Policy Statement on Section 9(13) of the Federal Reserve Act, 88 FR 7848, FR Doc 2023-02192

Bitcoin Research — Law, Regulation, Markets & Origins (2026)

Banking

2023-02-07

Document text

Research, not advice. Part of the Bitcoin research archive (October 2026). Claims labelled unverified, contested or fringe are reported, not endorsed; statuses of bills and rules are as of the date checked. Government, court and patent records are public domain; the research notes are CC BY 4.0.

7848              Federal Register / Vol. 88, No. 25 / Tuesday, February 7, 2023 / Rules and Regulations

                                                    temperature and pressure for the test, as               threshold power setting test for the                   4.1.1.2.4 Conventional gas cooking
                                                    calculated in section 4.1.1.2.1 of this                 cooking zone, in degrees Celsius; and                top per-cycle active mode gas energy
                                                    appendix; and H, either Hn or Hp, the               TS,MBT = the smoothened water temperature                consumption. Calculate the per-cycle
                                                    heating value of the gas used in the test               at the end of the maximum-below-
                                                    as specified in sections 2.2.2.1 and                                                                         active mode gas energy consumption of
                                                                                                            threshold power setting test for the                 a conventional gas cooking top, ECGG, in
                                                    2.2.2.2 of this appendix, expressed in
                                                                                                            cooking zone, in degrees Celsius.
                                                    Btu per standard cubic foot of gas;                                                                          Btu, using the following equation:
                                                TS,MAT = the smoothened water temperature               *      *      *       *      *
                                                    at the end of the minimum-above-

                                                Where:                                                  The SUPPLEMENTARY INFORMATION                            2023, the Federal Deposit Insurance
                                                n, mz, and 2853 are defined in section                  section provides examples of how the                     Corporation (FDIC), the Office of the
                                                     4.1.1.1.2 of this appendix; and                    policy statement would be applied to                     Comptroller of the Currency (OCC), and
                                                Egz = the normalized gas energy consumption             certain crypto-asset-related activities.                 the Board issued a statement
                                                     representative of the Energy Test Cycle            DATES: This policy statement is effective                highlighting significant risks associated
                                                     for each cooking zone, as calculated in                                                                     with crypto-assets and the crypto-asset
                                                     section 4.1.1.2.2 of this appendix, in Btu.
                                                                                                        on February 7, 2023.
                                                                                                        FOR FURTHER INFORMATION CONTACT:                         sector that banking organizations should
                                                *      *     *       *      *                                                                                    be aware of, including significant
                                                [FR Doc. 2023–02200 Filed 2–6–23; 8:45 am]
                                                                                                        Asad Kudiya, Assistant General
                                                                                                        Counsel, (202) 475–6358; Andrew                          volatility in crypto-asset markets, risks
                                                BILLING CODE 6450–01–P                                                                                           of fraud among crypto-asset sector
                                                                                                        Hartlage, Special Counsel, (202) 452–
                                                                                                        6483; Kelley O’Mara, Senior Counsel,                     participants, legal uncertainties, and
                                                                                                        (202) 973–7497; or Katherine Di Lucido,                  heightened risks associated with open,
                                                FEDERAL RESERVE SYSTEM                                  Attorney, (202) 452–2352, Legal                          public, and/or decentralized networks.3
                                                                                                        Division; Kavita Jain, Deputy Associate                  As part of its careful review of proposals
                                                12 CFR Part 208                                                                                                  from banking organizations to engage in
                                                                                                        Director, (202) 452–2062, Division of
                                                [Docket No. R–1800]                                     Supervision and Regulation, Board of                     activities involving crypto-assets, and in
                                                                                                        Governors of the Federal Reserve                         light of these risks, the Board is
                                                RIN 7100–AG–53                                                                                                   clarifying its interpretation of section
                                                                                                        System, 20th Street and C Streets NW,
                                                Policy Statement on Section 9(13) of                    Washington, DC 20551. For users of                       9(13) of the Federal Reserve Act (Act)
                                                the Federal Reserve Act                                 TTY–TRS, please call 711 from any                        and setting out a rebuttable presumption
                                                                                                        telephone, anywhere in the United                        for how it will exercise its authority
                                                AGENCY: Board of Governors of the                       States.                                                  under that statutory provision. This
                                                Federal Reserve System (Board).                         SUPPLEMENTARY INFORMATION:                               Supplementary Information also
                                                ACTION: Final rule.                                                                                              provides examples of how the Board
                                                                                                        I. Background                                            intends to apply this presumption in the
                                                SUMMARY: The Board is issuing a policy                     In recent years, the Board has                        context of certain crypto-asset-related
                                                statement interpreting section 9(13) of                 received a number of inquiries,                          activities.
                                                the Federal Reserve Act and setting out                 notifications, and proposals from state                     As expressed in the policy statement,
                                                a rebuttable presumption that it will                   member banks and applicants for                          the Board generally believes that the
                                                exercise its discretion under that                      membership regarding potential                           same bank activity, presenting the same
                                                provision to limit state member banks to                engagement in novel and unprecedented                    risks, should be subject to the same
                                                engaging as principal in only those                     activities.1 For example, the Board has                  regulatory framework, regardless of
                                                activities that are permissible for                     received inquiries from banks regarding                  which agency supervises the bank. This
                                                national banks—in each case, subject to                 potentially engaging in certain activities               principle of equal treatment helps to
                                                the terms, conditions, and limitations                  involving crypto-assets.2 In January                     level the competitive playing field
                                                placed on national banks with respect to                                                                         among banks with different charters and
                                                the activity—unless those activities are                   1 See SR Letter 22–6, CA Letter 22–6: Engagement      different federal supervisors, and to
                                                permissible for state banks by federal                  in Crypto-Asset-Related Activities by Federal            mitigate the risks of regulatory arbitrage.
                                                statute or under part 362 of the Federal                Reserve-Supervised Banking Organizations (August
                                                                                                        16, 2022) (providing guidance to banking
                                                                                                                                                                    In alignment with this principle, the
                                                Deposit Insurance Corporation’s                         organizations engaging or seeking to engage in           Board generally presumes that it will
                                                regulations. The policy statement also                  crypto-asset-related activities).                        exercise its discretion under section
                                                reiterates to state member banks that                      2 Throughout this SUPPLEMENTARY INFORMATION,
                                                                                                                                                                 9(13) of the Act to limit state member
                                                legal permissibility is a necessary, but                the term ‘‘crypto-assets’’ refers to digital assets
                                                                                                        issued using distributed ledger technology and
                                                not sufficient, condition to establish that             cryptographic techniques (for example, bitcoin and       through issuance, storage, or transmission on an
                                                a state member bank may engage in a                     ether), but does not include such assets to the          open, public, and/or decentralized network, or
                                                particular activity. A state member bank                extent they are more appropriately categorized           similar system), the Board reserves the right to treat

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                                                                                                        within a recognized, traditional asset class (for        it as a ‘‘crypto-asset.’’
                                                must at all times conduct its business                                                                              3 Board, FDIC, and OCC, Joint Statement on
                                                                                                        example, securities with an effective registration
                                                and exercise its powers with due regard                 statement filed under the Securities Act of 1933 that    Crypto-Asset Risks to Banking Organizations, at 1
                                                to safety and soundness. For instance, it               are issued, stored, or transferred through the system    (January 3, 2023) (Joint Statement). In the Joint
                                                should have in place internal controls                  of a regulated clearing agency and in compliance         Statement, ‘‘crypto-assets’’ refers ‘‘generally to any
                                                                                                        with all applicable federal and state securities         digital asset implemented using cryptographic
                                                and information systems that are                        laws). To the extent transmission using distributed      techniques.’’ The Board believes that these risks
                                                appropriate and adequate in light of the                ledger technology and cryptographic techniques           similarly apply to crypto-assets as defined in this

                                                                                                                                                                                                                          ER07FE23.045</GPH>
                                                nature, scope, and risks of its activities.             changes the risks of a traditional asset (for example,   SUPPLEMENTARY INFORMATION. See supra note 2.

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                                                                  Federal Register / Vol. 88, No. 25 / Tuesday, February 7, 2023 / Rules and Regulations                                                    7849

                                                banks to engaging as principal in only                  B. Application                                         accordance with principles of safe and
                                                those activities that are permissible for                  This policy statement applies to                    sound banking.
                                                national banks—in each case, subject to                 insured and uninsured state member                        In assessing permissibility, the Board
                                                the terms, conditions, and limitations                  banks. The statement does not impact                   is intending to align its process with
                                                placed on national banks with respect to                the legal obligation of insured state                  that of the FDIC under section 24 of the
                                                the activity—unless those activities are                member banks to seek approval from the                 FDIA.12 If the FDIC, by rule, permits
                                                permissible for state banks by federal                  FDIC when required under section 24 of                 insured state banks to engage in the
                                                statute or under part 362 of the FDIC’s                 the FDIA and part 362 of the FDIC’s                    activity, no Board approval would be
                                                regulations. The Board also reiterates to               regulations. As established under those                required to establish permissibility.13
                                                state member banks that legal                           provisions, insured state banks may not                However, if the FDIC permits the
                                                permissibility is a necessary, but not                  engage as principal in any type of                     activity only for a particular bank,
                                                sufficient, condition to establish that a               activity that is not permissible for a                 separate Board approval would be
                                                state member bank may engage in a                       national bank unless—(i) the FDIC has                  required for all other state member
                                                particular activity. A state member bank                determined that the activity would pose                banks.
                                                must at all times conduct its business                  no significant risk to the Deposit
                                                and exercise its powers with due regard                                                                           In a case where a state member bank
                                                                                                        Insurance Fund; and (ii) the state bank                determines that an activity is
                                                to safety and soundness.4 For instance,                 is, and continues to be, in compliance
                                                it should have in place internal controls                                                                      permissible for national banks under
                                                                                                        with applicable capital standards.11                   federal statute, OCC regulations, or OCC
                                                and information systems that are                           By issuing this statement, the Board is
                                                appropriate in light of the nature, scope,                                                                     interpretation, the bank may only
                                                                                                        setting out a clear expectation that state
                                                and risks of its activities.5                                                                                  engage in the activity if the bank
                                                                                                        member banks look to federal statutes,
                                                                                                                                                               adheres to the terms, conditions, and
                                                A. Legal Authority                                      OCC regulations, and OCC
                                                                                                                                                               limitations placed on national banks by
                                                                                                        interpretations to determine whether an
                                                  Under section 9(13) of the Act, the                                                                          the OCC with respect to the activity. For
                                                                                                        activity is permissible for national
                                                Board ‘‘may limit the activities’’ of a                                                                        example, if the OCC conditions
                                                                                                        banks. If no such source authorizes
                                                state member bank and its subsidiaries                                                                         permissibility on a national bank
                                                                                                        national banks to engage in the activity,
                                                to those activities that are permissible                                                                       demonstrating, to the satisfaction of its
                                                                                                        then state member banks should look to
                                                for a national bank in a manner                                                                                supervisory office, that the bank has
                                                                                                        whether there is authority for state
                                                consistent with section 24 of the Federal                                                                      controls in place to conduct the activity
                                                                                                        banks to engage in the activity under
                                                Deposit Insurance Act (FDIA).6 Section                                                                         in a safe and sound manner, and
                                                                                                        federal statute or part 362 of the FDIC’s
                                                24 of the FDIA generally prohibits                                                                             receiving a written nonobjection from
                                                                                                        regulations. If there also is no authority
                                                insured state banks from engaging as                                                                           OCC supervisory staff before engaging in
                                                                                                        for a state bank to engage in the activity
                                                principal in any activity that is not                                                                          a particular activity, then the activity
                                                                                                        under federal statute or part 362 of the
                                                permissible for national banks, unless                                                                         would not be permissible for a state
                                                                                                        FDIC’s regulations, a state member bank
                                                authorized by federal statute or the                                                                           member bank unless the bank makes the
                                                                                                        may not engage in the activity unless it
                                                FDIC.7                                                                                                         same demonstration and receives a
                                                                                                        has received the permission of the
                                                                                                                                                               written nonobjection from Federal
                                                  The National Bank Act enumerates                      Board under § 208.3(d)(2) of the Board’s
                                                                                                                                                               Reserve supervisory staff before
                                                certain powers that national banks may                  Regulation H. Under that provision, a
                                                                                                                                                               commencing such activity.
                                                exercise and authorizes national banks                  state member bank may not, without the
                                                to exercise ‘‘all such incidental powers                permission of the Board, change the                    C. Safety and Soundness
                                                as shall be necessary to carry on the                   general character of its business or the
                                                business of banking.’’ 8 The OCC has the                scope of the corporate powers it                          In the statement, the Board also
                                                authority to interpret provisions of the                exercised at the time of its admission to              reiterates to state member banks that
                                                National Bank Act and is charged with                   membership. In such instances, insured                 legal permissibility is a necessary, but
                                                the ‘‘discretion to authorize activities                state banks would be required to submit                not sufficient, condition to establish that
                                                beyond those specifically enumerated,’’                 an application to the FDIC under part                  a state member bank may engage in a
                                                within reasonable bounds.9 Section                      362 of the FDIC’s regulations.                         particular activity. A state member bank
                                                7.1000 of the OCC’s regulations                            In determining whether to grant a                   must at all times conduct its business
                                                identifies the criteria that the OCC uses               state member bank permission to engage                 and exercise its powers with due regard
                                                to determine whether an activity is                     in an activity under § 208.3(d)(2) of                  to safety and soundness.14 For instance,
                                                authorized as part of, or incidental to,                Regulation H, the Board, consistent with               it should have in place internal controls
                                                the business of banking under 12 U.S.C.                 the policy statement, will rebuttably                  and information systems that are
                                                24(Seventh).10 If a national bank has not               presume that a state member bank is                    appropriate to the nature, scope, and
                                                been authorized by federal law,                         prohibited from engaging as principal in
                                                including the National Bank Act, to                     any activity that is impermissible for                    12 See, e.g., FDIC FIL–54–2014: Filing and

                                                engage in an activity, then national                    national banks, unless the activity is                 Documentation Procedures for State Banks
                                                                                                                                                               Engaging, Directly or Indirectly, in Activities or
                                                banks are not permitted to engage in                    permissible for state banks under federal              Investments that are Permissible for National Banks
                                                such activity.                                          statute or part 362 of the FDIC’s                      (November 19, 2014).
                                                                                                        regulations. This presumption may be                      13 As noted below, legal permissibility is a

                                                  4 12 CFR 208.3(d)(1).                                 rebutted if there is a clear and                       necessary, but not sufficient, condition to establish
                                                                                                                                                               that a state member bank may engage in a particular
                                                  5 12 CFR 208, app. D–1.                               compelling rationale for the Board to

ddrumheller on DSK120RN23PROD with RULES
                                                                                                                                                               activity. Regardless of the legal permissibility of a
                                                   6 12 U.S.C. 330 (as amended by Federal Deposit
                                                                                                        allow the proposed deviation in                        proposed activity, if commencing the proposed
                                                Insurance Corporation Improvement Act of 1991           regulatory treatment among federally                   activity would constitute a change in the general
                                                § 303(b), Public Law 102–242, 105 Stat. 2236, 2353).                                                           character of the state member bank’s business or in
                                                   7 12 U.S.C. 1831a(a); 12 CFR part 362.
                                                                                                        supervised banks, and the state member
                                                                                                                                                               the scope of corporate powers it exercised at the
                                                   8 12 U.S.C. 24(Seventh).                             bank has robust plans for managing the                 time of its admission to membership, prior
                                                   9 NationsBank of North Carolina, N.A. v. Variable    risks of the proposed activity in                      permission of the Federal Reserve pursuant to
                                                Annuity Life Ins. Co., 513 U.S. 251, 258 n.2 (1995).                                                           § 208.3(d)(2) of Regulation H would be required.
                                                   10 12 CFR 7.1000.                                      11 12 U.S.C. 1831a(a)(1).                               14 12 CFR 208.3(d)(1).

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                                                7850               Federal Register / Vol. 88, No. 25 / Tuesday, February 7, 2023 / Rules and Regulations

                                                risks of its activities.15 Further, a state             or rule expressly permitting state banks                especially in comparison to traditional
                                                member bank must comply at all times                    to hold crypto-assets as principal.                     asset classes.
                                                with Regulation H, conditions of                        Therefore, the Board would                                 Issuing Dollar Tokens. Certain state
                                                membership prescribed by the Board,16                   presumptively prohibit state member                     member banks have proposed to issue
                                                and other applicable laws and                           banks from engaging in such activity                    dollar-denominated tokens (dollar
                                                regulations, including those related to                 under section 9(13) of the Act.18                       tokens) using distributed ledger
                                                consumer compliance and anti-money                                                                              technology or similar technologies. The
                                                                                                           The Board believes this presumption
                                                laundering. With respect to any novel                                                                           permissibility of the issuance of dollar
                                                                                                        is bolstered by safety and soundness
                                                and unprecedented activities, such as                                                                           tokens to facilitate payments for
                                                                                                        concerns.19 The Financial Stability
                                                those associated with crypto-assets or                                                                          national banks is subject to OCC
                                                use of distributed ledger technology, it                Oversight Council has observed that, in
                                                                                                                                                                Interpretive Letters 1174 and 1179,
                                                is particularly important for a state                   the absence of a fundamental economic
                                                                                                                                                                including the conditions set out
                                                member bank to have in place                            use case, the value of most crypto-assets
                                                                                                                                                                therein.21 A state member bank seeking
                                                appropriate systems to monitor and                      is driven largely by sentiment and
                                                                                                                                                                to issue a dollar token would be
                                                control risks, including liquidity, credit,             future expectations, and not by cash
                                                                                                                                                                required to adhere to all the conditions
                                                market, operational (including                          flows from providing goods or services
                                                                                                                                                                the OCC has placed on national banks
                                                cybersecurity and use of third parties),                outside the crypto-asset ecosystem.20                   with respect to such activity, including
                                                and compliance risks (including                         This prevents firms that hold crypto-                   demonstrating, to the satisfaction of
                                                compliance with Bank Secrecy Act and                    assets from engaging in prudent risk                    Federal Reserve supervisors, that the
                                                Office of Foreign Asset Control                         management based on the underlying                      bank has controls in place to conduct
                                                requirements to reduce the risk of illicit              value of most crypto-assets, their                      the activity in a safe and sound manner,
                                                financial activity). Federal Reserve                    anticipated discounted cash flows, or                   and receiving a supervisory
                                                supervisors will expect state member                    the historic behavior of the relevant                   nonobjection before commencing such
                                                banks to be able to explain and                         markets. Moreover, the crypto-asset                     activity.
                                                demonstrate an effective control                        sector—which is globally dispersed—is                      The Board generally believes that
                                                environment related to such activities.                 largely unregulated or noncompliant                     issuing tokens on open, public, and/or
                                                D. Specific Activities of Interest                      with regulation from a market-conduct                   decentralized networks, or similar
                                                                                                        perspective, and issuers are often not                  systems is highly likely to be
                                                   The Board has received inquiries as to               subject to or not compliant with                        inconsistent with safe and sound
                                                the permissibility of certain crypto-                   disclosure and accounting requirements.                 banking practices.22 The Board believes
                                                asset-related activities for state member               This opacity may make it difficult or                   such tokens raise concerns related to
                                                banks. Below, the Board discusses how                   impossible to assess market and                         operational, cybersecurity, and run
                                                it would presumptively apply section                    counterparty exposure risks. Further,
                                                9(13) of the Act to these activities. In                                                                        risks, and may also present significant
                                                                                                        engagement in crypto-asset transactions                 illicit finance risks, because—depending
                                                practice, this presumption could be                     can present significant illicit finance
                                                rebutted if there is a clear and                                                                                on their design—such tokens could
                                                                                                        risks, in part due to the pseudonymity                  circulate continuously, quickly,
                                                compelling rationale for the Board to
                                                                                                        of transactors and validators. Finally,                 pseudonymously, and indefinitely
                                                allow deviations in regulatory treatment
                                                                                                        crypto-assets that are issued or                        among parties unknown to the issuing
                                                among federally supervised banks, and
                                                                                                        transacted on open, public, and/or                      bank. Importantly, the Board believes
                                                the state member bank has robust plans
                                                for managing the risks of such activities               decentralized ledgers may involve                       such risks are pronounced where the
                                                in accordance with principles of safe                   significant cybersecurity risks—                        issuing bank does not have the
                                                and sound banking. However, the Board                                                                           capability to obtain and verify the
                                                has not yet been presented with facts                   OCC Interpretive Letter No. 1174 (January 4, 2021)      identity of all transacting parties,
                                                                                                        (Interpretive Letter 1174); OCC Interpretive Letter     including for those using unhosted
                                                and circumstances that would warrant                    No. 1179 (November 18, 2021) (Interpretive Letter
                                                rebutting its presumption. Nothing in                   1179). The OCC has required a national bank to
                                                                                                                                                                wallets.23
                                                the policy statement would prohibit a                   divest crypto-assets held as principal that it          List of Subjects in 12 CFR Part 208
                                                state member bank, or an applicant to                   acquired through a merger with a state bank.
                                                become a state member bank, once
                                                                                                        Specifically, the OCC conditioned its recent              Accounting; Agriculture; Banks,
                                                                                                        approval of the merger between Flagstar Bank, FSB       Banking; Confidential business
                                                approved, from providing safekeeping                    and New York Community Bank into Flagstar Bank,
                                                services for crypto-assets in a custodial               NA on the divestiture of holdings of ‘‘Hash,’’ a        information; Consumer protection;
                                                capacity if such activities are conducted               crypto-asset, after a conformance period, as well as    Crime; Currency; Federal Reserve
                                                in a safe and sound manner and in
                                                                                                        a commitment not to increase holdings of any            System; Flood insurance; Insurance;
                                                                                                        crypto-related asset or token ‘‘unless and until the    Investments; Mortgages; Reporting and
                                                compliance with consumer, anti-money-                   OCC determines that . . . Hash or other crypto-
                                                laundering, and anti-terrorist-financing                related holdings are permissible for a national         recordkeeping requirements; Securities.
                                                laws.                                                   bank.’’ OCC Conditional Approval Letter No. 1299,
                                                                                                        at 9 (October 27, 2022).
                                                                                                                                                                12 CFR Chapter II
                                                   Holding Crypto-Assets as Principal.
                                                The Board has not identified any
                                                                                                           18 In addition, insured state member banks would
                                                                                                                                                                Authority and Issuance
                                                                                                        need to seek approval to hold crypto-assets, other
                                                authority permitting national banks to                  than those permitted by OCC Interpretive Letters          For the reasons set forth in the
                                                hold most crypto-assets, including                      1174 and 1179, from the FDIC under section 24 of        Supplementary Information, part 208 of
                                                bitcoin and ether, as principal in any                  the FDIA and part 362 of the FDIC’s regulations.        chapter II of title 12 of the Code of
                                                                                                           19 See Joint Statement (noting that holding as
                                                amount,17 and there is no federal statute

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                                                                                                        principal crypto-assets that are issued, stored, or
                                                                                                                                                                   21 Interpretive Letter 1174; Interpretive Letter
                                                                                                        transferred on an open, public and/or decentralized
                                                  15 12 CFR 208, app. D–1.                                                                                      1179.
                                                                                                        network, or similar system, is highly likely to be
                                                  16 12 CFR 208.3(d)(3).                                inconsistent with safe and sound banking                   22 See Joint Statement, at 2.
                                                   17 To date, the OCC has not made a determination     practices).                                                23 Interpretive Letter 1174, at 4 (quoting

                                                addressing the permissibility of a national bank           20 Financial Stability Oversight Council, Report     President’s Working Group on Financial Markets,
                                                holding crypto-assets as principal, other than          on Digital Asset Financial Stability Risks and          Statement on Key Regulatory and Supervisory
                                                ‘‘stablecoins’’ to facilitate payments subject to the   Regulation, at 27 (October 3, 2022); see also id., at   Issues Relevant to Certain Stablecoins, at 3
                                                conditions of OCC Interpretive Letter 1179. See         23–28.                                                  (December 23, 2020)).

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                                                                  Federal Register / Vol. 88, No. 25 / Tuesday, February 7, 2023 / Rules and Regulations                                               7851

                                                Federal Regulations is amended as                       U.S.C. 330) to limit state member banks               362 of this title. As established under
                                                follows:                                                and their subsidiaries to engaging as                 those provisions, insured state banks
                                                                                                        principal in only those activities that are           may not engage as principal in any type
                                                PART 208—MEMBERSHIP OF STATE                            permissible for national banks—in each                of activity that is not permissible for a
                                                BANKING INSTITUTIONS IN THE                             case, subject to the terms, conditions,               national bank unless—(1) the FDIC has
                                                FEDERAL RESERVE SYSTEM                                  and limitations placed on national                    determined that the activity would pose
                                                (REGULATION H)                                          banks with respect to the activity—                   no significant risk to the Deposit
                                                                                                        unless those activities are permissible               Insurance Fund; and (2) the state bank
                                                ■ 1. The authority citation for part 208                for state banks by federal statute or                 is, and continues to be, in compliance
                                                continues to read as follows:                           under 12 CFR part 362. For example, if                with applicable capital standards.
                                                  Authority: 12 U.S.C. 24, 36, 92a, 93a,                the OCC conditions permissibility on a                   (f) The Board also reiterates to state
                                                248(a), 248(c), 321–338a, 371d, 461, 481–486,           national bank demonstrating, to the                   member banks that legal permissibility
                                                601, 611, 1814, 1816, 1817(a)(3), 1817(a)(12),          satisfaction of its supervisory office, that          is a necessary, but not sufficient,
                                                1818, 1820(d)(9), 1833(j), 1828(o), 1831,               the bank has controls in place to                     condition to establish that a state
                                                1831o, 1831p–1, 1831r–1, 1831w, 1831x,                  conduct the activity in a safe and sound              member bank may engage in a particular
                                                1835a, 1882, 2901–2907, 3105, 3310, 3331–
                                                                                                        manner, and receiving a written                       activity. Under § 208.3(d)(1), a state
                                                3351, 3905–3909, 5371, and 5371 note; 15
                                                U.S.C. 78b, 78I(b), 78l(i), 780–4(c)(5), 78q,           nonobjection from OCC supervisory                     member bank must at all times conduct
                                                78q–1, 78w, 1681s, 1681w, 6801, and 6805;               staff before engaging in a particular                 its business and exercise its powers
                                                31 U.S.C. 5318; 42 U.S.C. 4012a, 4104a,                 activity, then the activity would not be              with due regard to safety and
                                                4104b, 4106, and 4128.                                  permissible for a state member bank                   soundness. Under appendix D–1 of this
                                                                                                        unless the bank makes the same                        part, at a minimum, a state member
                                                Subpart J—Interpretations                               demonstration and receives a written                  bank should have in place and
                                                                                                        nonobjection from Federal Reserve                     implement internal controls and
                                                ■ 2. Add § 208.112 to read as follows:                  supervisory staff before commencing                   information systems that are appropriate
                                                § 208.112 Policy statement on section                   such activity.                                        for the nature, scope, and risks of its
                                                9(13) of the Federal Reserve Act.                          (d) If a state member bank or its                  activities. Further, under § 208.3(d)(3), a
                                                                                                        subsidiary proposes to engage in an                   state member bank must comply at all
                                                  (a) Under section 9(13) of the Federal
                                                                                                        activity as principal that is not                     times with this part and conditions of
                                                Reserve Act (12 U.S.C. 330), a state                    permissible for a national bank or for an
                                                member bank may ‘‘exercise all                                                                                membership prescribed by the Board; in
                                                                                                        insured state member bank under                       addition, a state member bank must
                                                corporate powers granted it by the State                federal statute or part 362 of this title,
                                                in which it was created . . . except that                                                                     comply with other applicable laws and
                                                                                                        the state member bank or subsidiary                   regulations, including those related to
                                                the [Board] may limit the activities of                 may not engage in the activity unless
                                                State member banks and subsidiaries of                                                                        consumer compliance and anti-money
                                                                                                        the bank has received the prior                       laundering. With respect to any novel
                                                State member banks in a manner                          permission of the Board under
                                                consistent with section 24 of the Federal                                                                     and unprecedented activities,
                                                                                                        § 208.3(d)(2). Under that provision, a                appropriate systems to monitor and
                                                Deposit Insurance Act.’’ The Board                      state member bank may not, without the
                                                interprets this provision as vesting the                                                                      control risks, including liquidity, credit,
                                                                                                        permission of the Board, change the                   market, operational, and compliance
                                                Board with the authority to prohibit or                 general character of its business or the
                                                otherwise restrict state member banks                                                                         risks, are particularly important; Federal
                                                                                                        scope of the corporate powers it                      Reserve supervisors will expect banks to
                                                and their subsidiaries from engaging as                 exercises at the time of its admission. In
                                                principal in any activity (including                                                                          be able to explain and demonstrate an
                                                                                                        determining whether to grant                          effective control environment related to
                                                acquiring or retaining any investment)                  permission to engage in an activity
                                                that is not permissible for a national                                                                        such activities.
                                                                                                        under § 208.3(d)(2), the Board will
                                                bank, unless the activity is permissible                rebuttably presume that a state member                  By order of the Board of Governors of the
                                                for state banks by federal statute or                   bank and its subsidiaries are prohibited              Federal Reserve System, January 27, 2023.
                                                under part 362 of the Federal Deposit                   from engaging as principal in any                     Ann E. Misback,
                                                Insurance Corporation’s (FDIC)                          activity that is impermissible for                    Secretary of the Board.
                                                regulations, 12 CFR part 362. The Board                 national banks, unless the activity is                [FR Doc. 2023–02192 Filed 2–6–23; 8:45 am]
                                                reminds state member banks of the                       permissible for state banks under federal             BILLING CODE 6210–01–P
                                                fundamental canon of federal banking                    statute or part 362 of this title. This
                                                law that activities are permissible for a               presumption may be rebutted if there is
                                                national bank only if authority is                      a clear and compelling rationale for the              DEPARTMENT OF TRANSPORTATION
                                                provided under federal law, including                   Board to allow the proposed deviation
                                                the National Bank Act.                                  in regulatory treatment among federally               Federal Aviation Administration
                                                  (b) The Board generally believes that                 supervised banks, and the state member
                                                the same bank activity, presenting the                  bank has robust plans for managing the                14 CFR Part 39
                                                same risks, should be subject to the                    risks of the proposed activity in                     [Docket No. FAA–2022–1298; Project
                                                same regulatory framework, regardless                   accordance with principles of safe and                Identifier MCAI–2022–00437–T; Amendment
                                                of which agency supervises the bank.                    sound banking. Depending on the                       39–22313; AD 2023–02–06]
                                                This principle of equal treatment helps                 applicant and the activity, an
                                                to level the competitive playing field                                                                        RIN 2120–AA64
                                                                                                        application to the FDIC may also be

ddrumheller on DSK120RN23PROD with RULES
                                                among banks with different charters and                 required under section 24 of the Federal              Airworthiness Directives; BAE
                                                different federal supervisors and to                    Deposit Insurance Act (12 U.S.C. 1831a).              Systems (Operations) Limited
                                                mitigate the risks of regulatory arbitrage.                (e) This statement does not impact the
                                                                                                                                                              Airplanes
                                                  (c) In alignment with this principle,                 legal obligation of insured state member
                                                the Board generally presumes that it                    banks to seek approval from the FDIC                  AGENCY: Federal Aviation
                                                will exercise its discretion under section              when required under section 24 of the                 Administration (FAA), Department of
                                                9(13) of the Federal Reserve Act (12                    Federal Deposit Insurance Act and part                Transportation (DOT).

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