpart I, the FDIC has                   343. Rescinding part 390, subpart I,
                                             person or one of its employees sells,                   concluded that the transferred OTS                     would serve to streamline the FDIC’s
                                             solicits, advertises, or offers insurance               rules governing consumer protection in                 rules and eliminate unnecessary
                                             products or annuities at an office of an                sales of insurance are substantively                   regulations.
                                             institution or on behalf of an                          redundant. Based on the foregoing, the
                                                                                                                                                            III. Comments
                                             institution.22                                          FDIC is adopting a final rule to rescind
                                                Accordingly, the portions of the OTS                 and remove from the Code of Federal                       The FDIC issued the NPR with a 60-
                                             regulations that applied to State savings               Regulations the transferred OTS rules                  day comment period which closed on
                                             associations, their subsidiaries and their              located at part 390, subpart I, and to                 January 20, 2017. The FDIC received no
                                             affiliates, originally codified at 12 CFR               make technical and conforming changes                  comments on its Proposed Rule. The
                                             part 536 and subsequently transferred to                to part 343 to incorporate State savings               final rule (‘‘Final Rule’’) is adopted as
                                             FDIC’s part 390, subpart I, are                         associations.                                          proposed without changes.
                                             substantively similar to the current                    II. Proposed Rule                                      IV. Explanation of the Final Rule
                                             FDIC regulations codified at 12 CFR part
                                                                                                        The functions of the former OTS that                   As discussed in the NPR, part 390,
                                             343. By amending part 343 to
                                                                                                     were transferred to the FDIC, section                  subpart I is substantively the same as
                                             encompass State savings associations
                                                                                                     316(b)(3) of the Dodd-Frank Act, 12                    the requirements in part 343 and
                                             and rescinding part 390, subpart I, the
                                                                                                     U.S.C. 5414(b)(3), in pertinent part,                  therefore is redundant. The Final Rule
                                             FDIC will streamline its regulations and
                                                                                                     provide that the former OTS’s                          removes and rescinds 12 CFR part 390,
                                             reduce redundancy.
                                                Although the former OTS rule and                     regulations will be enforceable by the                 subpart I in its entirety. This will serve
                                             part 390, subpart I, covers savings and                 FDIC until they are modified,                          to streamline the FDIC’s rules and
                                             loan holding companies that are                         terminated, set aside, or superseded in                eliminate unnecessary regulation.
                                                                                                     accordance with applicable law. After                     Consistent with the Proposed Rule,
                                             affiliated with savings associations in
                                                                                                     reviewing the rules currently found in                 the Final Rule also amends the scope of
                                             addition to savings associations, the
                                                                                                     part 390, subpart I, on November 15,                   part 343 to include State savings
                                             FDIC does not supervise savings and
                                                                                                     2016 the FDIC published a Notice of                    associations and their subsidiaries. The
                                             loan or bank holding companies for
                                                                                                     Proposed Rulemaking (‘‘NPR’’ or                        modified scope conforms to and reflects
                                             purposes of this rule. Section 312 of the
                                                                                                     ‘‘Proposed Rule’’) to (1) rescind part                 the scope of FDIC’s current supervisory
                                             Dodd-Frank Act 23 divides and transfers
                                                                                                     390, subpart I, in its entirety; (2) modify            responsibilities as the appropriate
                                             the functions of the former OTS to the
                                                                                                     to the scope of part 343 to include State              Federal banking agency for State savings
                                             FDIC, OCC, and FRB by amending
                                                                                                     savings associations and their                         associations. The Final Rule also deletes
                                             section 1813(q) of the FDI Act.
                                                                                                     subsidiaries to conform to and reflect                 the definition of ‘‘bank’’ and replaces it
                                             Specifically, section 312 transfers the
                                                                                                     the scope of FDIC’s current supervisory                with a definition of ‘‘FDIC-supervised
                                             former OTS’s power to regulate State
                                                                                                     responsibilities as the appropriate                    insured depository institution or
                                             savings associations to the FDIC, while
                                                                                                     Federal banking agency for State savings               institution’’ defined as ‘‘any State
                                             it transfers the power to regulate savings
                                                                                                     associations; (3) delete the definition of             nonmember insured bank or State
                                             and loan holding companies to the
                                                                                                     ‘‘bank’’ and replace it with a definition              savings association for which the
                                             FRB.24 As a result, whereas the former
                                                                                                     of ‘‘FDIC-supervised insured depository                Federal Deposit Insurance Corporation
                                             OTS part 536 applied to savings
                                                                                                     institution or institution’’, which means              is the appropriate Federal banking
                                             associations, their subsidiaries and their
                                                                                                     ‘‘any State nonmember insured bank or                  agency pursuant to section 3(q) of the
                                             affiliates, including savings and loan
                                                                                                     State savings association for which the                Federal Deposit Insurance Act (12
                                             holding companies,25 upon transfer of
                                                                                                     Federal Deposit Insurance Corporation                  U.S.C. 1813(q)).’’ As in the Proposed
                                               19 65 FR 75822, 75823 (Dec. 4, 2000) (footnote        is the appropriate Federal banking                     Rule, the Final Rule adds a new
                                             omitted).                                               agency pursuant to section 3(q) of the                 subsection (i), which would define
                                               20 12 CFR 390.180(b).
                                                                                                     Federal Deposit Insurance Act (12                      ‘‘State savings association’’ as ‘‘having
                                                                                                                                                            the same meaning as in section 3(b)(3)
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                                               21 12 CFR 343.10.
                                                                                                     U.S.C. 1813(q));’’ (4) add a new
                                               22 65 FR 75822, 75824 (Dec. 4, 2000) (italics
                                                                                                     subsection (i), which would define                     of the Federal Deposit Insurance Act (12
                                             added).                                                                                                        U.S.C. 1813(b)(3)).’’ The Final Rule, as
                                               23 Dodd-Frank Wall Street Reform and Consumer
                                                                                                     ‘‘State savings association’’ as having
                                             Protection Act, Public Law 111–203, 124 Stat. 1376      ‘‘the same meaning as in section 3(b)(3)               the NPR, transfers an anticoercion and
                                             (2010) (codified at 12 U.S.C. 5412).                                                                           antitying provision that is applicable to
                                               24 12 U.S.C. 5412.                                      26 12   CFR 390.180.                                 State savings associations from part 390,
                                               25 12 CFR 536.1.                                        27 12   CFR part 208, subpart H.                     subpart I, to part 343. As in the


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                                             13846                Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations

                                             Proposed Rule, the Final Rule also                      Rule does not revise any existing, or                 Final Rule would not have a significant
                                             makes conforming technical edits                        create any new information collection                 impact on a substantial number of small
                                             throughout, including using the term                    pursuant to the PRA. Consequently, no                 entities.
                                             ‘‘institution’’ in place of ‘‘bank’’                    submission will be made to the Office
                                                                                                                                                           C. Small Business Regulatory
                                             throughout the rule where necessary.                    of Management and Budget for review.
                                                                                                                                                           Enforcement Fairness Act
                                                                                                     The FDIC requested comment on its
                                             V. Regulatory Process                                   conclusion that this aspect of the NPR                  The OMB has determined that the
                                             A. The Paperwork Reduction Act                          did not create a new or revise and                    Final Rule is not a ‘‘major rule’’ within
                                                                                                     existing information collection. No                   the meaning of the Small Business
                                                In accordance with the requirements
                                                                                                     comments on this issue were received.                 Regulatory Enforcement Fairness Act of
                                             of the Paperwork Reduction Act
                                                                                                                                                           1996 (‘‘SBREFA’’), 5 U.S.C. 801 et seq.
                                             (‘‘PRA’’) of 1995, 44 U.S.C. 3501–3521,                 B. The Regulatory Flexibility Act                     As required by SBREFA, the FDIC will
                                             the FDIC may not conduct or sponsor,                       The Regulatory Flexibility Act                     submit the Final Rule and other
                                             and the respondent is not required to                   (‘‘RFA’’), requires that, in connection               appropriate reports to Congress and the
                                             respond to, an information collection                   with a final rulemaking, an agency                    Government Accountability Office for
                                             unless it displays a currently valid                    prepare and make available for public                 review.
                                             Office of Management and Budget                         comment a final regulatory flexibility
                                             (‘‘OMB’’) control number.                               analysis that describes the impact of the             D. Plain Language
                                                The Final Rule would rescind and                     proposed rule on small entities (defined                 Section 722 of the GLB Act, codified
                                             remove from the FDIC regulations part                   in regulations promulgated by the Small               at 12 U.S.C. 4809, requires each Federal
                                             390, subpart I. Part 390, subpart I was                 Business Administration to include                    banking agency to use plain language in
                                             transferred with only nominal changes                   banking organizations with total assets               all of its proposed and final rules
                                             to the FDIC from the OTS when the OTS                   of less than or equal to $550 million).28             published after January 1, 2000. In the
                                             was abolished by title III of the Dodd-                 However, a regulatory flexibility                     NPR, the FDIC invited comments on
                                             Frank Act and is substantively similar to               analysis is not required if the agency                whether the NPR was clearly stated and
                                             the FDIC’s existing part 343 regarding                  certifies that the rule will not have a               effectively organized, and how the FDIC
                                             consumer protection in the sales of                     significant economic impact on a                      might make it easier to understand. No
                                             insurance by depository institutions.                   substantial number of small entities,                 comments on this issue were received.
                                             The information collections contained                   and publishes its certification and a                 Although the FDIC did not receive any
                                             in part 343 are cleared by OMB under                    short explanatory statement in the                    comments, the FDIC sought to present
                                             the FDIC’s Insurance Sales Consumer                     Federal Register together with the rule.              the Final Rule in a simple and
                                             Protections information collection                      For the reasons provided below, the                   straightforward manner.
                                             (OMB Control No. 3064–0140). The                        FDIC certifies that the Final Rule would
                                             FDIC reviewed its burden estimates for                                                                        E. The Economic Growth and Regulatory
                                                                                                     not have a significant economic impact
                                             the collection at the time it assumed                                                                         Paperwork Reduction Act
                                                                                                     on a substantial number of small
                                             responsibility for supervision of State                 entities.                                                Under section 2222 of the Economic
                                             savings associations transferred from the                  As discussed in the NPR, Part 390,                 Growth and Regulatory Paperwork
                                             OTS and determined that no changes to                   subpart I, was transferred to the FDIC                Reduction Act of 1996 (‘‘EGRPRA’’), the
                                             the burden estimates were necessary.                    from OTS part 536, which governed                     FDIC is required to review all of its
                                             The Final Rule would not revise the                     consumer protections for depository                   regulations, at least once every 10 years,
                                             Insurance Sales Consumer Protections                    institution sales of insurance. OTS part              in order to identify any outdated or
                                             information collection under OMB                        536 had been in effect since 2001 and                 otherwise unnecessary regulations
                                             Control No. 3064–0140 or create any                     all State savings associations were                   imposed on insured institutions.30 The
                                             new information collection pursuant to                  required to comply with it. Because it is             FDIC, along with the other federal
                                             the PRA. Consequently, no submission                    substantially the same as existing part               banking agencies, submitted a Joint
                                             will be made to the Office of                           343 of the FDIC’s rules and therefore                 Report to Congress on March 21, 2017
                                             Management and Budget for review. In                    redundant, the FDIC is rescinding and                 (‘‘EGRPRA Report’’) discussing how the
                                             the Proposed Rule, the FDIC requested                   removing the transferred regulation now               review was conducted, what has been
                                             comment on its conclusion that the NPR                  located in part 390, subpart I, as                    done to date to address regulatory
                                             did not revise the Insurance Sales                      proposed in the NPR. As a result, all                 burden, and further measures we will
                                             Consumer Protections information                        FDIC-supervised institutions—including                take to address issues that were
                                             collection 3064–0140. No comments                       State savings associations and their                  identified. As noted in the EGRPRA
                                             were received.                                          subsidiaries—would be required to                     Report, the FDIC is continuing to
                                                The Final Rule, as the Proposed Rule,                comply with part 343 if they are selling,             streamline and clarify its regulations
                                             (1) amends part 343 to include State                    soliciting, advertising, or offering any              through the OTS rule integration
                                             savings associations and their                          insurance product. Because all State                  process. By removing outdated or
                                             subsidiaries within its scope; and (2)                  savings associations and their                        unnecessary regulations, such as part
                                             defines ‘‘FDIC-supervised insured                       subsidiaries have been required to                    390, subpart I, and modifying part 343,
                                             depository institution or institution’’                 comply with substantially similar                     this rule complements other actions the
                                             and ‘‘State savings association;’’ (3)                  consumer protection rules if they                     FDIC has taken, separately and with the
                                             transfers an anticoercion and antitying                 engaged in sales of insurance since                   other federal banking agencies, to
                                             provision from part 390, subpart I, that                2001,29 the Final Rule would not place                further the EGRPRA mandate.
                                             is applicable to State savings
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                                                                                                     additional requirements or burdens on                 E. Riegle Community Development and
                                             associations to part 343; and (4) makes                 any State savings association
                                             conforming technical edits throughout.                                                                        Regulatory Improvement Act of 1994
                                                                                                     irrespective of its size. Therefore, the
                                             These measures clarify that State                                                                               The Riegle Community Development
                                             savings associations, as well as State                    28 5
                                                                                                          U.S.C. 601 et seq.                               and Regulatory Improvement Act of
                                             nonmember banks, are subject to part                      29 65
                                                                                                           FR 75822 (Dec. 4, 2000). The final rule
                                             343. With respect to part 343, the Final                became effective April 1, 2001.                         30 Public   Law 104–208, 110 Stat. 3009 (1996).



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                                                                      Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations                                        13847

                                             1994 (RCDRIA) requires the FDIC, in                       sales practices, solicitations,                       State nonmember insured bank or State
                                             determining the effective date and                        advertising, or offers of any insurance               savings association for which the
                                             administrative compliance requirements                    product or annuity to a consumer by:                  Federal Deposit Insurance Corporation
                                             for new regulations that impose                             (a) Any institution; or                             is the appropriate Federal banking
                                             additional reporting, disclosure or other                   (b) Any other person that is engaged                agency pursuant to section 3(q) of the
                                             requirements on insured depository                        in such activities at an office of the                Federal Deposit Insurance Act (12
                                             institutions to consider, consistent with                 institution or on behalf of the                       U.S.C. 1813(q)).
                                             the principles of safety and soundness                    institution.                                             Office means the premises of an
                                             and the public interest, any                              § 343.20    Definitions.
                                                                                                                                                             institution where retail deposits are
                                             administrative burdens that such                                                                                accepted from the public.
                                                                                                          As used in this part:                                 State savings association has the same
                                             regulations would place on depository                        Affiliate means a company that
                                             institutions, including small depository                                                                        meaning as in section (3)(b)(3) of the
                                                                                                       controls, is controlled by, or is under
                                             institutions, as well as the benefits of                                                                        Federal Deposit Insurance Act, 12
                                                                                                       common control with another company.
                                             such regulations.                                            Company means any corporation,                     U.S.C. 1813(b)(3).
                                               In addition, new regulations and                                                                                 Subsidiary has the same meaning as
                                                                                                       partnership, business trust, association
                                             amendments to regulations that impose                     or similar organization, or any other                 in section 3(w)(4) of the Federal Deposit
                                             additional reporting, disclosures or                      trust (unless by its terms the trust must             Insurance Act (12 U.S.C. 1813(w)(4)).
                                             other new requirements on insured                                                                                  You—(1) Means:
                                                                                                       terminate within twenty-five years or
                                             depository institutions generally must                                                                             (i) An institution; or
                                                                                                       not later than twenty-one years and ten                  (ii) Any other person only when the
                                             take effect on the first day of the                       months after the death of individuals
                                             calendar quarter that begins on or after                                                                        person sells, solicits, advertises, or
                                                                                                       living on the effective date of the trust).
                                             the date on which the regulations are                                                                           offers an insurance product or annuity
                                                                                                       It does not include any corporation the
                                             published in final form.31 The Final                                                                            to a consumer at an office of the
                                                                                                       majority of the shares of which are
                                             Rule has no new reporting or other new                                                                          institution or on behalf of an institution.
                                                                                                       owned by the United States or by any                     (2) For purposes of this definition,
                                             requirements on insured depository                        State, or a qualified family partnership,
                                             institutions. Therefore, the final rule is                                                                      activities on behalf of an institution
                                                                                                       as defined in section 2(o)(10) of the
                                             not subject to the requirements of the                                                                          include activities where a person,
                                                                                                       Bank Holding Company Act of 1956, as
                                             statute.                                                                                                        whether at an office of the institution or
                                                                                                       amended (12 U.S.C. 1841(o)(10)).
                                                                                                          Consumer means an individual who                   at another location sells, solicits,
                                             List of Subjects                                                                                                advertises, or offers an insurance
                                                                                                       purchases, applies to purchase, or is
                                             12 CFR Part 343                                           solicited to purchase from you                        product or annuity and at least one of
                                                                                                       insurance products or annuities                       the following applies:
                                               Banks, banking; Consumer protection                                                                              (i) The person represents to a
                                             in sales of insurance; Savings                            primarily for personal, family, or
                                                                                                       household purposes.                                   consumer that the sale, solicitation,
                                             associations.                                                                                                   advertisement, or offer of any insurance
                                                                                                          Control of a company has the same
                                             12 CFR Part 390                                           meaning as in section 3(w)(5) of the                  product or annuity is by or on behalf of
                                                                                                       Federal Deposit Insurance Act (12                     the institution;
                                               Consumer protection in sales of
                                                                                                       U.S.C. 1813(w)(5)).                                      (ii) The institution refers a consumer
                                             insurance.
                                                                                                          Domestic violence means the                        to a seller of insurance products or
                                             Authority and Issuance                                    occurrence of one or more of the                      annuities and the institution has a
                                                For the reasons stated in the                          following acts by a current or former                 contractual arrangement to receive
                                             preamble, the Board of Directors of the                   family member, household member,                      commissions or fees derived from a sale
                                             Federal Deposit Insurance Corporation                     intimate partner, or caretaker:                       of an insurance product or annuity
                                             is amending 12 CFR parts 343 and 390                         (1) Attempting to cause or causing or              resulting from that referral; or
                                             as follows:                                               threatening another person physical                      (iii) Documents evidencing the sale,
                                                                                                       harm, severe emotional distress,                      solicitation, advertising, or offer of an
                                             ■ 1. Revise part 343 to read as follows:
                                                                                                       psychological trauma, rape, or sexual                 insurance product or annuity identify or
                                             PART 343—CONSUMER PROTECTION                              assault;                                              refer to the institution.
                                             IN SALES OF INSURANCE                                        (2) Engaging in a course of conduct or
                                                                                                                                                             § 343.30   Prohibited practices.
                                                                                                       repeatedly committing acts toward
                                             Sec.                                                      another person, including following the                  (a) Anticoercion and antitying rules.
                                             343.10 Purpose and scope.                                 person without proper authority, under                You may not engage in any practice that
                                             343.20 Definitions.                                       circumstances that place the person in                would lead a consumer to believe that
                                             343.30 Prohibited practices.                                                                                    an extension of credit, in violation of
                                                                                                       reasonable fear of bodily injury or
                                             343.40 What you must disclose.                                                                                  section 106(b) of the Bank Holding
                                             343.50 Where insurance activities may take                physical harm;
                                                                                                          (3) Subjecting another person to false             Company Act Amendments of 1970 (12
                                                  place.
                                             343.60 Qualification and licensing                        imprisonment; or                                      U.S.C. 1972) in the case of a State
                                                  requirements for insurance sales                        (4) Attempting to cause or causing                 nonmember insured bank and a foreign
                                                  personnel.                                           damage to property so as to intimidate                bank having an insured branch, or in
                                             Appendix A to Part 343—Consumer                           or attempt to control the behavior of                 violation of section 5(q) of the Home
                                                  Grievance Process                                    another person.                                       Owners’ Loan Act (12 U.S.C. 1464(q)) in
                                               Authority: 12 U.S.C. 1819 (Seventh and                     Electronic media includes any means                the case of a State savings association,
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                                             Tenth); 12 U.S.C. 1831x.                                  for transmitting messages electronically              is conditional upon either:
                                                                                                       between you and a consumer in a format                   (1) The purchase of an insurance
                                             § 343.10      Purpose and scope.                          that allows visual text to be displayed               product or annuity from the institution
                                               This part establishes consumer                          on equipment, for example, a personal                 or any of its affiliates; or
                                             protections in connection with retail                     computer monitor.                                        (2) An agreement by the consumer not
                                                                                                          FDIC-supervised insured depository                 to obtain, or a prohibition on the
                                               31 12   U.S.C. 4802.                                    institution or institution means any                  consumer from obtaining, an insurance


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                                             13848                Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations

                                             product or annuity from an unaffiliated                 institution, or (if applicable) an affiliate          through electronic media instead of on
                                             entity.                                                 of the institution; and                               paper, if the consumer affirmatively
                                                (b) Prohibition on misrepresentations                   (3) In the case of an insurance product            consents to receiving the disclosures
                                             generally. You may not engage in any                    or annuity that involves an investment                electronically and if the disclosures are
                                             practice or use any advertisement at any                risk, there is investment risk associated             provided in a format that the consumer
                                             office of, or on behalf of, the institution             with the product, including the possible              may retain or obtain later, for example,
                                             or a subsidiary of the institution that                 loss of value.                                        by printing or storing electronically
                                             could mislead any person or otherwise                      (b) Credit disclosure. In the case of an           (such as by downloading).
                                             cause a reasonable person to reach an                   application for credit in connection                     (ii) Any disclosure required by
                                             erroneous belief with respect to:                       with which an insurance product or                    paragraph (a) or (b) of this section that
                                                (1) The fact that an insurance product               annuity is solicited, offered, or sold, you           is provided by electronic media is not
                                             or annuity sold or offered for sale by                  must disclose that the institution may                required to be provided orally.
                                             you or any subsidiary of the institution                not condition an extension of credit on                  (5) Disclosures must be readily
                                             is not backed by the Federal government                 either:                                               understandable. The disclosures
                                             or the institution, or the fact that the                   (1) The consumer’s purchase of an                  provided shall be conspicuous, simple,
                                             insurance product or annuity is not                     insurance product or annuity from the                 direct, readily understandable, and
                                             insured by the Federal Deposit                          institution or any of its affiliates; or              designed to call attention to the nature
                                             Insurance Corporation;                                     (2) The consumer’s agreement not to                and significance of the information
                                                (2) In the case of an insurance product              obtain, or a prohibition on the consumer              provided. For instance, you may use the
                                             or annuity that involves investment risk,               from obtaining, an insurance product or               following disclosures in visual media,
                                             the fact that there is an investment risk,              annuity from an unaffiliated entity.                  such as television broadcasting, ATM
                                             including the potential that principal                     (c) Timing and method of                           screens, billboards, signs, posters and
                                             may be lost and that the product may                    disclosures—(1) In general. The                       written advertisements and promotional
                                             decline in value; or                                    disclosures required by paragraph (a) of              materials, as appropriate and consistent
                                                (3) In the case of an institution or                 this section must be provided orally and              with paragraphs (a) and (b) of this
                                             subsidiary of the institution at which                  in writing before the completion of the               section:
                                             insurance products or annuities are sold                initial sale of an insurance product or                  (i) ‘‘NOT A DEPOSIT’’
                                             or offered for sale, the fact that:                     annuity to a consumer. The disclosure                    (ii) ‘‘NOT FDIC-INSURED’’
                                                (i) The approval of an extension of                  required by paragraph (b) of this section                (iii) ‘‘NOT INSURED BY ANY
                                             credit to a consumer by the institution                 must be made orally and in writing at                 FEDERAL GOVERNMENT AGENCY’’
                                             or subsidiary may not be conditioned on                 the time the consumer applies for an                     (iv) ‘‘NOT GUARANTEED BY THE
                                             the purchase of an insurance product or                 extension of credit in connection with                INSTITUTION’’
                                             annuity by the consumer from the                        which an insurance product or annuity                    (v) ‘‘MAY GO DOWN IN VALUE’’
                                             institution or a subsidiary of the                      is solicited, offered, or sold.                          (6) Disclosures must be meaningful.
                                             institution; and                                           (2) Exception for transactions by mail.            (i) You must provide the disclosures
                                                (ii) The consumer is free to purchase                If a sale of an insurance product or                  required by paragraphs (a) and (b) of
                                             the insurance product or annuity from                   annuity is conducted by mail, you are                 this section in a meaningful form.
                                             another source.                                         not required to make the oral                         Examples of the types of methods that
                                                (c) Prohibition on domestic violence                 disclosures required by paragraph (a) of              could call attention to the nature and
                                             discrimination. You may not sell or                     this section. If you take an application              significance of the information provided
                                             offer for sale, as principal, agent, or                 for credit by mail, you are not required              include:
                                             broker, any life or health insurance                    to make the oral disclosure required by                  (A) A plain-language heading to call
                                             product if the status of the applicant or               paragraph (b) of this section.                        attention to the disclosures;
                                             insured as a victim of domestic violence                   (3) Exception for transactions by                     (B) A typeface and type size that are
                                             or as a provider of services to victims of              telephone. If a sale of an insurance                  easy to read;
                                             domestic violence is considered as a                    product or annuity is conducted by                       (C) Wide margins and ample line
                                             criterion in any decision with regard to                telephone, you may provide the written                spacing;
                                             insurance underwriting, pricing,                        disclosures required by paragraph (a) of                 (D) Boldface or italics for key words;
                                             renewal, or scope of coverage of such                   this section by mail within 3 business                and
                                             product, or with regard to the payment                  days beginning on the first business day                 (E) Distinctive type size, style, and
                                             of insurance claims on such product,                    after the sale, excluding Sundays and                 graphic devices, such as shading or
                                             except as required or expressly                         the legal public holidays specified in 5              sidebars, when the disclosures are
                                             permitted under State law.                              U.S.C. 6103(a). If you take an                        combined with other information.
                                                                                                     application for credit by telephone, you                 (ii) You have not provided the
                                             § 343.40   What you must disclose.                      may provide the written disclosure                    disclosures in a meaningful form if you
                                                (a) Insurance disclosures. In                        required by paragraph (b) of this section             merely state to the consumer that the
                                             connection with the initial purchase of                 by mail, provided you mail it to the                  required disclosures are available in
                                             an insurance product or annuity by a                    consumer within three days beginning                  printed material, but do not provide the
                                             consumer from you, you must disclose                    the first business day after the                      printed material when required and do
                                             to the consumer, except to the extent the               application is taken, excluding Sundays               not orally disclose the information to
                                             disclosure would not be accurate, that:                 and the legal public holidays specified               the consumer when required.
                                                (1) The insurance product or annuity                 in 5 U.S.C. 6103(a).                                     (iii) With respect to those disclosures
                                                                                                        (4) Electronic form of disclosures. (i)            made through electronic media for
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                                             is not a deposit or other obligation of,
                                             or guaranteed by, the institution or an                 Subject to the requirements of section                which paper or oral disclosures are not
                                             affiliate of the institution;                           101(c) of the Electronic Signatures in                required, the disclosures are not
                                                (2) The insurance product or annuity                 Global and National Commerce Act (12                  meaningfully provided if the consumer
                                             is not insured by the Federal Deposit                   U.S.C. 7001(c)), you may provide the                  may bypass the visual text of the
                                             Insurance Corporation (FDIC) or any                     written disclosures required by                       disclosures before purchasing an
                                             other agency of the United States, the                  paragraph (a) and (b) of this section                 insurance product or annuity.


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                                                                  Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Rules and Regulations                                        13849

                                                (7) Consumer acknowledgment. You                     insurance product or annuity in any                   SUMMARY:   The Bureau of Industry and
                                             must obtain from the consumer, at the                   part of its office or on its behalf, unless           Security (BIS) publishes this final rule
                                             time a consumer receives the                            the person is at all times appropriately              to amend the Export Administration
                                             disclosures required under paragraph (a)                qualified and licensed under applicable               Regulations (EAR) to implement the
                                             or (b) of this section, or at the time of               State insurance licensing standards with              recommendations presented at the
                                             the initial purchase by the consumer of                 regard to the specific products being                 February 2017 Australia Group (AG)
                                             an insurance product or annuity, a                      sold or recommended.                                  Intersessional Implementation Meeting,
                                             written acknowledgment by the                                                                                 and later adopted pursuant to the AG
                                             consumer that the consumer received                     Appendix A to Part 343—Consumer                       silent approval procedure, and the
                                             the disclosures. You may permit a                       Grievance Process                                     recommendations made at the June 2017
                                             consumer to acknowledge receipt of the                    Any consumer who believes that any                  AG Plenary Implementation Meeting
                                             disclosures electronically or in paper                  institution or any other person selling,              and adopted by the AG Plenary. This
                                             form. If the disclosures required under                 soliciting, advertising, or offering                  rule amends the following Export
                                             paragraph (a) or (b) of this section are                insurance products or annuities to the                Control Classification Numbers (ECCNs)
                                             provided in connection with a                           consumer at an office of the institution              on the Commerce Control List (CCL) to
                                             transaction that is conducted by                        or on behalf of the institution has                   reflect the February 2017 Intersessional
                                             telephone, you must:                                    violated the requirements of this part                Implementation Meeting
                                                (i) Obtain an oral acknowledgment of                 should contact the Division of Depositor              recommendations that were adopted by
                                             receipt of the disclosures and maintain                 and Consumer Protection, Consumer                     the AG: ECCN 2B350 (by adding certain
                                             sufficient documentation to show that                   Response Center, Federal Deposit                      prefabricated repair assemblies, and
                                             the acknowledgment was given; and                       Insurance Corporation, at the following               specially designed components therefor,
                                                (ii) Make reasonable efforts to obtain               address: 1100 Walnut Street, Box #11,                 that are designed for attachment to
                                             a written acknowledgment from the                       Kansas City, MO 64106, or telephone 1–                glass-lined reaction vessels, reactors,
                                             consumer.                                               877–275–3342, or FDIC Electronic                      storage tanks, containers or receivers
                                                (d) Advertisements and other                         Customer Assistance Form at http://                   controlled by this entry); ECCN 2B351
                                             promotional material for insurance                      www5.fdic.gov/starsmail/index.asp.                    (by clarifying that toxic gas monitoring
                                             products or annuities. The disclosures                                                                        equipment includes toxic gas monitors
                                             described in paragraph (a) of this                      PART 390—REGULATIONS                                  and monitoring systems, as well as their
                                             section are required in advertisements                  TRANSFERRED FROM THE OFFICE OF                        dedicated detecting components); and
                                             and promotional material for insurance                  THRIFT SUPERVISION                                    ECCN 2B352 (by adding certain nucleic
                                             products or annuities unless the                                                                              acid assemblers and synthesizers to this
                                             advertisements and promotional                          ■  2. The authority citation for part 390             entry and clarifying how the capacity of
                                             materials are of a general nature                       is revised to read as follows:                        certain fermenters should be measured
                                             describing or listing the services or                       Authority: 12 U.S.C. 1831y.                       for purposes of determining whether
                                             products offered by the institution.                                                                          they are controlled under this entry).
                                             § 343.50 Where insurance activities may
                                                                                                     Subpart I—[Removed and Reserved]                         Consistent with the June 2017 AG
                                             take place.                                                                                                   Plenary Implementation Meeting
                                                                                                     ■ 3. Remove and reserve subpart I,                    recommendations that were adopted by
                                                (a) General rule. An institution must,               consisting of §§ 390.180 through
                                             to the extent practicable, keep the area                                                                      the AG, this rule amends the following
                                                                                                     390.185, and appendix A.                              ECCNs on the CCL: ECCN 1C353 (to
                                             where the institution conducts
                                             transactions involving insurance                          Dated at Washington, DC, on March 20,               clarify that genetically modified
                                                                                                     2018.                                                 organisms include organisms in which
                                             products or annuities physically
                                             segregated from areas where retail                        By order of the Board of Directors.                 the nucleic acid sequences have been
                                             deposits are routinely accepted from the                Federal Deposit Insurance Corporation.                created or altered by deliberate
                                             general public, identify the areas where                Valerie J. Best,                                      molecular manipulation and that
                                             insurance product or annuity sales                      Assistant Executive Secretary.                        inactivated organisms containing
                                             activities occur, and clearly delineate                 [FR Doc. 2018–06163 Filed 3–30–18; 8:45 am]           recoverable nucleic acids are considered
                                             and distinguish those areas from the                    BILLING CODE 6714–01–P
                                                                                                                                                           to be genetic elements) and ECCN 1C350
                                             areas where the institution’s retail                                                                          (by adding
                                             deposit-taking activities occur.                                                                              N,N-Diisopropylaminoethanethiol
                                                (b) Referrals. Any person who accepts                                                                      hydrochloride). This rule also corrects
                                                                                                     DEPARTMENT OF COMMERCE                                several typographical errors in a note to
                                             deposits from the public in an area
                                             where such transactions are routinely                   Bureau of Industry and Security                       ECCN 1C351 and updates the advance
                                             conducted in the institution may refer a                                                                      notification requirements in the EAR
                                             consumer who seeks to purchase an                       15 CFR Parts 738, 740, 745 and 774                    that apply to certain exports of
                                             insurance product or annuity to a                                                                             saxitoxin. Finally, this rule amends the
                                             qualified person who sells that product                 [Docket No. 170306234–7234–01]                        EAR to reflect the addition of India as
                                             only if the person making the referral                  RIN 0694–AH37                                         a participating country in the AG.
                                             receives no more than a one-time,                                                                             DATES: This rule is effective April 2,
                                             nominal fee of a fixed dollar amount for                Implementation of the February 2017                   2018.
                                             each referral that does not depend on                   Australia Group (AG) Intersessional                   FOR FURTHER INFORMATION CONTACT:
                                             whether the referral results in a                       Decisions and the June 2017 AG                        Richard P. Duncan, Ph.D., Director,
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                                             transaction.                                            Plenary Understandings; Addition of                   Chemical and Biological Controls
                                             § 343.60 Qualification and licensing
                                                                                                     India to the AG                                       Division, Office of Nonproliferation and
                                             requirements for insurance sales                        AGENCY:  Bureau of Industry and                       Treaty Compliance, Bureau of Industry
                                             personnel.                                              Security, Commerce.                                   and Security, Telephone: (202) 482–
                                               An institution may not permit any                                                                           3343, Email: Richard.Duncan@
                                                                                                     ACTION: Final rule.
                                             person to sell or offer for sale any                                                                          bis.doc.gov.


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Document Created: 2018-11-01 09:08:32
Document Modified: 2018-11-01 09:08:32
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective on May 2, 2018.
ContactMartha L. Ellett, Counsel, Legal Division, (202) 898-6765; John Jackwood, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-3991.
FR Citation83 FR 13843 
RIN Number3064-AE49
CFR Citation12 CFR 343
12 CFR 390
CFR AssociatedBanks; Banking; Consumer Protection in Sales of Insurance; Savings Associations and Consumer Protection in Sales of Insurance

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