[Federal Register Volume 67, Number 224 (Wednesday, November 20, 2002)]
[Rules and Regulations]
[Pages 69990-69994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29407]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 366

RIN 3064-AC29


Minimum Standards of Integrity and Fitness for an FDIC Contractor

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is issuing 
this rule which governs conflicts of interest, ethical 
responsibilities, and use of confidential information by independent 
contractors seeking to do business with the FDIC. This rule ensures 
that any individual who is performing, directly or indirectly, any 
function or service on behalf of the FDIC meets minimum standards of 
integrity and fitness. It also prohibits certain persons from 
performing any service on behalf of the FDIC. This rule makes four 
changes from the interim final rule that the FDIC published on May 15, 
2002. These changes are described below in Section II of the 
Supplementary Information.

EFFECTIVE DATE: December 20, 2002.

FOR FURTHER INFORMATION CONTACT: Martin A. Blumenthal, Counsel, (202) 
736-0359, Peter M. Somerville, Counsel, (202) 736-0110, or Thomas E. 
Nixon, Senior Attorney, (202) 898-8766, Legal Division, Federal Deposit 
Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. 
These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Overview

    This rule sets forth integrity and fitness provisions for FDIC 
contractors in three areas. The first area regards those persons from 
whom the FDIC is prohibited from entering into a contract. The second 
area identifies integrity and fitness responsibilities for independent 
contractors. These include conflicts of interest, minimum standards of 
ethical responsibility, confidential information, and information that 
contractors must disclose to the FDIC. The last area regards a 
contractor's expectations, rights and obligations. These include what 
advice and determinations the FDIC will provide a contractor, 
reconsiderations and reviews of those determinations, and the possible 
consequences a person may face for violating the provisions of this 
rule.

B. Authority

    The statutory authorities for adopting this rule are our general 
rulemaking authority found at section 9 (Tenth) of the Federal Deposit 
Insurance Act (FDI Act), 12 U.S.C. 1819 (Tenth); and sections 12(f)(3) 
and (4) of the FDI Act, 12 U.S.C. 1822(f)(3) and (4). Section 19 of the 
Resolution Trust Corporation Completion Act (RTCCA), Public Law 103-
204, 107 Stat. 2369 (1993), required the addition of section 12(f) to 
the FDI Act.
    We may establish other integrity and fitness policies where we 
determine such policies are required by law or appropriate to maintain 
the integrity of our programs. Any such policies may be independent of, 
in conjunction with, or in addition to the restrictions set forth in 
this rule.
    We may also, temporarily or permanently, suspend this rule or 
exempt a person from compliance with any part of this rule for good 
cause shown, in order to protect our interests or to provide an orderly 
transfer of services to another person.

C. Background

    The contractor integrity and fitness rules, based on statutory 
requirements, are regulatory tools the FDIC uses to assure that certain 
of its contractors meet minimum standards of competence, experience, 
integrity and fitness. See Federal Home Loan Bank Act, section 
21A(p)(6), as added by section 501(a) of the Financial Institutions 
Reform, Recovery, and Enforcement Act of 1989, Public Law 101-73, 103 
Stat. 183. This statute was enacted to ensure that no person who 
contributed to the failure of an insured depository institution could 
contract with the FDIC without disclosure and considerable scrutiny.
    On June 24, 1994, we published a proposed rule applicable to 
independent contractors (59 FR 32661-32668), as required by section 
12(f)(3) of the FDI Act, 12 U.S.C. 1822(f)(3). That rulemaking proposed 
standards governing conflicts of interest, ethical responsibilities, 
and use of confidential information. It also proposed procedures for 
ensuring that independent contractors meet minimum standards for 
competence, experience, integrity, and fitness. We received six comment 
letters. After careful consideration of each comment and numerous 
changes that the Office of Government Ethics (OGE) requested, we made 
appropriate modifications to the proposal resulting in the 
reorganization and modification of some provisions.
    On March 11, 1996, we adopted an interim final rule entitled, 
``Contractor Conflicts of Interest'', (61 FR 9590), with the 
concurrence of OGE. We determined that an interim final rule was 
appropriate in order to allow interested parties to comment on the rule 
while providing prompt implementation of the rule to satisfy concerns 
relating to the merger of the RTC into the FDIC. We received only one 
comment on the interim final rule and it was non-substantive.
    On May 15, 2002, we published an interim final rule requesting 
public comment. The interim rule represented a fundamental 
reconsideration of our obligations under the RTCCA. We received no 
public comments in response to our May 2002 interim final rule.

II. Final Rule

    We are adopting the May 2002 interim final rule with four minor 
changes. First, in the interim final rule, Sec.  366.12(c) stated that 
contractors are required to disclose waste, fraud, abuse or corruption 
to us. We are adding to Sec.  366.12(c) a telephone number and an email 
address that can be used to make such reports to the FDIC Inspector 
General. Second, in the interim final rule, Sec.  366.12(d)(4) 
prohibited contractors from making impermissible gifts or entertainment 
to an FDIC employee. We are extending this prohibition to gifts made by 
FDIC contractors to other FDIC contractors, as well as FDIC employees. 
This is because there can be occasions in which FDIC

[[Page 69991]]

contractors may make decisions on behalf of the FDIC. Third, in the 
interim final rule, Sec.  366.14(f) established retention requirements 
for information that FDIC contractors submit to the FDIC pursuant to 
this rule. The interim final rule broadly described the information 
that must be retained as any information that the contractor relies 
upon regarding their compliance with part 366. The final rule clarifies 
that information the contractor relies upon includes information that 
they prepare. Finally, because the May 2002 interim final rule was 
unclear as to which event triggers the three year retention period, we 
are adding the phrase ``which ever occurs last'' at the end of the 
sentence for further clarification. As a result, Sec.  366.12(f) will 
require contractors to retain any information they prepare or rely upon 
regarding the provisions of part 366 for a period of three years 
following termination or expiration and final payment of the related 
contract for services whichever occurs last.

III. Matters of Regulatory Procedure

A. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the FDIC certifies that the final rule will not 
have a significant economic impact on a substantial number of small 
entities. This rule, which finalizes the May 2002 interim final rule, 
imposes no new compliance burdens on small entities within the meaning 
of the Regulatory Flexibility Act.
    Our May 2002 interim final rule noted that we were reviewing this 
rule pursuant to our responsibilities under section 610 of the 
Regulatory Flexibility Act and requested public comment about our 
review. A section 610 review requires us to consider how we could 
minimize the economic impact of the rule on small businesses while 
remaining consistent with the objectives of the statute that requires 
the rule. Our May 2002 interim rulemaking resulted from a careful 
consideration of how we could minimize the burden of the 1996 rule. 
Based on our review under section 610, we conclude that the May 2002 
rule changes should successfully reduce burden on small businesses with 
whom we contract and that no further changes are necessary now.

B. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.), we may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid Office of Management and Budget (OMB) control number. We 
submitted two collections of information to OMB for review when we 
published the May 2002 interim final rule.
    One collection is titled ``Acquisition Services Information 
Requirements,'' and includes forms that we use to ensure compliance 
with our contractor integrity and fitness regulation and to make 
contracting decisions for contractors other than legal service 
providers. The May 2002 rule changed the definitions of some of the 
terms used on OMB approved contracting forms. Each of the changes 
reduced estimated burden on our contractors. OMB approved our changes 
to the information collection under control number 3064-0072, which 
will expire June 30, 2005.
    The second collection is titled, ``Forms Relating to FDIC Outside 
Counsel Services'' and includes forms we use to ensure compliance with 
our contractor integrity and fitness regulation, to make contracting 
decisions, and to control payments to law firms and legal support 
service providers. The May 2002 rulemaking affected the definition of 
terms on one of the 13 forms in that collection and reduced the 
estimated burden in completing the form. OMB approved our changes to 
the information collection under control number 3064-0122, which will 
expire June 30, 2005.

C. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    We have determined that this rule will not affect family well-being 
within the meaning of section 654 of the Treasury and Government 
Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

D. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) provides generally for agencies to report 
rules to Congress for review. The reporting requirement is triggered 
when the FDIC issues a final rule as defined by the Administrative 
Procedure Act (APA) at 5 U.S.C. 551. Because the FDIC is issuing a 
final rule as defined by the APA, the FDIC will file the reports 
required by the SBREFA. The Office of Management and Budget has 
determined that this final rule does not constitute a ``major rule'' as 
defined by the SBREFA.

List of Subjects in 12 CFR Part 366

    Contractor conflicts of interest, Government contracts, Reporting 
and recordkeeping requirement.

    For the reasons set forth in the preamble, we hereby revise part 
366 of chapter III of title 12 of the Code of Federal Regulations to 
read as follows:

PART 366--MINIMUM STANDARDS OF INTEGRITY AND FITNESS FOR AN FDIC 
CONTRACTOR

Sec.
366.0 Definitions.
366.1 What is the purpose of this part?
366.2 What is the scope of this part?
366.3 Who cannot perform contractual services for the FDIC?
366.4 When is there a pattern or practice of defalcation?
366.5 What causes a substantial loss to a federal deposit insurance 
fund?
366.6 How is my ownership or control determined?
366.7 Will the FDIC waive the prohibitions under Sec.  366.3?
366.8 Who can grant a waiver of a prohibition or conflict of 
interest?
366.9 What other requirements could prevent me from performing 
contractual services for the FDIC?
366.10 When would I have a conflict of interest?
366.11 Will the FDIC waive a conflict of interest?
366.12 What are the FDIC's minimum standards of ethical 
responsibility?
366.13 What is my obligation regarding confidential information?
366.14 What information must I provide the FDIC?
366.15 What advice or determinations will the FDIC provide me on the 
applicability of this part?
366.16 When may I seek a reconsideration or review of an FDIC 
determination?
366.17 What are the possible consequences for violating this part?

    Authority: Section 9 (Tenth) of the Federal Deposit Insurance 
Act (FDI Act), 12 U.S.C. 1819 (Tenth); sections 12(f)(3) and (4) of 
the FDI Act, 12 U.S.C. 1822(f)(3) and (4); and section 19 of Pub. L. 
103-204, 107 Stat. 2369.


Sec.  366.0  Definitions.

    As used in this part:
    (a) The word person refers to an individual, corporation, 
partnership, or other entity with a legally independent existence.
    (b) The terms we, our, and us refer to the Federal Deposit 
Insurance Corporation (FDIC), except when acting as conservator or 
operator of a bridge bank.
    (c) The terms I, me, my, mine, you, and yourself refer to a person 
who submits an offer to perform or performs, directly or indirectly, 
contractual services or functions on our behalf.
    (d) The phrase insured depository institution refers to any bank or 
savings

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association whose deposits are insured by the FDIC.


Sec.  366.1  What is the purpose of this part?

    This part establishes the minimum standards of integrity and 
fitness that contractors, subcontractors, and employees of contractors 
and subcontractors must meet if they perform any service or function on 
our behalf. This part includes regulations governing conflicts of 
interest, ethical responsibility, and use of confidential information 
in accordance with section 12(f)(3) of the FDI Act, 12 U.S.C. 
1822(f)(3), and the prohibitions and the requirements for submission of 
information in accordance with section 12(f)(4) of the FDI Act, 12 
U.S.C. 1822(f)(4).


Sec.  366.2  What is the scope of this part?

    (a) This part applies to a person who submits an offer to perform 
or performs, directly or indirectly, a contractual service or function 
on our behalf.
    (b) This part does not apply to:
    (1) An FDIC employee for the purposes of title 18, United States 
Code; or
    (2) The FDIC when we operate an insured depository institution such 
as a bridge bank or conservatorship.


Sec.  366.3  Who cannot perform contractual services for the FDIC?

    We will not enter into a contract with you to perform a service or 
function on our behalf, if you or any person that owns or controls you, 
or any entity you own or control:
    (a) Has a felony conviction;
    (b) Was removed from or is prohibited from participating in the 
affairs of an insured depository institution as a result of a federal 
banking agency final enforcement action;
    (c) Has a pattern or practice of defalcation; or
    (d) Is responsible for a substantial loss to a federal deposit 
insurance fund.


Sec.  366.4  When is there a pattern or practice of defalcation?

    (a) You have a pattern or practice of defalcation under Sec.  
366.3(c) when you, any person that owns or controls you, or any entity 
you own or control has a legal responsibility for the payment on at 
least two obligations that are:
    (1) To one or more insured depository institutions;
    (2) More than 90 days delinquent in the payment of principal, 
interest, or a combination thereof; and
    (3) More than $50,000 each.
    (b) The following are examples of when you have or do not have a 
pattern or practice of defalcation. These examples are not inclusive.
    (1) You have five loans at insured depository institutions. Three 
of them are 90 days past due. Two of the three loans have outstanding 
balances of more than $50,000 each. You have a pattern or practice of 
defalcation.
    (2) You have five loans at insured depository institutions. Two of 
them are 90 days past due. One of the two is with ABC Bank for 
$170,000. The other one is with XYZ bank for $60,000. You have a 
pattern or practice of defalcation.
    (3) You have five loans at insured depository institutions. Three 
of them are 90 days past due. One of the three has an outstanding 
balance of more than $50,000. The other two have outstanding balances 
of less than $50,000. You do not have a pattern or practice of 
defalcation.
    (4) You have five loans at insured depository institutions. Three 
of them have outstanding balances of more than $50,000. Two of those 
three were 90 days past due but are now current. You do not have a 
pattern or practice of defalcation.


Sec.  366.5  What causes a substantial loss to a federal deposit 
insurance fund?

    You cause a substantial loss to a federal deposit insurance fund 
under Sec.  366.3(d) when you, or any person that owns or controls you, 
or any entity you own or control has:
    (a) An obligation to us that is delinquent for 90 days or more and 
on which there is an outstanding balance of principal, interest, or a 
combination thereof of more than $50,000;
    (b) An unpaid final judgment in our favor that is in excess of 
$50,000, regardless of whether it becomes discharged in whole or in 
part in a bankruptcy proceeding;
    (c) A deficiency balance following foreclosure of collateral on an 
obligation owed to us that is in excess of $50,000, regardless of 
whether it becomes discharged in whole or in part in a bankruptcy 
proceeding; or
    (d) A loss to us that is in excess of $50,000 that we report on IRS 
Form 1099-C, Information Reporting for Discharge of Indebtedness.


Sec.  366.6  How is my ownership or control determined?

    (a) Your ownership or control is determined on a case-by-case 
basis. Your ownership or control depends on the specific facts of your 
situation and the particular industry and legal entity involved. You 
must provide documentation to us to use in determining your ownership 
or control.
    (b) The interest of a spouse or other family member in the same 
organization is imputed to you in determining your ownership or 
control.
    (c) The following are examples of when your ownership or control 
may or may not exist. These examples are not inclusive.
    (1) You have control if you are the president or chief executive 
officer of an organization.
    (2) You have ownership or control if you are a partner in a small 
law firm. You might not have ownership or control if you are a partner 
in a large national law firm.
    (3) You have control if you are a general partner of a limited 
partnership. You have ownership or control if you have a limited 
partnership interest of 25 percent or more.
    (4) You have ownership or control if you have the:
    (i) Power to vote, directly or indirectly, 25% or more interest of 
any class of voting stock of a company;
    (ii) Ability to direct in any manner the election of a majority of 
a company's directors or trustees; or
    (iii) Ability to exercise a controlling influence over the 
company's management and policies.


Sec.  366.7  Will the FDIC waive the prohibitions under Sec.  366.3?

    We may waive the prohibitions for entities other than individuals 
for good cause shown at our discretion when our need to contract for 
your services outweighs all relevant factors. The statute does not 
allow us to waive the prohibitions for individuals.


Sec.  366.8  Who can grant a waiver of a prohibition or conflict of 
interest?

    The FDIC's Board of Directors delegates to the Chairman, or his 
designee, authority to issue waivers and implement procedures for part 
366.


Sec.  366.9  What other requirements could prevent me from performing 
contractual services for the FDIC?

    You must avoid a conflict of interest, be ethically responsible, 
and maintain confidential information as described in Sec. Sec.  366.10 
through 366.13. You must also provide us with the information we 
require in Sec.  366.14. Failure to meet these requirements may prevent 
you from contracting with us.


Sec.  366.10  When would I have a conflict of interest?

    (a) You have a conflict of interest when you, any person that owns 
or controls you, or any entity you own or control:
    (1) Has a personal, business, or financial interest or relationship 
that relates to the services you perform under the contract;
    (2) Is a party to litigation against us, or represents a party that 
is;

[[Page 69993]]

    (3) Submits an offer to acquire an asset from us for which services 
were performed during the past three years, unless the contract allows 
for the acquisition; or
    (4) Engages in an activity that would cause us to question the 
integrity of the service you provided, are providing or offer to 
provide us, or impairs your independence.
    (b) The following are examples of a conflict of interest. These 
examples are not inclusive.
    (1) You submit an offer to perform property management services for 
us and you own or manage a competing property.
    (2) You audit a business under a contract with us and you or a 
partner in your firm has an ownership interest in that business.
    (3) You perform loan services on a pool of loans we are selling, 
and you submit a bid to purchase one or more of the loans in the pool.
    (4) You audit your own work or provide nonaudit services that are 
significant or material to the subject matter of the audit.


Sec.  366.11  Will the FDIC waive a conflict of interest?

    (a) We may waive a conflict of interest for good cause shown at our 
discretion when our need to contract for your services outweighs all 
relevant factors.
    (b) The following are examples of when we may grant you a waiver 
for a conflict of interest. These examples are not inclusive.
    (1) We may grant a waiver to an outside counsel who has a 
representational conflict. We will weigh all relevant facts and 
circumstances in making our determination.
    (2) We may grant a waiver to allow a contractor to acquire an asset 
from us who is providing or has provided services on that asset. We 
will consider whether granting the waiver will adversely affect the 
fairness of the sale, the type of services provided, and other facts 
and circumstances relevant to the sale in making our determination.


Sec.  366.12  What are the FDIC's minimum standards of ethical 
responsibility?

    (a) You and any person who performs services for us must not 
provide preferential treatment to any person in your dealings with the 
public on our behalf.
    (b) You must ensure that any person you employ to perform services 
for us is informed about their responsibilities under this part.
    (c) You must disclose to us waste, fraud, abuse or corruption. 
Contact the Inspector General at 1-800-964-FDIC or [email protected].
    (d) You and any person who performs contract services to us must 
not:
    (1) Accept or solicit for yourself or others any favor, gift, or 
other item of monetary value from any person who you reasonably believe 
is seeking an official action from you on our behalf, or has an 
interest that the performance or nonperformance of your duties to us 
may substantially affect;
    (2) Use or allow the use of our property, except as specified in 
the contract;
    (3) Make an unauthorized promise or commitment on our behalf; or
    (4) Provide impermissible gifts or entertainment to an FDIC 
employee or other person providing services to us.
    (e) The following are examples of when you are engaging in 
unethical behavior. These examples are not inclusive.
    (1) Using government resources, including our Internet connection, 
to conduct any business that is unrelated to the performance of your 
contract with us.
    (2) Submitting false invoices or claims, or making misleading or 
false statements.
    (3) Committing us to forgive or restructure a debt or portion of a 
debt, unless we provide you with written authority to do so.


Sec.  366.13  What is my obligation regarding confidential information?

    (a) Neither you nor any person who performs services on your behalf 
may use or disclose information obtained from us or a third party in 
connection with an FDIC contract, unless:
    (1) The contract allows or we authorize the use or disclosure;
    (2) The information is generally available to the general public; 
or
    (3) We make the information available to the general public.
    (b) The following are examples of when your use of confidential 
information is inappropriate. These examples are not inclusive.
    (1) Disclosing information about an asset, such as internal asset 
valuations, appraisals or environmental reports, except as part of 
authorized due diligence materials, to a prospective asset purchaser.
    (2) Disclosing a borrower's or guarantor's personal or financial 
information, such as a financial statement to an unauthorized party.


Sec.  366.14  What information must I provide the FDIC?

    You must:
    (a) Certify in writing that you can perform services for us under 
Sec.  366.3 and have no conflict of interest under Sec.  366.10(a).
    (b) Submit a list and description of any instance during the 
preceding five years in which you, any person that owns or controls 
you, or any entity you own or control, defaulted on a material 
obligation to an insured depository institution. A default on a 
material obligation occurs when a loan or advance with an outstanding 
balance of more than $50,000 is or was delinquent for 90 days or more.
    (c) Notify us within 10 business days after you become aware that 
you, or any person you employ to perform services for us, are not in 
compliance with this part. Your notice must include a detailed 
description of the facts of the situation and how you intend to resolve 
the matter.
    (d) Agree in writing that you will employ only persons who meet the 
requirements of this part to perform services on our behalf.
    (e) Comply with any request from us for information.
    (f) Retain any information you prepare or rely upon regarding the 
provisions of this part for a period of three years following 
termination or expiration and final payment of the related contract for 
services whichever occurs last.


Sec.  366.15  What advice or determinations will the FDIC provide me on 
the applicability of this part?

    (a) We are available to you for consultation on those 
determinations you are responsible for making under this part, 
including those with respect to any person you employ or engage to 
perform services for us.
    (b) We will determine if this part prohibits you from performing 
services for us prior to contract award, after contract award, and 
during the performance of a contract.
    (c) We may determine what corrective action you must take.
    (d) We may grant you a waiver for good cause shown where provided 
for under this part.


Sec.  366.16  When may I seek a reconsideration or review of an FDIC 
determination?

    (a) You may seek reconsideration or review of our initial 
determination by sending a written request to the individual who issued 
you the initial decision.
    (b) You must provide new information or explain a change in 
circumstances for our reconsideration of an initial decision. The 
individual who issued you the initial decision may either make a new 
determination or refer your request to a higher authority for review.
    (c) You must provide an explanation of how you perceive that we 
misapplied

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this part that sets forth the legal or factual errors for our review of 
an initial decision.


Sec.  366.17  What are the possible consequences for violating this 
part?

    Depending on the circumstances, violations of this part may result 
in rescission or termination of a contract, as well as administrative, 
civil, or criminal sanctions.

    Dated in Washington, DC, this 12th day of November, 2002.
    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Valerie J. Best,
 Assistant Executive Secretary.
[FR Doc. 02-29407 Filed 11-19-02; 8:45 am]
BILLING CODE 6714-01-P