2010-30078. Securities of Nonmember Insured Banks

AGENCY:

Federal Deposit Insurance Corporation.

ACTION:

Interim final rule; request for comment.

SUMMARY:

The FDIC is revising its securities disclosure regulations applicable to state nonmember banks with securities required to be registered under section 12 of the Securities Exchange Act of 1934 (Exchange Act). The final rule cross references changes in regulations adopted by the Securities and Exchange Commission (SEC) into the provisions of the FDIC's securities regulations. Cross referencing will assure that the FDIC's regulations remain substantially similar to the SEC's regulations, as required by law. The final rule provides general references to SEC regulations by title and part of the Code of Federal Regulations (CFR), rather than by specific references to sections and subparts of the CFR as are currently provided in part 335. This revision reflects changes to SEC regulations with respect to small business issuers and will provide general guidance to FDIC filers regarding the electronic filing of certain documents. The amendments to part 335 references to SEC regulations will greatly reduce the need for future revisions of part 335, and the FDIC's regulations will be consistent with the SEC regulations through the cross reference stated in 12 CFR 335.101.

DATES:

These amendments are effective on November 30, 2010. Comments must be submitted on or before January 31, 2011.

ADDRESSES:

Interested parties are invited to submit written comments to the FDIC by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Agency Web Site: http://www.fdic.gov/​regulations/​laws/​federal/​propose.html. Follow the instructions for submitting comments on the FDIC Web site.
• E-mail: [e-mail]. Include “Part 335—Securities of Nonmember Insured Banks” in the subject line of the message.
• Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivery/Courier: Comments may be hand-delivered to the guard station located at the rear of the FDIC's 550 17th Street building (accessible from F Street) on business days between 7 a.m. and 5 p.m.

Instructions: All submissions must include the agency name and use the title “Part 335—Securities of Nonmember Insured Banks.” All comments received will be posted, generally without change, to: http://www.fdic.gov/​regulations/​laws/​federal/​propose.html,, including any personal information provided. Paper copies of public comments may be ordered from the FDIC's Public Information Center by telephone at [phone] or [phone].

FOR FURTHER INFORMATION CONTACT:

Dennis Chapman, Senior Staff Accountant, Division of Supervision and Consumer Protection, [phone] or [e-mail]; Maureen Loviglio, Senior Staff Accountant, Division of Supervision and Consumer Protection, [phone] or [e-mail]; or Mark G. Flanigan, Counsel, Legal Division, [phone] or [e-mail], Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

Section 12(i) of the Exchange Act, as amended (15 U.S.C. 78l(i)), authorizes the FDIC to issue regulations applicable to the securities of state nonmember banks that are substantially similar to those of the SEC with respect to its powers, functions, and duties to administer and enforce sections 10A(m) (standards relating to audit committees), 12 (securities registration), 13 (periodic reporting), 14(a) (proxies and proxy solicitation), 14(c) (information statements), 14(d) (tender offers), 14(f) (arrangements for changes in directors), and 16 (beneficial ownership and reporting) of the Exchange Act, and sections 302 (corporate responsibility for financial reports), 303 (improper influence on conduct of audits), 304 (forfeiture of certain bonuses and profits), 306 (insider trades during blackout periods), 401(b) (disclosure of pro forma financial information), 404 (management assessment of internal controls), 406 (code of ethics for senior financial officers), and 407 (disclosure of audit committee financial expert) of the Sarbanes-Oxley Act (codified at 15 U.S.C. 7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265). These regulations must be substantially similar to the regulations of the SEC under the listed sections of the Exchange Act and the Sarbanes-Oxley Act, unless the FDIC publishes its reasons for deviating from the SEC's rules. The proposed amendments to this part provide references to titles and parts of the CFR, and eliminate references to specific CFR sections and subparts, as a general cross reference is provided in § 335.101. The elimination of CFR section and subpart references provides efficiency as regulatory revisions by the SEC impacting CFR sections and subparts will no longer require amendments to part 335 each time a CFR section and subpart is amended.

II. Section by Section Analysis

Part 335 will be amended throughout to reflect the elimination of certain references to sections and subparts of the Code of Federal Regulations that the FDIC is currently required to administer and enforce under section 12(i) of the Exchange Act, provide a general cross reference to the relevant title and part of the Code of Federal Regulations, and reflect required and voluntary electronic filing of FDIC forms. Accordingly, the following sections in part 335 will be amended, where appropriate, to remove references to specific CFR sections and subparts in the SEC's regulations that have been cross referenced in section 335.101: § 335.111 (Forms and schedules), § 335.121 (Listing standards related to audit committees), § 335.201 (Securities exempted from registration), § 335.211 (Registration and reporting), section 335.221 (Forms for registration of securities and other matters), § 335.231 (Certification, suspension of trading, and removal from listing by exchanges), § 335.241 (Unlisted trading), § 335.251 (Forms for notification of action taken by national securities exchanges), § 335.261 (Exemptions; terminations; and definitions), § 335.301 (Reports of issuers of securities registered pursuant to § 12), § 335.311 (Forms for annual, quarterly, current, and other reports of issuers), § 335.321 (Maintenance of records and issuer's representations in connection with required reports), § 335.331 (Acquisition statements, acquisition of securities by issuers, and other matters), § 335.401 (Solicitation of proxies), § 335.501 (Tender offers), § 335.601 (Requirements of section 16 of the Securities Exchange Act of 1934), § 335.611 (Initial statement of beneficial ownership of securities), § 335.612 (Statement of changes in beneficial ownership of securities), § 335.613 (Annual statement of beneficial ownership of securities), § 335.701 (Filing requirements, public reference, and confidentiality), and § 335.801 (Inapplicable SEC regulations; FDIC substituted regulations; additional information).z

Section 335.111 (Forms and Schedules) will be amended to provide information regarding access to and the use of beneficial ownership Forms 3, 4, and 5 from the FDIC Web site.

Section 335.221 (Forms for registration of securities and other matters) will be revised to delete paragraph (c) in order to reflect amendments to SEC regulations that eliminate the optional forms for small business issuer filing requirements. To accommodate this revision, current paragraph (d), which cross references the requirements of SEC Regulation FD (Fair Disclosure) (17 CFR 243.100 through 243.103), will be renamed paragraph (c).

Section 335.311 (Forms for annual, quarterly, current, and other reports of issuers) will be amended to delete references to “small business issuers” and optional forms for filing requirements in order to reflect amendments to SEC regulations that no longer provide optional forms for filing by small business issuers.

Section 335.601 (Requirements of section 16 of the Securities Exchange Act of 1934), § 335.701 (Filing requirements, public reference, and confidentiality), and § 335.801 (Inapplicable SEC regulations; FDIC substituted regulations; additional information) will be amended, where applicable, to reflect the electronic filing requirements with respect to Beneficial Ownership Report Forms 3, 4, and 5 required by the Exchange Act, as amended by the Sarbanes-Oxley Act of 2002. The sections also will be amended to reflect the availability of voluntary electronic filing on the FDIC Web site. In addition, § 335.801 will be amended to reflect the appropriate forms for the hardship exemption from mandatory electronic filing.

Finally, the FDIC will make certain nonsubstantive changes to Part 335 to improve its clarity and readability and to correct outdated terms.

III. Request for Comments

The FDIC requests comments on all aspects of the rule changes. Commenters suggesting that the FDIC modify the requirements of the SEC's rules, regulations, and forms for state nonmember banks should support their request by demonstrating how such modification would satisfy the requirements of section 12(i) of the Exchange Act.

Comments are also welcome on the general organization of Part 335.

IV. Regulatory Analysis and Procedure

A. Administrative Procedure Act

The process of amending Part 335 by means of this Interim Rule is governed by the Administrative Procedure Act (APA). Pursuant to section 553(b)(B) of the APA, general notice and opportunity for public comment are not required with respect to a rulemaking when (1) the rule is interpretative or relates to an agency's rules of organization, procedure, or practice, and (2) an agency for good cause finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Similarly, sections 553(d)(2), (3) of the APA provide that the publication of a rule shall be made not less than 30 days before its effective date, except if the rule is interpretative and “as otherwise provided by the agency for good cause found and published with the rule.”

Consistent with sections 553(b)(A), (B) of the APA, the FDIC finds that good cause exists for a finding that general notice and opportunity for public comment are unnecessary in that certain portions of part 335 that are being amended in light of the issuance of regulations by the SEC, which SEC issuances already have been subjected to public notice and request for comment. In addition, certain other changes to part 335 are organizational in nature and are exempt from the APA's general notice and public comment requirement. Accordingly, pursuant to the APA, the FDIC is foregoing the general notice and public comment requirement as to this rulemaking.

Further, immediate issuance of this Interim Rule furthers the public interest by conforming the FDIC's rules with the SEC's requirements and organizing the rule to reduce redundancies and increase readability. For these same reasons, the FDIC finds good cause to publish this Interim Rule with an immediate effective date.^[1]

Although general notice and opportunity for public comment are not required prior to the effective date, the FDIC invites comments on all aspects of the Interim Rule, which the FDIC may revise if necessary or appropriate in light of the comments received.

B. Riegle Community Development and Regulatory Improvement Act

The Riegle Community Development and Regulatory Improvement Act provides that any new regulations or amendments to regulations prescribed by a Federal banking agency that impose additional reporting, disclosures, or other new requirements on insured depository institutions shall take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form, unless the agency determines, for good cause published with the rule, that the rule should become effective before such time.^[2] For the same reasons discussed above, the FDIC finds that good cause exists for an immediate effective date for the Interim Rule.

C. Paperwork Reduction Act

This rule contains no new collections of information as defined by the Paperwork Reduction Act.

D. Regulatory Flexibility Act

A regulatory flexibility analysis is required only when the agency must publish a notice of proposed rulemaking (5 U.S.C. 603, 604). Because the revisions to part 335 are published in interim final form without a notice of proposed rulemaking, no regulatory flexibility analysis is required.

E. Small Business Regulatory Enforcement Fairness Act

The Office of Management and Budget (OMB) has determinedthat the Interim Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA), 5 U.S.C. 801 et seq. As required by SBREFA, the FDIC will file the appropriate reports with Congress and the Government Accountability Office as soon as it receives a determination from OMB. Nevertheless, as discussed above, consistent with section 553(b)(B) of the APA, the FDIC has determined for good cause that general notice and opportunity for public comment is unnecessary. Therefore, in accordance with 5 U.S.C. 808(2), this Interim Rule will take effect upon publication in the Federal Register.

List of Subjects in 12 CFR Part 335

• Accounting
• Banks
• Banking
• Confidential business information
• Reporting and recordkeeping requirements
• Securities

For the reasons set forth in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation hereby amends part 335 of title 12 of the Code of Federal Regulations as follows:

PART 335—SECURITIES OF NONMEMBER INSURED BANKS

1. The authority citation for part 335 continues to read as follows:

Authority: 12 U.S.C. 1819; 15 U.S.C. 78l(i), 78m, 78n, 78p, 78w, 7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265.

2. Section 335.111 is revised to read as follows:

§ 335.111

Forms and schedules.

The Exchange Act regulations of the SEC, which are cross referenced under this part, require the filing of forms and schedules as applicable. Reference is made to SEC Exchange Act regulation 17 CFR part 249 regarding the availability of all applicable SEC Exchange Act forms. Required schedules are codified and are found within the context of the SEC's regulations. All forms and schedules shall be titled with the name of the FDIC in substitution for the name of the SEC. The filing of forms and schedules shall be made with the FDIC at the address in § 335.701 or may be filed electronically at FDIC connect at https://www2.fdicconnect.gov/​index.asp. However, electronic filing of Beneficial Ownership Forms 3, 4 and 5 is required. Copies of Forms 3 (§ 335.611), 4 (§ 335.612) and 5 (§ 335.613) and the instructions thereto may be printed and downloaded from https://www.fdic.gov/​regulations/​laws/​forms.

3. Section 335.121 is revised to read as follows:

§ 335.121

Listing standards related to audit committees.

The provisions of the applicable SEC regulation under section 10(A)(m) of the Exchange Act shall be followed as codified at 17 CFR part 240.

4. Section 335.201 is revised to read as follows:

§ 335.201

Securities exempted from registration.

Persons subject to registration requirements under Exchange Act section 12 and subject to this part shall follow the applicable and currently effective SEC regulations relative to exemptions from registration issued under sections 3 and 12 of the Exchange Act as codified at 17 CFR part 240.

5. Section 335.211 is revised to read as follows:

§ 335.211

Registration and reporting.

Persons with securities subject to registration under Exchange Act sections 12(b) and 12(g), required to report under Exchange Act section 13, and subject to this part shall follow the applicable and currently effective SEC regulations issued under section 12(b) of the Exchange Act as codified at 17 CFR part 240.

6. Section 335.221 is revised to read as follows:

§ 335.221

Forms for registration of securities and cross reference to Regulation FD (Fair Disclosure).

(a) The applicable forms for registration of securities and similar matters are codified in 17 CFR part 249. All forms shall be filed with the FDIC as appropriate and shall be titled with the name of the FDIC instead of the SEC.

(b) The requirements for Financial Statements can generally be found in Regulation S-X (17 CFR part 210). Banks may also refer to the instructions for Federal Financial Institutions Examination Council (FFIEC) Consolidated Reports of Condition and Income when preparing unaudited interim statements. The requirements for Management's Discussion and Analysis of Financial Condition and Results of Operations can be found at 17 CFR part 229. Additional requirements are provided at Industry Guide 3, Statistical Disclosure by Bank Holding Companies, which is found at 17 CFR part 229.

(c) The provisions of the applicable and currently effective SEC regulation FD shall be followed as codified at 17 CFR part 243.

7. Section 335.231 is revised to read as follows:

§ 335.231

Certification, suspension of trading, and removal from listing by exchanges.

The provisions of the applicable and currently effective SEC regulations under section 12(d) of the Exchange Act shall be followed as codified at 17 part CFR 240.

8. Section 335.241 is revised to read as follows:

§ 335.241

Unlisted trading.

The provisions of the applicable and currently effective SEC regulations under section 12(f) of the Exchange Act shall be followed as codified at 17 CFR part 240.

9. Section 335.251 is revised to read as follows:

§ 335.251

Forms for notification of action taken by national securities exchanges.

The applicable forms for notification of action taken by national securities exchanges are codified in 17 CFR part 249. All forms shall be filed with the FDIC as appropriate and shall be titled with the name of the FDIC instead of the SEC.

10. Section 335.261 is revised to read as follows:

§ 335.261

Exemptions, terminations, and definitions.

The provisions of the applicable and currently effective SEC regulations under sections 12(g) and 12(h) of the Exchange Act shall be followed as codified in 17 CFR part 240.

11. Section 335.301 is revised to read as follows:

§ 335.301

Reports of issuers of securities registered pursuant to section 12.

The provisions of the applicable and currently effective SEC regulations under section 13(a) of the Exchange Act shall be followed as codified at 17 CFR part 240.

12. Section 335.311 is revised to read as follows:

§ 335.311

Forms for annual, quarterly, current, and other reports of issuers.

(a) The applicable forms for annual, quarterly, current, and other reports are codified in 17 CFR part 249. All forms shall be filed with the FDIC as appropriate and shall be titled with the name of the FDIC instead of the SEC.

(b) The requirements for Financial Statements can generally be found in Regulation S-X (17 CFR part 210). Banks may also refer to the instructions for FFIEC Consolidated Reports of Condition and Income when preparing unaudited interim reports. The requirements for Management's Discussion and Analysis of Financial Condition and Results of Operations can be found at 17 CFR part 229. Additional requirements are included in Industry Guide 3, Statistical Disclosure by Bank Holding Companies, which is found at 17 CFR part 229.

13. Section 335.321 is revised to read as follows:

§ 335.321

Maintenance of records and issuer's representations in connection with required reports.

The provisions of the applicable and currently effective SEC regulations under 13(b) of the Exchange Act shall be followed as codified at 17 CFR part 240.

14. Section 335.331 is revised to read as follows:

§ 335.331

Acquisition statements, acquisition of securities by issuers, and other matters.

The provisions of the applicable and currently effective SEC regulations under sections 13(d) and 13(e) of the Exchange Act shall be followed as codifed at 17 CFR part 240.

15. Section 335.401 is revised to read as follows:

§ 335.401

Solicitations of proxies.

The provisions of the applicable and currently effective SEC regulations under sections 14(a) and 14(c) of the Exchange Act shall be followed as codified at 17 CFR part 240.

16. Section 335.501 is revised to read as follows:

§ 335.501

Tender offers.

The provisions of the applicable and currently effective SEC regulations under sections 14(d), 14(e), and 14(f) of the Exchange Act shall be followed as codified at 17 CFR part 240.

17. Section 335.601 is revised to read as follows:

§ 335.601

Requirements of section 16 of the Securities Exchange Act of 1934.

Persons subject to section 16 of the Exchange Act with respect to securities registered under this part shall follow the applicable and currently effective SEC regulations issued under section 16 of the Exchange Act (17 CFR part 240), except that the forms described in § 335.611 (FDIC Form 3), § 335.612 (FDIC Form 4), and § 335.613 (FDIC Form 5) shall be used in lieu of SEC Form 3, Form 4, and Form 5, respectively. FDIC Forms 3, 4, and 5 shall be filed electronically on FDIC connect at https://www2.fdicconnect.gov/​index.asp. Copies of FDIC Forms 3, 4, and 5 and the instructions thereto can be printed and downloaded at https://www.fdic.gov/​regulations/​laws/​forms.

18. Section 335.611 is revised to read as follows:

§ 335.611

Initial statement of beneficial ownership of securities (Form 3).

This form shall be filed in lieu of SEC Form 3 pursuant to SEC rules for initial statements of beneficial ownership of securities. The FDIC is authorized to solicit the information required by this form pursuant to sections 16(a) and 23(a) of the Exchange Act (15 U.S.C. 78p and 78w) and the rules and regulations thereunder. SEC regulations referenced in this form are codified at 17 CFR part 240.

19. Section 335.612 is revised to read as follows:

§ 336.612

Statement of changes in beneficial ownership of securities (Form 4).

This form shall be filed in lieu of SEC Form 4 pursuant to SEC Rules for statements of changes in beneficial ownership of securities. The FDIC is authorized to solicit the information required by this form pursuant to sections 16(a) and 23(a) of the Exchange Act (15 U.S.C. 78p and 78w) and the rules and regulations thereunder. SEC regulations referenced in this form are codified at 17 CFR part 240.

20. Section 335.613 is revised to read as follows:

§ 336.613

Annual statement of beneficial ownership of securities (Form 5).

This form shall be filed in lieu of SEC Form 5 pursuant to SEC Rules for annual statements of beneficial ownership of securities. The FDIC is authorized to solicit the information required by this form pursuant to sections 16(a) and 23(a) of the Exchange Act (15 U.S.C. 78p and 78w) and the rules and regulations thereunder. SEC regulations referenced in this form are codified at 17 CFR part 240.

21. Section 335.701 is revised to read as follows:

§ 335.701

Filing requirements, public reference, and confidentiality.

(a) Filing requirements. Unless otherwise indicated in this part, one original and four conformed copies of all papers required to be filed with the FDIC under the Exchange Act or regulations thereunder shall be filed at its office in Washington, DC. Official filings may be filed electronically at https://www2.fdicconnect.gov/​index.asp,, except for FDIC Beneficial Ownership Forms 3, 4, and 5 for which electronic filing is mandatory as described in § 335.801(b). Paper filings should be submitted to the FDIC's office in Washington, DC, and should be addressed as follows: Accounting and Securities Disclosure Section, Division of Supervision and Consumer Protection, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. Material may be filed by delivery to the FDIC through the mails or otherwise. The date on which paper filings are actually received by the designated FDIC office shall be the date of filing.

(b) Inspection. Except as provided in paragraph (c) of this section, all information filed regarding a security registered with the FDIC will be available for inspection at the Federal Deposit Insurance Corporation, Accounting and Securities Disclosure Section, Division of Supervision and Consumer Protection, 550 17th Street, NW., Washington, DC. Beneficial ownership report forms and other official filings that are electronically submitted to the FDIC are available for inspection on the FDIC's Web site at http://www2.fdic.gov/​efr/​.

(c) Nondisclosure of certain information filed. Any person filing any statement, report, or document with the FDIC under the Exchange Act may make a written objection to the public disclosure of any information contained therein in accordance with the procedure set forth in this paragraph (c) or the instructions provided for electronic filing available on the FDIC's Web site https://www2.fdicconnect.gov/​index.asp.

(1) The person shall omit from the statement, report, or document, when it is filed, the portion thereof that it desires to keep undisclosed (hereinafter called the confidential portion). In lieu thereof, it shall indicate at the appropriate place in the statement, report, or document that the confidential portion has been so omitted and filed separately with the FDIC.

(2) The person shall file with the copies of the statement, report, or document filed with the FDIC:

(i) As many copies of the confidential portion, each clearly marked “Confidential Treatment,” as there are copies of the statement, report, or document filed with the FDIC and with each exchange, if any. Each copy shall contain the complete text of the item and, notwithstanding that the confidential portion does not constitute the whole of the answer, the entire answer thereto; except that in the case where the confidential portion is part of a financial statement or schedule, only the particular financial statement or schedule need be included. All copies of the confidential portion shall be in the same form as the remainder of the statement, report, or document;

(ii) An application making objection to the disclosure of the confidential portion. Such application shall be on a sheet or sheets separate from the confidential portion and shall contain:

(A) An identification of the portion of the statement, report, or document that has been omitted;

(B) A statement of the grounds of the objection;

(C) Consent that the FDIC may determine the question of public disclosure upon the basis of the application, subject to proper judicial reviews;

(D) The name of each exchange, if any, with which the statement, report, or document is filed;

(iii) The copies of the confidential portion and the application filed in accordance with this paragraph shall be enclosed in a separate envelope marked “Confidential Treatment” and addressed to Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.

(3) Pending the determination by the FDIC as to the objection filed in accordance with paragraph (c)(2)(ii) of this section, the confidential portion will not be disclosed by the FDIC.

(4) If the FDIC determines that the objection shall be sustained, a notation to that effect will be made at the appropriate place in the statement, report, or document.

(5) If the FDIC determines that disclosure of the confidential portion is in the public interest, a finding and determination to that effect will be entered and notice of the finding and determination will be sent by registered or certified mail to the person.

(6) The confidential portion shall be made available to the public:

(i) Upon the lapse of 15 days after the dispatch of notice by registered or certified mail of the finding and determination of the FDIC described in paragraph (c)(5) of this section, or the date of the electronic filing, if prior to the lapse of such 15 days the person shall not have filed a written statement that he intends in good faith to seek judicial review of the finding and determination;

(ii) Upon the lapse of 60 days after the dispatch of notice by registered or certified mail, or the date of the electronic filing, of the finding and determination of the FDIC, if the statement described in paragraph (c)(6)(i) of this section shall have been filed and if a petition for judicial review shall not have been filed within such 60 days; or

(iii) If such petition for judicial review shall have been filed within such 60 days upon final disposition, adverse to the person, of the judicial proceedings.

(7) If the confidential portion is made available to the public, a copy thereof shall be attached to each copy of the statement, report, or document filed with the FDIC and with each exchange concerned.

22. Amend Section 335.801 by revising paragraphs (b)(1), (b)(2), (b)(6)(iv), and (b)(6)(v) to read as follows:

§ 335.801

Inapplicable SEC regulations; FDIC substituted regulations; additional information.

* * * * *

(b) Electronic filings. (1) The FDIC does not participate in the SEC's EDGAR (Electronic Data Gathering Analysis and Retrieval) electronic filing program (17 CFR part 232). The FDIC permits voluntary electronically transmitted filings and submissions of correspondence and other materials in electronic format to the FDIC, with the exception of Beneficial Ownership Reports (Forms 3, 4, and 5) for which electronic filing is mandatory. Beneficial Ownership Report filing requirements are provided in paragraph (b)(2) of this section.

(2) All reporting persons must electronically file Beneficial Ownership Reports (FDIC Forms 3, 4, and 5), including amendments and exhibits thereto, using the Internet-based interagency Beneficial Ownership Filings System, except that a reporting person that has obtained a continuing hardship exemption under these rules may file the forms with the FDIC in paper format. For electronic filing purposes, FDIC Forms 3, 4, and 5 are accessible at the Internet-based interagency Web site for Beneficial Ownership Filings at FDIC connect at https://www2.fdicconnect.gov/​index.asp. These forms and the instructions thereto are available for printing and downloading at http://www.fdic.gov/​regulations/​laws/​forms. A reporting person that has obtained a continuing hardship exemption under these rules may file the appropriate forms with the FDIC in paper format. Instructions for continuing hardship exemptions are provided in paragraph (b)(6) of this section.

* * * * *

(6) * * *

(iv) Where a continuing hardship exemption is granted with respect to an exhibit only, the paper format exhibit shall be filed with the FDIC under Form SE (17 CFR part 249). The name of the FDIC shall be substituted for the name of the SEC on the form. Form SE shall be filed as a paper cover sheet to all exhibits to Beneficial Ownership Reports submitted to the FDIC in paper form pursuant to a hardship exemption.

(v) Form SE may be filed with the FDIC up to six business days prior to, or on the date of filing of, the electronic form to which it relates but shall not be filed after such filing date. If a paper exhibit is submitted in this manner, requirements that the exhibit be filed with, provided with, or accompany the electronic filing shall be satisfied. Any requirements as to delivery or furnishing the information to persons other than the FDIC shall not be affected by this section.

* * * * *

By order of the Board of Directors.

Federal Deposit Insurance Corporation.

Dated at Washington, DC, this 9th day of November 2010.

Robert E. Feldman,

Executive Secretary.

Footnotes

1.  5 U.S.C. 553(d)(3).

2.  12 U.S.C. 4802.