FR Doc 03-15088

[Federal Register: June 16, 2003 (Volume 68, Number 115)]
[Proposed Rules]
[Page 35589-35612]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn03-15]

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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Chap. I

[Docket No. 03-10]

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

12 CFR Chap. II

[Docket No. R-1151]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Chap. III

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Chap. V

[No. 2003-20]

Regulatory Publication and Review Under the Economic Growth and
Regulatory Paperwork Reduction Act of 1996

AGENCIES: Office of the Comptroller of the Currency (OCC), Treasury;
Board of Governors of the Federal Reserve System (Board); Federal
Deposit Insurance Corporation (FDIC); and Office of Thrift Supervision
(OTS), Treasury.

ACTION: Notice of regulatory review; request for comments.

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SUMMARY: The OCC, Board, FDIC, and OTS (``we'' or ``the Agencies'') are
beginning a review of our regulations to reduce burden imposed on
insured depository institutions, as required by section 2222 of the
Economic Growth and Regulatory Paperwork Reduction Act of 1996. We have
categorized our regulations for the purpose of the review and propose
to publish 12 categories of regulations for review between now and
2006. The categories, and the regulations that the Agencies consider to
be part of those categories, are detailed below. This review presents a
significant opportunity to consider the possibilities for burden
reduction among groups of similar regulations. We welcome comment on
the categories, the order of review, and all other aspects of the
project in order to maximize its effectiveness.
Today, we are publishing our first in a series of public releases,
comprising three of the categories--``Applications and Reporting,''
``Powers and Activities,'' and ``International Operations''--for public
comment so as to identify outdated, unnecessary, or unduly burdensome
regulatory requirements imposed on insured depository institutions.
Since we will publish a series of releases containing requests for
comment on the remaining categories, it is not recommended that burden
reduction comments be submitted now for any regulations in other
categories.

DATES: Written comments must be received no later than September 15,
2003.

ADDRESSES: Due to delays in paper mail delivery in the Washington area,
commenters may prefer to submit their comments by alternate means.
Comments should be directed to:

OCC: Public Information Room, Office of the Comptroller of the
Currency, 250 E Street, SW., Mailstop 1-5, Washington, DC 20219,
Attention: Docket No. 03-10. Comments will be available for public
inspection and photocopying at the same location. You can make an
appointment to inspect the comments by calling (202) 874-5043.
Facsimiles: Send facsimile transmissions to FAX Number (202) 874-4448.
E-mail: Send e-mails to regs.comments@occ.treas.gov.Board: Comments should refer to Docket No. R-1151 and should be mailed
to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the
Federal Reserve System, 20th Street and Constitution Avenue, NW.,
Washington, DC 20551, or mailed electronically to
regs.comments@federalreserve.gov. Members of the public may inspect
comments in Room MP-500 of the Martin Building between 9 a.m. and 5
p.m. on weekdays in accordance with the Board's Rules Regarding
Availability of Information, 12 CFR part 261.
FDIC: Mail: Written comments should be addressed to Robert E. Feldman,
Executive Secretary, Attention: Comments, Federal Deposit Insurance
Corporation, 550 17th Street, NW., Washington, DC 20429. Delivery:
Comments may be hand delivered to the guard station at the rear of the
550 17th Street Building (located on F Street) on business days between
7 a.m. and 5 p.m. You also may

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electronically mail comments to comments@fdic.gov. Public Inspection:
Comments may be inspected and photocopied in the FDIC Public
Information Center, Room 100, 801 17th Street, NW., Washington, DC
20429, between 9 a.m. and 4:30 p.m. on business days.
OTS: Mail: Send comments to Regulation Comments, Chief Counsel's
Office, Office of Thrift Supervision, 1700 G Street, NW., Washington,
DC 20552, Attention: No.2003-20. Delivery: Hand deliver comments to the
Guard's Desk, East Lobby Entrance, 1700 G Street, NW., from 9 a.m. to 4
p.m. on business days, Attention: Regulation Comments, Chief Counsel's
Office, Attention: No. 2003-20. Facsimiles: Send facsimile
transmissions to FAX Number (202) 906--6518, Attention: No. 2003-20. E-
Mail: Send e-mails to regs.comments@ots.treas.gov, Attention: No. 2003-
20 and include your name and telephone number. Availability of
Comments: OTS will post comments and the related index on the OTS
Internet site at www.ots.treas.gov. In addition, you may inspect
comments at the Public Reading Room, 1700 G Street, NW., by
appointment. To make an appointment for access, call (202) 906-5922,
send an e-mail to public.info@ots.treas.gov, or send a facsimile
transmission to (202) 906-7755. (Please identify the material you would
like to inspect to assist us in serving you.)

FOR FURTHER INFORMATION CONTACT:

OCC: Mark Tenhundfeld, Assistant Director, Legislative and Regulatory
Activities Division, (202) 874-5090; Lee Walzer, Counsel, Legislative
and Regulatory Activities Division, (202) 874-5090, Office of the
Comptroller of the Currency, 250 E St., SW., Washington, DC 20219.
Board: Patricia A. Robinson, Senior Counsel, Legal Division, (202) 452-
3005; Michael J. O'Rourke, Counsel, Legal Division, (202) 452-3288;
David G. Adkins, Supervisory Financial Analyst, Division of Banking
Supervision and Regulation, (202) 452-5259; Federal Reserve Board, 20th
St. and Constitution Ave., NW., Washington, DC 20551.
FDIC: Claude A. Rollin, Special Assistant to the Vice Chairman, (202)
898-8741; Steven D. Fritts, Associate Director, Division of Supervision
and Consumer Protection, (202) 898-3723; Ruth R. Amberg, Senior
Counsel, Legal Division, (202) 898-3736; Thomas Nixon, Senior Attorney,
Legal Division, (202) 898-8766; Federal Deposit Insurance Corporation,
550 17th St., NW., Washington, DC 20429.
OTS: Robyn Dennis, Manager, Thrift Policy, Supervision Policy (202)
906-5751; Karen Osterloh, Special Counsel, Regulations and Legislation
Division, Chief Counsel's Office, (202) 906-6639; Office of Thrift
Supervision, 1700 G Street, NW., Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

I. Introduction

Congress enacted section 2222 of the Economic Growth and Regulatory
Paperwork Reduction Act of 1996 (Pub. L. 104-208, Sept. 30, 1996)
(EGRPRA), as part of an effort to minimize unnecessary government
regulation consistent with safety and soundness, consumer protection,
and other public policy goals. Under section 2222, 12 U.S.C. 3311, the
Agencies,\1\ jointly or individually, must categorize regulations by
type, such as ``consumer regulations'' or ``safety and soundness''
regulations. Once we have established the categories, we must provide
notice and ask for public comment on them. In particular, section 2222
requires that we ask the public to identify areas of the regulations
that are outdated, unnecessary, or unduly burdensome. The Agencies must
issue these publications for comment at regular intervals such that all
of the Agencies' categories of regulations are published for such
comment within a 10 year cycle. The first publication cycle will end in
September 2006. The EGRPRA review supplements and complements the
reviews of regulations that the Agencies conduct under other laws and
their internal policies.
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\1\ The National Credit Union Administration (NCUA) has
participated in the EGRPRA planning process and will separately
issue a request for comment. Since the Federal Financial
Institutions Examination Council (FFIEC) has not issued regulations
that impose burden on insured institutions, we have not separately
captioned the FFIEC in this notice.
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Section 2222 requires a two-part regulatory response. First, the
Agencies must publish in the Federal Register a summary of the comments
received, identifying the significant issues raised and discussing
those issues. Second, the Agencies must ``eliminate unnecessary
regulations to the extent that such action is appropriate.'' The
Agencies may prepare the regulatory response individually or jointly.
Section 2222 further requires the FFIEC to submit a report to the
Congress within 30 days after the Agencies publish the comment summary
and discussion in the Federal Register. This report must summarize any
significant issues raised by the public comments and the relative
merits of those issues. The report also must analyze whether the
appropriate Federal banking agency involved is able to address the
regulatory burdens associated with the issues by regulation, or whether
the burdens must be addressed by legislation.

II. The EGRPRA Review's Special Focus

The regulatory review required by section 2222 provides a
significant opportunity for the public and the Agencies to step back
and look at groups of related regulations and identify possibilities
for streamlining. The EGRPRA review's overall focus on the `forest' of
regulations will, we hope, offer a new perspective in identifying
opportunities to reduce regulatory burden. Of course, reducing
regulatory burden must be consistent with ensuring the continued safety
and soundness of insured depository institutions and appropriate
consumer protections.
EGRPRA also recognizes that burden reduction must be consistent
with our statutory mandates, many of which currently require certain
regulations. One of the significant aspects of the EGRPRA review
program is the recognition that effective burden reduction in certain
areas may require legislative change. We will be soliciting comment on,
and reviewing the comments and regulations carefully for, the
relationship among burden reduction, regulatory requirements, and
statutory mandates. This will be a key aspect of the FFIEC report to
the Congress.\2\
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\2\ Institutions are also subject to regulations issued by other
non-banking agencies, such as rules issued by the Department of
Housing and Urban Development (under Real Estate Settlement
Procedures Act of 1974) and by the Department of the Treasury (under
the Bank Secrecy Act including rules required by the USA PATRIOT
Act). The rules of these other agencies are beyond the scope of the
EGRPRA review and the Agencies' jurisdictions. To the extent the
Agencies receive comments raising significant issues regarding these
related rules, however, we intend to identify the issues in the
Report to Congress and will also notify the related agencies of the
substance of the relevant comments.
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The combination of considering the relationship of regulatory and
statutory change on regulatory burden with the section 2222 requirement
for grouping regulations by type provides the possibility for
particularly effective burden reduction. It may be possible to identify
statutes and regulations that share similar goals or complementary
methods such that the regulatory requirements could be combined and
overlapping requirements could be

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eliminated. For example, it may be possible to combine certain types of
applications to eliminate duplication.
The EGRPRA review will complement the review to reduce burden and
to increase uniformity of regulations among the Agencies, pursuant to
section 303 of the Riegle Community Development and Regulatory
Improvement Act of 1994 (Pub. L. 103-325, Sept. 23, 1994, 12 U.S.C.
4803) (CDRI). The Agencies' section 2222 review will continue to try to
eliminate inconsistencies among their regulations, although complete
uniformity is not possible in light of differences in the types of
regulated entities and the statutes that apply to them.
The EGRPRA review can also significantly contribute to the
Agencies' ongoing efforts to reduce regulatory burden. For example,
since 1979, a formally adopted Federal Reserve policy has required the
Board to review each of its regulations at least once every five years
with a view toward eliminating, simplifying, or otherwise easing the
burden of each regulation.\3\ The FDIC has a similar requirement,
described in its policy ``Development and Review of FDIC Regulations
and Policies.'' \4\ See also: FDIC Chairman Powell's initiative
``Reducing Regulatory Burden'' at http://www.fdic.gov. Under OCC
policy in effect since the OCC undertook a comprehensive review of all
of its regulations to reduce regulatory burden in the mid-1990s, the
agency's regulation-writing process has sought to eliminate
``regulatory requirements that are not necessary to ensure the safety
and soundness of national banks, to support consumers' access to
financial services, or to accomplish other aspects of the OCC's
regulatory mission.'' \5\ See also, ``Remarks by John D. Hawke, Jr.,
Comptroller of the Currency, Before the Independent Community Bankers
of America, Orlando, Florida, March 4, 2003'' at http://www.occ.treas.gov/ftp/release/2003-17a.pdf.
Since the early 1990s OTS
has worked to reduce regulatory burden through various regulatory
review projects as well as Thrift Financial Report changes and
revisions to Applications forms. OTS strives to produce risk-focused,
efficient, and proactive regulations. OTS also, whenever possible,
tailors its regulations to risks posed by particular institutions and
writes its regulations and guidance in plain language.
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\3\ Board Statement of Policy Regarding Expanded Rulemaking
Procedures, 44 FR 3957, Jan. 19, 1979.
\4\ FDIC Law, Regulations and Related Acts, pp. 5057-5058.
\5\ OCC Bulletin 97-8 (January 7, 1997). Moreover, the OCC
recognizes that a ``one-size-fits-all'' approach to regulation can
be ineffective and burdensome, and tailors its regulations
accordingly, taking into account factors such as the size of an
institution. Id.
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Further, the Agencies address the issue of regulatory burden every
time they propose and adopt a rule. Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) and internal agency policies, the Agencies examine
each rulemaking to minimize the burdens it might impose on the industry
and consider various alternatives.\6\
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\6\ The OCC and OTS also review regulations pursuant to
Executive Order 12866 and the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4).
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The Agencies also will use both the EGRPRA review and the
individual reviews to identify and reduce burdens on small
institutions. More than half of insured depository institutions are
small--having $150 million in assets or less--as defined by the Small
Business Administration. We are particularly concerned about burden on
small institutions. When a new regulation is created or an old
regulation is changed, small institutions must devote a large
percentage of their staffs' time to review the regulation to determine
if and how it will affect them. Compliance with a regulation also can
take large amounts of time that cannot be devoted to serving customers
or business planning. In a large institution, ensuring regulatory
compliance can take many more hours; however, those hours make up a
much smaller percentage of the institution's resources. In situations
where a regulation is aimed at an activity engaged in primarily by
large institutions, the compliance burden on small institutions can
outweigh its benefit.
Section 610 of the Regulatory Flexibility Act imposes a continuing
requirement on agencies to review regulations that may have a
significant economic impact on a substantial number of small entities,
within 10 years after a final rulemaking is published. Although not all
of the Agencies' rules must be reviewed pursuant to section 610, the
Agencies are undertaking to review rules to the extent possible under
the section 610 review criteria because of the importance of burden
reduction to the many small institutions we regulate.

III. The Agencies' Proposed Plan

The Agencies must categorize their regulations by type. Section
2222 gives us authority to determine categories, and suggests two
possible categories: ``consumer regulations'' and ``safety and
soundness.'' The Agencies have regulations on more than 100 subjects
covering a wide variety of topics from capital maintenance to the
privacy of consumer financial information. Some of these regulations
have been issued jointly and are as uniform as possible. Others were
issued separately by the Agencies but implement common statutes or
policies. These rules are listed as interagency rules to facilitate
comparisons. Some regulations are issued by a single agency but are
applicable to all types of insured institutions, such as the Board's
Equal Credit Opportunity regulation or the FDIC's Deposit Insurance
regulation. Other regulations are issued by a single agency and have
more limited applicability. These rules are listed under the name of
the issuing agency.
The Agencies propose to seek public comment on 12 categories of
their regulations that impose burden on insured institutions between
now and 2006.\7\ The categories, in alphabetical order, are:
Applications and Reporting; Banking Operations; Capital; Community
Reinvestment Act; Consumer Protection; Directors, Officers and
Employees; International Operations; Money Laundering; Powers and
Activities; Rules of Procedure; Safety and Soundness; and Securities.
We believe that these categories are logical groupings that are not so
broad that the number of regulations presented in any one category
would overwhelm potential commenters. The categories also reflect
recognized areas of industry interest and specialization, or are
particularly critical to the health of the banking system. We recognize
that our regulations could be categorized in other ways and welcome
recommendations about the categories and the regulations placed within
them.
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7\\ Consistent with section 2222's focus on reducing burden on
insured institutions, the Agencies' EGRPRA review will not involve
their internal organizational or operational regulations to the
extent that those regulations impose no, or minimal, burden on
insured institutions.
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Although joint publication is not required by section 2222, the
Agencies believe that joint publication of the regulation categories
for public comment will be the most effective method for achieving
EGRPRA's burden reduction goals. Joint publication and review also will
help maintain the uniformity of regulations among the Agencies where
possible. We are publishing three categories of rules for burden
reduction comment today and plan to publish the remaining nine
categories in roughly semiannual intervals, with 90-day comment periods
for categories under review, throughout

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the review period. We welcome recommendations on grouping the remaining
categories and the order in which to publish them.
After the conclusion of the comment period for each EGRPRA review
notice published in the Federal Register, the Agencies will review the
comments we have received and decide whether further action is
appropriate with respect to the categories of regulations included in
that notice. That decision will be made by the Agencies jointly in the
case of rules that we have issued jointly. Any rulemaking to amend or
revise those rules would similarly be undertaken jointly and the public
will be provided with an opportunity to comment on any proposed
amendment. This interagency rulemaking process will not, however,
include rules issued by only one agency. Comments that address specific
provisions of such a regulation will be carefully reviewed and
incorporated in the detailed review of the relevant regulation
conducted by the agency issuing the rule. Each agency will separately
determine whether amendments to its own rules are appropriate in light
of comments submitted during the EGRPRA review and, if so, will
separately initiate rulemakings to modify its rules. Consistent with
the spirit of CDRI, however, where individual agency rules implement
common statutory or supervisory policies, the Agencies will work
jointly to achieve uniformity.
The Agencies have prepared three charts to assist public
understanding of the organization of our section 2222 review. Chart A
presents the three categories of regulations about which we are
requesting burden reduction recommendations starting today. Chart B
identifies regulations affecting United States (U.S.) branches,
agencies, and representative offices of foreign banks, while Chart C
presents the remaining nine categories on which we will seek comment.
The categories in each of the charts are shown in numbered and shaded
horizontal bands. In each, the left column divides the categories into
more specific subject matter areas. The remaining columns are headed by
the different types of financial institutions (e.g., national banks,
etc. * * *).
Generally, by reading down a column, a particular type of
institution may identify the citation of the rule that applies to it.
When one agency's regulation applies to institutions for which it is
not the primary regulator, the citation for the subject is repeated
across the columns.\8\ Interagency regulations are listed first,
followed by regulations issued by the OCC, Board, FDIC, and OTS.
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\8\ The charts have been provided as a convenience for the
reader and should not be treated as a comprehensive listing of all
rules applicable to a particular institution.
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Foreign banks. Foreign banks operate in the U.S. both directly,
through branches and agencies, and indirectly, through bank and nonbank
subsidiaries. The U.S. operations of foreign banks as a whole do not
fit neatly into the categories of Charts A and C. Consequently, Chart B
supplements the International Operations category of Chart A by
identifying the major regulations that apply only to U.S. branches,
agencies, or representative offices of foreign banks. We have also
footnoted the ``Holding Company'' column of Chart A to include foreign
banks. (If a foreign bank operates a branch, agency or subsidiary
commercial lending company in the U.S., it is subject to the Bank
Holding Company Act as if it were a bank holding company.) \9\
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\9\ There are a number of regulations that apply to branch or
agency operations because of the type of activity in which the
office engages rather than because it is a branch or agency. These
regulations govern such areas as consumer protection, customer
privacy, and securities regulation. Foreign banks may wish to
comment on these regulations at such time as they are published for
comment.
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IV. Request for Burden Reduction Recommendations About the First Three
Categories of Regulations: ``Applications and Reporting,'' ``Powers and
Activities,'' and ``International Operations''

The Agencies are asking the public to identify and comment upon
areas of regulations within three categories--``Applications and
Reporting,'' ``Powers and Activities,'' and ``International
Operations''--that impose outdated, unnecessary, or unduly burdensome
regulatory requirements on insured depository institutions. It is not
necessary for the public to provide burden reduction recommendations
about categories of rules other than these three categories at this
time since we will publish the remaining categories before the end of
the first review cycle in 2006. Comments that cite particular
provisions or language, and provide reasons why such provisions should
be changed, would be most helpful to the Agencies' review efforts.
Suggested alternative provisions or language, where appropriate, would
also be helpful. If the implementation of a comment would require
modifying a statute that underlies the regulation, the comment should,
if possible, identify the needed statutory change.
Specific issues for commenters to consider. While all comments
related to any aspect of section 2222 are welcome, the Agencies
specifically invite comment on the following issues:
[sbull] Need for statutory change. Do the statutes impose
unnecessary requirements? Are any of the statutory requirements
underlying these categories imposing redundant, conflicting or
otherwise unduly burdensome regulatory requirements?
[sbull] Need and purpose of the regulations. Do the regulations in
these categories fulfill current needs? Have industry or other
circumstances changed since a regulation was written such that the
regulation is no longer necessary? Have there been shifts within the
industry or consumer actions that suggest a re-focus of the underlying
regulations? Do any of the regulations in these categories impose
burdens not required by their authorizing statutes?
[sbull] Overarching approaches / flexibility of the regulatory
standards. Generally, is there a different approach to regulating that
the Agencies could use that would achieve statutory goals while
imposing less burden? Do any of the regulations in these categories or
the statutes underlying them impose unnecessarily inflexible
requirements?
[sbull] Effect of the regulations on competition. Do any of the
regulations in these categories or the statutes underlying them create
competitive disadvantages for one part of the financial services
industry compared to another?
[sbull] Reporting, recordkeeping and disclosure requirements. Do
any of the regulations in these categories or the statutes underlying
them impose particularly burdensome reporting, recordkeeping or
disclosure requirements? Are any of these requirements similar enough
in purpose and use so that they could be consolidated? Which, if any,
of these requirements could be fulfilled electronically to reduce their
burden?
[sbull] Consistency and redundancy. Do any of the regulations in
these categories impose inconsistent or redundant regulatory
requirements that are not warranted by the circumstances?
[sbull] Clarity. Are the regulations in these categories and the
underlying statutes drafted in clear and easily understood language?
Are there specific regulations or underlying statutes that need
clarification?
[sbull] Burden on small insured institutions. The Agencies have a
particular interest in minimizing burden on small insured institutions
(those with assets of $150 million or less). The Agencies solicit
comment on whether any regulations within these categories should be
continued without change, or

[[Page 35593]]

amended or rescinded in order to minimize any significant economic
impact the regulations may have on a substantial number of small
insured institutions.

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BILLING CODE 4810-33, 6210-01, 6714-01, 6720-01-C

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Dated: June 3, 2003.
John D. Hawke, Jr.,
Comptroller of the Currency.
By order of the Board of Governors of the Federal Reserve
System, June 9, 2003.
Jennifer J. Johnson,
Secretary of the Board.
By order of the Board of Directors.

Federal Deposit Insurance Corporation.

Dated in Washington, DC, this 10 day of June, 2003.
Robert E. Feldman,
Executive Secretary.
Dated: May 29, 2003.
James E. Gilleran,
Director, Office of Thrift Supervision.
[FR Doc. 03-15088 Filed 6-13-03; 8:45 am]