Unknown. Final rule

6,800 words·~31 min read·/register/2018/11/26/2018-25659

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2018-11-26.xml --- 83 227 Monday, November 26, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Meetings: National Organic Standards Board, 60373 2018-25572 Agriculture Agriculture Department See Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60391-60392 2018-25615 2018-25623 2018-25625 Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau PROPOSED RULES Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages, 60562-60693 2018-24446 Antitrust Division Antitrust Division NOTICES Response to Public Comment:

United States v. CRH plc, et al., 60446-60499 2018-25593 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 60427-60428 2018-25589 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60428-60429 2018-25700 Privacy Act; Matching Program, 60429-60430 2018-25639 Civil Rights Civil Rights Commission NOTICES Meetings:

Connecticut Advisory Committee, 60393 2018-25651 New York Advisory Committee, 60392-60393 2018-25644 Coast Guard Coast Guard RULES Safety Zones: Delaware River, Dredging Operation Equipment Recovery, Marcus Hook Range, Chester, PA, 60360-60362 2018-25668 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Commodity Futures Commodity Futures Trading Commission RULES Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 60341-60347 2018-25602 Copyright Royalty Board Copyright Royalty Board RULES Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III), 60362-60363 2018-25458 PROPOSED RULES Modification and Amendment of Regulations to Conform to the MMA, 60384-60385 2018-25579 Defense Department Defense Department See Engineers Corps NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 60411 2018-25441 Charter Renewals: Department of Defense Federal Advisory Committees, 60411 2018-25702 Defense Nuclear Defense Nuclear Facilities Safety Board NOTICES Meetings; Sunshine Act, 60412-60413 2018-25831 2018-25832 Meetings; Sunshine Act: Correction, 60413 2018-25830 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Borrower Defenses Against Loan Repayment, 60413 2018-25617 Energy Department Energy Department See Federal Energy Regulatory Commission NOTICES Meetings:

Environmental Management Advisory Board, 60414 2018-25650 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: The Great Lakes and Mississippi River Interbasin Study—Brandon Road Integrated Feasibility Study; Will County, IL, 60412 2018-25647 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Maryland; Regional Haze Five-Year Progress Report, 60363-60366 2018-25556 National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards:

Petroleum Refinery Sector Amendments, 60696-60728 2018-25080 Pesticide Tolerances: Pyrifluquinazon, 60366-60372 2018-25690 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: OR: Lane County Outdoor Burning and Enforcement Procedure Rules, 60386-60389 2018-25679 Notification of Submission to the Secretaries of Agriculture and Health and Human Services; Pesticides; Technical Amendment to Data Requirements for Antimicrobial Pesticides, 60389-60390 2018-25554 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Expanded Access to Toxic Substances Control Act Confidential Business Information, 60423-60424 2018-25673 Hazardous Remediation Waste Management Requirements Contaminated Media, 60422-60423 2018-25675 National Emission Standards for Hazardous Air Pollutants for Metal Coil Surface Coating Plants, 60425 2018-25671 New Source Performance Standards for Municipal Solid Waste Landfills, 60424 2018-25672 Executive Office Executive Office for Immigration Review NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 60499-60502 2018-25620 2018-25621 2018-25622 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: The Boeing Company Airplanes, 60337-60339 2018-25494 Amendment of Class E Airspace: Madison, MN, 60340-60341 2018-25576 Establishment of Class E Airspace, and Amendment of Class D Airspace and Class E Airspace: Dothan, AL, 60339-60340 2018-25569 PROPOSED RULES Airworthiness Directives: MD Helicopters Inc.

(MDHI)Helicopters, 60376-60378 2018-25497 Saab AB, Saab Aeronautics (Formerly Known as Saab AB, Saab Aerosystems) Airplanes, 60374-60376 2018-25495 Amendment of Class D and Class E Airspace: Schenectady, NY, Ithaca, NY, and Albany, NY, 60378-60380 2018-25564 Amendment of Class E Airspace: Carrizo Springs, TX, 60380-60382 2018-25575 Proposed Expansion of R-3803 Restricted Area Complex; Fort Polk, LA, 60382-60384 2018-25707 NOTICES Intent to Release Airport Property, 60556 2018-25577 Land Waivers: Indianapolis International Airport, Indianapolis, IN, 60554-60556 2018-25578 Federal Communications Federal Communications Commission NOTICES Incentive Auction Task Force and Media Bureau Seek Comment on Catalog of Potentially Reimbursable Costs Incurred by Low Power Television, Television Translator and FM Broadcast Stations, 60425-60426 2018-25571 Federal Deposit Federal Deposit Insurance Corporation RULES Transferred OTS Regulations Regarding Fiduciary Powers of State Savings Associations and Consent Requirements for the Exercise of Trust Powers, 60333-60337 2018-25659 Federal Energy Federal Energy Regulatory Commission RULES Geomagnetic Disturbance Reliability Standard; Transmission System Planned Performance for Geomagnetic Disturbance Events, 60347-60360 2018-25678 Non-Discriminatory Open Access Transmission Tariff; Corrections, 60347 2018-25584 NOTICES Applications: Mountain Valley Pipeline, LLC, 60420-60421 2018-25637 Southeast Oklahoma Power Corp., 60421 2018-25585 Environmental Assessments; Availability, etc.: Erie Boulevard Hydropower, LP, 60418-60419 2018-25580 Gulf South Pipeline Co., LP, 60421-60422 2018-25641 Environmental Impact Statements; Availability, etc.: Eagle LNG Partners Jacksonville, LLC; Jacksonville Project, 60414-60415 2018-25581 Filings: City of Vernon, CA, 60417 2018-25640 Oncor Electric Delivery Co., LLC, 60416-60417, 60419-60420 2018-25582 2018-25586 Hydroelectric Applications: N.E.W. Hydro, LLC, 60417-60418 2018-25638 Permit Applications: Southeast Oklahoma Power Corp., 60415-60416 2018-25587 Petitions for Declaratory Orders: Alabama Power Co.; Georgia Power Co.; Gulf Power Co.; Mississippi Power Co., 60419 2018-25583 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 60426-60427 2018-25814 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings; Sunshine Act, 60556 2018-25822 2018-25823 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 60427 2018-25676 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 60427 2018-25674 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 60557-60558 2018-25592 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See National Institutes of Health Homeland Homeland Security Department See Coast Guard See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Housing Trust Fund Program, 60438-60439 2018-25655 Legal Instructions Concerning Applications for Full Insurance Benefits—Assignment of Multifamily Mortgages to the Secretary, 60440-60441 2018-25656 Manufactured Housing Survey, 60443-60444 2018-25649 Multifamily Financial Management Template, 60442 2018-25653 Neighborhood Stabilization Program 2 Reporting NSP2, 60441-60442 2018-25654 Performance Review Board Appointments, 60439-60440 2018-25648 Indian Affairs Indian Affairs Bureau NOTICES Acquire Land into Trust for the Confederated Tribes of the Grand Ronde Community of Oregon, 60444 2018-25692 Industry Industry and Security Bureau NOTICES Order Denying Export Privileges: Gregory Allen Justice, 60395-60396 2018-25619 Procedures for Participating in User Testing of the New Commerce 232 Exclusion Process Portal, 60393-60395 2018-25680 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Museum Application Program Application, 60505-60506 2018-25567 Native American Library Basic Grant Program—Final Performance Report Form, 60506 2018-25568 Interior Interior Department See Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application to Withdraw Tribal Funds from Trust Status, 60444-60445 2018-25726 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Steel Nails from the Socialist Republic of Vietnam, 60399-60400 2018-25636 Forged Steel Fittings from Italy and the People's Republic of China, 60397-60399 2018-25703 Forged Steel Fittings from the People's Republic of China, 60396-60397 2018-25704 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Forged Steel Fittings from China and Italy, 60445-60446 2018-25612 Justice Department Justice Department See Antitrust Division See Executive Office for Immigration Review NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60502 2018-25632 Labor Department Labor Department See Mine Safety and Health Administration Library Library of Congress See Copyright Royalty Board Management Management and Budget Office NOTICES Update to Data Center Optimization Initiative, 60503 2018-25573 Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Records of Preshift and Onshift Inspections of Slope and Shaft Areas of Slope and Shaft Sinking Operations at Coal Mines, 60502-60503 2018-25633 Morris K. Morris K. and Stewart L. Udall Foundation NOTICES Meetings; Sunshine Act, 60503-60504 2018-25897 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60504-60505 2018-25667 Meetings: Advisory Council, 60504 2018-25565 National Foundation National Foundation on the Arts and the Humanities See Institute of Museum and Library Services National Institute National Institutes of Health NOTICES Charter Renewals: National Toxicology Program Board of Scientific Counselors, 60431 2018-25627 Meetings: National Institute of Allergy and Infectious Diseases, 60430-60431 2018-25629 National Institute of Allergy and Infectious Diseases Special Emphasis Panel, 60431-60433 2018-25628 2018-25630 National Institute of Mental Health, 60433 2018-25570 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Summer Flounder Fishery; Quota Transfer, 60372 2018-25566 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60407-60408 2018-25613 Endangered and Threatened Species: Take of Anadromous Fish, 60405-60407 2018-25693 Fisheries of the Exclusive Economic Zone off Alaska: Application for an Exempted Fishing Permit, 60408-60410 2018-25416 International Affairs; U.S. Fishing Opportunities in the Northwest Atlantic Fisheries Organization Regulatory Area, 60400-60404 2018-25591 Meetings: Gulf of Mexico Fishery Management Council, 60405 2018-25669 Mid-Atlantic Fishery Management Council, 60404-60405 2018-25670 National Science National Science Foundation NOTICES Antarctic Conservation Act Permits, 60506-60507 2018-25642 2018-25643 2018-25646 Permits Issued under the Antarctic Conservation Act, 60507 2018-25645 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Impact Statements; Availability, etc.: Entergy Operations, Inc., Waterford Steam Electric Station, Unit 3, 60507-60508 2018-25695 Meetings: Omaha Public Power District, Fort Calhoun Station, Unit No. 1, Partial Site Release, 60508-60509 2018-25666 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pipeline Safety: Information Collection Activities, Gas and Liquid Pipeline Safety Program Certification, 60557 2018-25652 Postal Regulatory Postal Regulatory Commission PROPOSED RULES Ratemaking Procedures for Inbound Letter Post and Related Services, 60385-60386 2018-25665 NOTICES New Postal Products, 60509 2018-25664 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60510, 60520, 60526-60527, 60533-60534, 60540, 60550 2018-25682 2018-25683 2018-25684 2018-25685 2018-25686 2018-25687 2018-25688 2018-25689 Applications: Pacific Global ETF Trust and Cadence Capital Management, LLC, 60520-60522 2018-25594 Meetings; Sunshine Act, 60539-60540 2018-25748 Self-Regulatory Organizations; Proposed Rule Changes: Cboe C2 Exchange, Inc., 60516-60519 2018-25739 Cboe EDGA Exchange, Inc., 60529-60530 2018-25600 Cboe EDGX Exchange, Inc., 60530-60536 2018-25596 2018-25734 Nasdaq PHLX, LLC, 60512-60514, 60547-60550 2018-25597 2018-25601 NYSE American, LLC, 60519-60520, 60536-60539 2018-25595 2018-25738 The Nasdaq Stock Market, LLC, 60510-60512, 60514-60516, 60522-60529, 60545-60547 2018-25598 2018-25599 2018-25731 2018-25735 2018-25736 The Options Clearing Corp., 60541-60545 2018-25606 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Immigrant Visa Supervisor Locator, 60550-60551 2018-25616 State Justice State Justice Institute NOTICES Meetings: Board of Directors, 60551 2018-25657 Trade Representative Trade Representative, Office of United States NOTICES Determination of Trade Surplus: Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and Panama, 60551-60554 2018-25699 Transportation Department Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Pipeline and Hazardous Materials Safety Administration Treasury Treasury Department See Alcohol and Tobacco Tax and Trade Bureau See Foreign Assets Control Office Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: Atlantic Product Services, Inc., 60434-60435 2018-25604 Coastal Gulf and International, 60435-60437 2018-25607 2018-25608 2018-25611 Laboratory Service, Inc., 60433-60434 2018-25609 Marine Technical Surveyors, Inc., 60433 2018-25610 SGS North America, Inc., 60436-60437 2018-25603 WFR Metering, Inc., 60434 2018-25605 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Request for Restoration of Educational Assistance, 60558 2018-25614 Meetings: Creating Options for Veterans Expedited Recovery Commission, 60558-60559 2018-25624 National Academic Affiliations Council, 60559 2018-25694 Separate Parts In This Issue Part II Treasury Department, Alcohol and Tobacco Tax and Trade Bureau, 60562-60693 2018-24446 Part III Environmental Protection Agency, 60696-60728 2018-25080 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 83 227 Monday, November 26, 2018 Rules and Regulations FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303, 333, and 390 RIN 3064-AE23 Transferred OTS Regulations Regarding Fiduciary Powers of State Savings Associations and Consent Requirements for the Exercise of Trust Powers AGENCY: Federal Deposit Insurance Corporation. ACTION: Final rule. SUMMARY: The Federal Deposit Insurance Corporation

(FDIC)is adopting a final rule to rescind and remove regulations entitled *Fiduciary Powers of State Savings Associations,* from the Code of Federal Regulations, and to amend current FDIC regulations regarding consent to exercise trust powers to reflect the applicability of these parts to both State savings associations and State nonmember banks. DATES: The final rule is effective January 1, 2019. FOR FURTHER INFORMATION CONTACT: Michael W. Orange, Senior Examination Specialist-Trust, Division of Risk Management and Supervision, 678-916-2289, *morange@fdic.gov;* Karen J. Currie, Senior Examination Specialist, Division of Risk Management and Supervision, 202-898-3981, *kcurrie@fdic.gov;* Annmarie Boyd, Counsel, Legal Division, 202-898-3714, *aboyd@fdic.gov;* or Alexander S. Bonander, Attorney, Legal Division, 202-898-3621, *abonander@fdic.gov;* Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429. SUPPLEMENTARY INFORMATION: I. Background The Dodd-Frank Act provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. 1 Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the Office of Thrift Supervision

(OTS)were divided between 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, as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials, that were issued, made, prescribed, or allowed to become effective by the OTS. The section provides that, if such regulatory issuances were in effect on the day before the transfer date, they continue to be in effect and 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. 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376

(2010)(12 U.S.C. 5301 *et seq.* ). Section 316(c) of the Dodd-Frank Act, 12 U.S.C. 5414(c), further directed the FDIC and OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by each agency. 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 2 76 FR 39247 (July 6, 2011). Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, 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, 12 U.S.C. 5412(c), 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” for State savings associations and State nonmember banks, as it does here, the FDIC is authorized to issue, modify, and rescind regulations involving such institutions. On June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferred regulations of the former OTS as FDIC regulations. When these transferred OTS regulations were published as new FDIC regulations in the **Federal Register** on August 5, 2011, 3 the FDIC specifically noted that it would evaluate the transferred OTS regulations and might later incorporate them into other FDIC rules, amend them, or rescind them, as appropriate. 3 76 FR 47652 (Aug. 5, 2011). II. Part 390 Subpart J: Fiduciary Powers of State Savings Associations The OTS regulation formerly found at 12 CFR 550.10(b)(1), which covered the fiduciary powers (also known as trust powers) of State savings associations, was transferred to the FDIC with only nominal changes and is now found in the FDIC's rules at 12 CFR part 390, subpart J (Subpart J). Subpart J provides that a State savings association must conduct its fiduciary operations in accordance with applicable State law and must exercise its fiduciary powers in a safe and sound manner. III. State Nonmember Banks and Trust Powers Unlike the explicit requirement applicable to State savings associations in Subpart J, there is no express rule requiring State nonmember banks to conduct fiduciary operations in accordance with applicable State law and to exercise their fiduciary powers in a safe and sound manner. However, the FDIC has long recognized that State nonmember banks, like State savings associations, must comply with State law when exercising trust or fiduciary powers. 4 This reflects a widely understood industry principle that the trust powers of State chartered institutions are granted under State law and are primarily administered by the State chartering authority. 5 4 FDIC Trust Examination Manual, * http://www.fdic.gov/regulations/examinations/ trustmanual/section_10/section_x.html#B1 * . (The trust powers of State nonmember banks are granted under State law and the administration of trust powers primarily rests with the State as a State nonmember bank's chartering authority.). 5 *Id.* State nonmember banks are generally required to file an application for consent to exercise trust powers. 6 Therefore, if a State nonmember bank seeks to change the nature of its current business to include trust activities, section 333.2 requires the bank to obtain the FDIC's prior written consent. 7 Under section 333.101(b), however, prior written consent is not required when a State nonmember bank seeks to act as trustee or custodian of certain qualified retirement, education, and health savings accounts, or other similar accounts in which the bank's duties are essentially custodial or ministerial in nature and the acceptance of such accounts without trust powers is not contrary to applicable State law. 8 6 Banks granted trust powers by statute or charter prior to December 1, 1950, are considered grandfathered from the requirement to obtain consent to exercise trust powers. *See* 12 CFR 303.242(a). 7 A State nonmember bank is required to obtain the FDIC's prior written consent before changing its general character or type of business. 12 CFR 333.2. 8 These accounts include Individual Retirement Accounts (IRAs), Self-Employed Retirement Plans, Roth IRAs, Coverdell Education Savings Accounts, Health Savings Accounts, and other accounts in which:

(1)The bank's duties are essentially custodial or ministerial in nature;

(2)the bank is required to invest the funds from such plans only in its own time or savings deposits or in any other assets at the direction of the customer; and

(3)the bank's acceptance of such accounts without trust powers is not contrary to applicable State law. *See* 12 CFR 333.101(b). Section 303.242 contains application procedures that a State nonmember bank must follow to obtain the FDIC's prior written consent before engaging in trust activities. 9 Prior to granting such consent, the FDIC considers whether the bank will conduct trust operations in a safe and sound manner, consistent with State law. 9 State nonmember banks must file an application to obtain the FDIC's prior written consent to exercise trust powers unless:

(1)The bank received authority to exercise trust powers by its chartering authority prior to December 1, 1950; or

(2)the insured depository institution continues to conduct trust activities pursuant to the authority granted to it by its chartering authority subsequent to a charter conversion or withdrawal from membership in the Federal Reserve System. 12 CFR 303.242(a). IV. The Proposed Rule On April 10, 2018, the FDIC issued a Notice of Proposed Rulemaking (NPR or Proposed Rule) entitled *Transferred OTS Regulations Regarding Fiduciary Powers of State Savings Associations and Consent Requirements for the Exercise of Trust Powers* . 10 The NPR proposed to:

(1)Rescind Subpart J in its entirety;

(2)add a new section 333.3 explicitly providing that State savings associations and State nonmember banks must obtain the FDIC's prior written consent before exercising trust powers by following the procedures contained in section 303.242;

(3)revise section 333.101 to provide that State savings associations, as well as State nonmember banks, are not considered to be exercising trust powers when acting as trustees or custodians for certain qualified retirement, education, and health savings accounts, or other similar accounts in which the bank's duties are essentially custodial or ministerial in nature and the acceptance of such accounts without trust powers is not contrary to applicable State law; and

(4)revise section 303.242 to make its application procedures applicable to both State savings associations and State nonmember banks and incorporate a listing of documents required to be submitted with the application for consent to exercise trust powers. 10 83 FR 15327 (Apr. 10, 2018). V. Comments The FDIC issued the NPR with a 60-day comment period that closed on June 11, 2018. The FDIC requested comments on all aspects of the Proposed Rule, including whether Subpart J should be retained and what positive or negative impacts could result from the proposed revisions to parts 333 and 303, including the impact on State savings associations not currently exercising trust powers that would need to obtain FDIC consent if they chose to do so in the future. The FDIC received no comments on the Proposed Rule. Accordingly, the FDIC is adopting the Proposed Rule largely as proposed, but without incorporating the listing of documents in section 303.242. As discussed further below, this change is intended to avoid unnecessary duplication or confusion with the existing application form and further regulatory revisions in the event of any future changes to the documentation listed on the form. VI. Explanation of the Final Rule As discussed in the NPR, the FDIC concluded that the rescission of Subpart J would streamline the FDIC rules and regulations, and no comments were received on this issue. Therefore, the final rule removes and rescinds 12 CFR part 390, subpart J in its entirety. The final rule adds a new section 333.3, unchanged from the NPR, explicitly requiring State savings associations and State nonmember banks to obtain the FDIC's prior written consent before exercising trust powers. For State nonmember banks, section 333.3 makes explicit the FDIC's existing requirement that State nonmember banks receive the FDIC's consent before initially exercising trust powers, as such an action would constitute a change in the bank's general character or business under 12 CFR 333.2. For State savings associations, Section 333.3 adds a new requirement to obtain the FDIC's prior written consent should they choose in the future to exercise trust powers granted by their State chartering authorities. In effect, section 333.3 makes the requirement to file an application consistent for both State savings associations and State nonmember banks. The final rule, like the NPR, also revises section 333.101(b) to permit both State savings associations and State nonmember banks to act as custodians for qualifying retirement, education, and health savings accounts, or other similar accounts without being deemed to exercise trust powers, and therefore without obtaining the FDIC's prior written consent. The final rule, like the NPR, makes the application procedures in section 303.242 applicable to both State savings associations and State nonmember banks. Accordingly, under section 303.242(a) of the final rule, neither State savings associations nor State nonmember banks are required to receive the FDIC's prior written consent to exercise trust powers when:

(1)The institution received authority to exercise trust powers from its chartering authority prior to December 1, 1950; or

(2)the institution continues to conduct trust activities pursuant to authority granted by its chartering authority subsequent to a charter conversion or withdrawal from membership in the Federal Reserve System. The NPR originally proposed to amend section 303.242

(c)to list specific documents typically filed as part of an application to exercise trust powers. 11 Upon further consideration, the FDIC determined not to list these items in the final rule in order to avoid duplication with the items already listed in the instructions on the existing application form for consent to exercise trust powers and the need for additional, corresponding changes to section 303.242(c) to reflect any future updates to the existing form. 12 Accordingly, the final rule does not change section 303.242(c), which continues to provide that the required filing shall consist of the completed application form. 13 11 83 FR 15327, 15320. 12 FDIC, *Application for Consent to Exercise Trust Powers, https://www.fdic.gov/formsdocuments/6200-09.pdf* . 13 12 CFR 303.242(c). VII. Regulatory Process A. The Paperwork Reduction Act Certain provisions of the final rule contain “collection of information” requirements within the meaning of the Paperwork Reduction Act

(PRA)of 1995, codified at 44 U.S.C. 3501-3521. In accordance with the PRA, 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 OMB control number for this collection of information is 3064-0025. 14 As required by the PRA and OMB implementing regulations (5 CFR part 1320), when the NPR was published, the FDIC submitted the information collection requirements contained in this final rulemaking to OMB for review and approval. OMB filed its Notice of Action preapproving this submission on May 16, 2018. 14 The information collection for Application for Consent to Exercise Trust Powers, OMB No. 3064-0025, was renewed by OMB on August 30, 2017, and now expires on August 31, 2020. The final rule, like the NPR, would rescind and remove Part 390, Subpart J from Title 12 of the Code of Federal Regulations, amend Parts 303 and 333 to clarify the existing consent requirements for State nonmember banks, and incorporate references to State savings associations into those parts. These changes would not add additional burden to the FDIC's current information collection under OMB control number 3064-0025, *Application for Consent to Exercise Trust Powers* . However, the revision of Parts 303 and 333 to include State savings associations as potential filers would add additional burden to the FDIC's current information collection under OMB control number 3064-0025, as State savings associations would be required to complete the designated application and submit required documentation to comply with Parts 303 and 333. Currently, there are a total of forty one State savings associations. There is only one State savings association currently exercising trust powers, so there are forty State savings associations that would potentially need to seek the FDIC's consent pursuant to the proposed revisions to Parts 303 and 333 before exercising trust powers. 15 15 Call Report Data, June 2018. In the NPR, the FDIC proposed to revise this information collection as follows: *Title:* Application for Consent to Exercise Trust Powers. *OMB Number:* 3064-0025. *Form Number:* FDIC 6200/09. *Affected Public:* Insured State nonmember banks and insured State savings associations wishing to exercise trust powers. Type of burden Estimated number of respondents Estimated hours per response Frequency of response Total annual estimated burden (hours) Eligible depository institutions Reporting 9 8 On Occasion 72 Not-eligible depository institutions Reporting 4 24 On Occasion 96 Totals 13 168 The FDIC did not receive any comments on its proposed revisions to this information collection. Accordingly, the information collection revisions are adopted as proposed in the NPR and replicated in the chart above. B. The Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)16 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 United States Small Business Administration to include banking organizations with total assets of less than or equal to $550 million). 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. 17 As discussed above and in the NPR, the FDIC has authority to issue, modify and rescind regulations as the appropriate Federal banking agency for State savings associations and State nonmember banks. In addition to the approach taken in the NPR and final rule, the FDIC also considered the alternative of maintaining the status quo, which would have retained the separate regulatory regimes for State savings associations and State non-member banks. 16 5 U.S.C. 601 *et seq.* 17 The FDIC supervises 3,675institutions, of which 2,850 are “small entities” according to the terms of RFA. There are 2,832 small state non-member banks and 38 small state savings associations. *See* Call Report Data, June 2018. The final rule amends part 333 to state that both State savings associations and State nonmember banks seeking to exercise trust powers must obtain FDIC consent. The final rule is not expected to impact State nonmember banks, as it results in no substantive changes for those institutions. Prior to the final rule, State nonmember banks were subject to the longstanding interpretation that the initial exercise of trust powers granted by a chartering authority constituted a change in the character of the bank's business under 12 CFR 333.2, and thereby required the FDIC's prior written approval. The final rule clarifies this issue by explicitly stating the longstanding requirement that State nonmember banks obtain the FDIC's prior written approval before exercising trust powers for the first time. As discussed above, the revisions to part 333 require a filing by those State savings associations that seek to exercise trust powers in the future. However, a State savings association's application for the FDIC's consent to exercise trust powers would be a one-time process that is not anticipated to create a significant economic impact. The information requested on the application form would require a State savings association to identify the type of trust power it seeks to exercise and to provide documentation that includes proof of the adoption of the FDIC's Statement of Principles of Trust Department Management, identification of the applicable trust officer, trust committee, trust counsel, servicing arrangements, proof of the requisite approvals by the appropriate State authority, a projection of the proposed trust activity's three-year performance, and a statement of its impact on the applicant. 18 18 FDIC 6200/09 (10-05). Based on the FDIC's supervisory experience, most of the documentation required, such as State approval, servicing arrangements, and designation of personnel to serve as appropriate trust counsel, trust officer, and trust committee directors, is based on information and resources that a State savings association applicant would already possess or have to establish in order to exercise trust powers, regardless of whether it seeks the FDIC's prior written consent. Submitting existing information is not expected to create significant, additional expenses for a State savings association seeking the FDIC's prior written consent to exercise trust powers. The FDIC estimates that it will receive relatively few applications, given the small overall number of State savings associations

(40)that would be affected by the rule if they sought to exercise trust powers. In addition, no comments were received pertaining to the RFA discussion in the NPR. For these reasons, the FDIC certifies that the final rule would not have a significant economic impact on a substantial number of small entities, within the meaning of those terms as used in the RFA. Accordingly, a regulatory flexibility analysis is not required. 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). 19 As required by SBREFA, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review. 19 5 U.S.C. 801 *et seq.* D. Plain Language Section 722 of the Gramm-Leach-Bliley Act 20 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 Proposed Rule was clearly stated and effectively organized, and how the FDIC might make it easier to understand. Although no comments were received, the FDIC has sought to present the final rule in a simple and straightforward manner. 20 Public Law 106-102, section 722, 113 Stat. 1338, 1471 (1999). E. Riegle Community Development and Regulatory Improvement Act of 1994 Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA), 21 in determining the effective date and administrative compliance requirements for a new regulation that imposes additional reporting, disclosure, or other requirements on insured depository institutions, each Federal banking agency must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302(b) of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosure, or other new requirements on insured depository institutions generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 22 21 12 U.S.C. 4802(a). 22 12 U.S.C. 4802. In accordance with these provisions, the FDIC considered any administrative burdens, as well as benefits, that the final rule would place on depository institutions and their customers in determining the effective date and administrative compliance requirements of the final rule. The final rule imposes a new requirement on State savings associations to obtain the FDIC's consent before exercising trust powers granted by State chartering authorities and, in accordance with RCDRIA and the Administrative Procedure Act, 23 will be effective no earlier than the first day of the calendar quarter that is at least 30 days following the date on which the final rule is published in the **Federal Register** . However, as discussed above, the application primarily requires submission of pre-existing documentation and is not expected to be burdensome for depository institutions or their customers. The final rule also provides greater clarity to FDIC-supervised institutions and results in greater consistency in the application process. 23 5 U.S.C. 553(d). F. 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 ten years in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions. 24 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 to address issues identified during the review process. 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 Subpart J, and amending Parts 303 and 333, this rule complements other actions the FDIC has taken, separately and with the other Federal banking agencies, to further the EGRPRA mandate. 24 Public Law 104-208, 110 Stat. 3009 (1996). List of Subjects 12 CFR Part 303 Administrative practice and procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations, Trusts and trustees. 12 CFR Part 333 Banks, banking, Corporate powers, Savings associations, Trusts and trustees. 12 CFR Part 390 Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations. Authority and Issuance For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends 12 CFR parts 308, 333, and 390 as follows: PART 303—FILING PROCEDURES 1. The authority citation for part 303 is revised to read as follows: Authority: 12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819(a) (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207, 5414, 5415 and 15 U.S.C. 1601-1607. 2. Revise § 303.242 to read as follows: § 303.242 Exercise of trust powers.

(a)*Scope.* This section contains the procedures to be followed by a State nonmember bank or State savings association that seeks to obtain the FDIC's prior written consent to exercise trust powers. The FDIC's prior written consent to exercise trust powers is not required in the following circumstances:

(1)Where a State nonmember bank or State savings association received authority to exercise trust powers from its chartering authority prior to December 1, 1950; or

(2)Where the institution continues to conduct trust activities pursuant to authority granted by its chartering authority subsequent to a charter conversion or withdrawal from membership in the Federal Reserve System.

(b)*Where to file.* Applicants shall submit to the appropriate FDIC office a completed form, “Application for Consent to Exercise Trust Powers.” This form may be obtained from any FDIC regional director.

(c)*Content of filing.* The filing shall consist of the completed trust application form.

(d)*Additional information.* The FDIC may request additional information at any time during processing of the filing.

(e)*Expedited processing for eligible depository institutions.* An application filed under this section by an eligible depository institution as defined in § 303.2(r) will be acknowledged in writing by the FDIC and will receive expedited processing, unless the applicant is notified in writing to the contrary and provided with the basis for that decision. The FDIC may remove an application from expedited processing for any of the reasons set forth in § 303.11(c)(2.). Absent such removal, an application processed under expedited procedures will be deemed approved 30 days after the FDIC's receipt of a substantially complete application.

(f)*Standard processing.* For those applications that are not processed pursuant to the expedited procedures, the FDIC will provide the applicant with written notification of the final action when the decision is rendered. PART 333—EXTENSION OF CORPORATE POWERS 3. The authority citation for part 333 is revised to read as follows: Authority: 12 U.S.C. 1816; 1817(i); 1818; 1819(a) (“Seventh”, “Eighth”, and “Tenth”), 1828, 1828(m), 1831p-1(c), 5414 and 5415. 4. Add § 333.3 to read as follows: § 333.3 Consent required for exercise of trust powers. Except as provided in 12 CFR 303.242(a), a State nonmember bank or State savings association seeking to exercise trust powers must obtain prior written consent from the FDIC. Procedures for obtaining the FDIC's prior written consent are set forth in 12 CFR 303.242. 5. Revise § 333.101(b) to read as follows: § 333.101 Prior consent not required.

(b)An insured State nonmember bank or State savings association, not exercising trust powers, may act as trustee or custodian of Individual Retirement Accounts established pursuant to the Employee Retirement Income Security Act of 1974 (26 U.S.C. 408), Self-Employed Retirement Plans established pursuant to the Self-Employed Individuals Retirement Act of 1962 (26 U.S.C. 401), Roth Individual Retirement Accounts and Coverdell Education Savings Accounts established pursuant to the Taxpayer Relief Act of 1997 (26 U.S.C. 408A and 530 respectively), Health Savings Accounts established pursuant to the Medicare Prescription Drug Improvement and Modernization Act of 2003 (26 U.S.C. 223), and other similar accounts without the prior written consent of the Corporation provided:

(1)The bank's or savings association's duties as trustee or custodian are essentially custodial or ministerial in nature,

(2)The bank or savings association is required to invest the funds from such plans only

(i)In its own time or savings deposits, or

(ii)In any other assets at the direction of the customer, provided the bank or savings association does not exercise any investment discretion or provide any investment advice with respect to such account assets, and

(3)The bank's or savings association's acceptance of such accounts without trust powers is not contrary to applicable State law. PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 6. The authority citation for part 390 is revised to read as follows: Authority: 12 U.S.C. 1819. Subpart J—[Removed and reserved] 7. Remove and reserve subpart J, consisting of § 390.190. Dated at Washington, DC, on November 20, 2018. By order of the Board of Directors. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. 2018-25659 Filed 11-23-18; 8:45 am]

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