[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Rules and Regulations]
[Pages 35963-35966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15342]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 309 and 310

RIN 3064-AD83


Disclosure of Information; Privacy Act Regulations; Notice and 
Amendments

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Interim rule with request for comments.

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SUMMARY: The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Act), abolished the Office of Thrift Supervision (OTS) and 
redistributed, as of July 21, 2011, the statutorily prescribed transfer 
date (Transfer Date), the functions and regulations of the OTS relating 
to savings and loan holding companies, Federal savings associations, 
and State savings associations to the Board of Governors of the Federal 
Reserve System (FRB), the Office of the Comptroller of the Currency 
(OCC), and the FDIC, respectively. The Board of Directors has 
determined that, effective on the Transfer Date, the OTS Freedom of 
Information Act (FOIA) and Privacy Act (PA) regulations will not be 
enforced by the FDIC and that, instead, all FOIA and PA issues will be 
addressed under the FDIC's regulations involving disclosure of 
information and the PA, as amended. In taking this action the FDIC's 
goal is to avoid potential confusion and uncertainty that may arise 
regarding information concerning State savings associations after the 
Transfer Date.

DATES: The effective date of the Interim Rule is July 21, 2011. Written 
comments must be received by the FDIC no later than August 22, 2011.

ADDRESSES: You may submit comments by any of the following methods:
    Agency Web Site: http:[sol][sol]www.fdic.gov/regulations/laws/
federal. Follow instructions for submitting comments on the Agency Web 
Site.
    E-mail: [email protected]. Include RIN 3064-AD83 in the subject 
line of the message.
    Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, 
Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
    Hand Delivery/Courier: Guard station at the rear of the 550 17th 
Street Building (located on F Street) on business days between 7 a.m. 
and 5 p.m. (EST).
    Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov. 
Follow the instructions for submitting comments.
    Public Inspection: All comments received will be posted without 
change to http:[sol][sol]www.fdic.gov/regulations/laws/federal 
including any personal information provided. Paper copies of public 
comments may be ordered from the Public Information Center by telephone 
at 1-(877) 275-3342 or 1-(703) 562-2200.

FOR FURTHER INFORMATION CONTACT: A. Ann Johnson, Counsel, Legal 
Division, (202) 898-3573 or [email protected]; Rodney D. Ray, Counsel, 
Legal Division, (202) 898-3556 or [email protected]; or Martin P. Thompson, 
Senior Review Examiner, Division of Risk Management Supervision, (202) 
898-6767 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Act, signed into law on July 21, 2010, provides for a 
substantial reorganization of the regulation of savings associations 
and their holding companies. Beginning July 21, 2011, the Transfer Date 
established in Dodd-Frank, functions formerly performed by the OTS will 
be divided among the FRB, OCC, and FDIC. Section 316(b) of the Act 
provides that all orders, resolutions, determinations, and regulations 
issued, made, prescribed, or allowed to become effective by the OTS 
that were in effect on the day before the Transfer Date continue in 
effect and are enforceable by the appropriate successor Federal banking 
agency until modified, terminated, set aside, or superseded in 
accordance with applicable law by such successor agency, by any court 
of competent jurisdiction, or by operation of law. Section 323(b) also 
provides for the transfer on the Transfer Date of OTS property, 
including books, accounts, records, reports, files, memoranda, paper, 
reports of examination, work papers, and correspondence relating to 
such reports, to the respective agencies, that were used by the OTS on 
the day before the Transfer Date to support OTS functions.
    Section 316(c) of the Act further provides for the identification 
of OTS regulations relating to the supervision of State savings 
associations to be transferred to the FDIC. The FDIC does not intend to 
continue or enforce existing OTS regulations regarding the Freedom of 
Information Act or Privacy Act.

II. The Interim Rule

    The OTS regulations governing Freedom of Information Act and 
Privacy Act issues are contained in 12 CFR parts 503 and 505. Because 
the OTS, unlike the FDIC, is a component part of the Department of the 
Treasury (Treasury), the OTS rules supplement Treasury's

[[Page 35964]]

FOIA and PA regulations. 12 CFR parts 309 and 310 of the FDIC's 
regulations also implement the relevant provisions of the FOIA and PA, 
but do not rely on Treasury's regulations. Both the OTS and FDIC rules 
describe the agency processes and procedures regarding FOIA and PA 
issues.
    The Act provides for a 90 day ``wind down'' period for the OTS 
beginning on the Transfer date and it will cease operating as a Federal 
banking agency on July 21, 2011. Because the OTS' functions and 
property relating to State savings associations will transfer to the 
FDIC on the Transfer Date, the FDIC believes that the existence of two 
sets of regulations addressing the same subject areas would lead to 
confusion concerning which rules and procedures govern FOIA and PA 
issues applicable to State savings associations. Therefore, the FDIC is 
providing the public with notice that the FDIC intends to apply the 
FDIC's existing FOIA and PA regulations to all records or other matters 
transferred from the OTS to the FDIC, as well as FDIC matters, as of 
the Transfer Date. In addition, the FDIC is making certain technical 
amendments to the FDIC's existing regulations to correct addresses and 
other matters that have changed since the FDIC's rules involving 
disclosure of information and the PA were last revised. Finally, the 
FDIC is substituting the Bureau of Consumer Financial Protection for 
the OTS in section 309.06(b)(3) as a Federal financial institution 
supervisory agency, for purposes of section 309.6, to whom exempt 
records may be disclosed.

III. Section-By-Section Description of the Interim Rule

    The Interim Rule revises parts 309 and 310 of the FDIC's 
regulations as follows:

Part 309--Disclosure of Information

    Section 309.1 Purpose and scope. Section 309.1 is revised to 
indicate that the FDIC's disclosure regulations apply to the disclosure 
of information transferred to the FDIC from the OTS pursuant to 
sections 312 and 323 of the Act.
    Section 309.4 Publicly available records. Section 309.4(b) is 
revised to change the address of the FDIC's Public Information Center.
    Section 309.5 Procedures for requesting records. Section 
309.5(b)(ii) is revised to change the facsimile number for the FDIC 
FOIA/PA Group. Section 309.5(b)(iii), (f)(4)(ii), and (h)(1) are 
revised to make changes to the FDIC FOIA/PA Group address.
    Section 309.6 Disclosure of exempt records. Section 309.6(b)(3) is 
revised to substitute the Bureau of Consumer Financial Protection and 
the Financial Stability Oversight Council for the OTS and section 
309.6(b)(5) to replace the reference to ``bank'' with ``depository 
institution'' and make other non-substantive conforming changes.

Part 310--Privacy Act Regulations

    Section 310.1 Purpose and scope. Section 310.1 is revised to 
indicate that the FDIC's disclosure regulations apply to the disclosure 
of information transferred to the FDIC from the OTS pursuant to 
sections 312 and 323 of the Act.
    Section 310.3 Procedures for requests pertaining to individual 
records in a system of records. Section 310.3(b) is revised to make 
changes to the FDIC FOIA/PA Group address.
    Section 310.4 Times, places, and requirements for identification of 
individuals making requests. Section 310.4(a) is revised to make 
changes to the FDIC FOIA/PA Group address.
    Section 310.7 Request for amendment of record. Section 310.7 is 
revised to make changes to the FDIC FOIA/PA Group address.
    Section 310.8 Agency review of request for amendment of record. 
Section 310.8(a) is revised to delete the ``Senior Attorney'' 
references.
    Section 310.9 Appeal of adverse initial agency determination on 
access or amendment. 310.9(a) is revised to make changes to the FDIC 
FOIA/PA Group address.

IV. Effective Date of the Interim Rule

    The Interim Rule will apply to all existing and future FOIA and PA 
issues involving State savings associations as of the Transfer Date. In 
this regard, the FDIC invokes the good cause exception to the 
requirements in the Administrative Procedure Act (``APA'') that, before 
a rulemaking can be finalized, it must first be issued for public 
comment and, once finalized, must have a delayed effective date of 30 
days from the publication date.\1\
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    \1\ 5 U.S.C. 553.
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    The FDIC believes good cause exists for making the Interim Rule 
effective immediately on the Transfer Date. Since the OTS will continue 
to function as a Federal banking agency until the Transfer Date and is 
a component part of the Department of Treasury, its existing rules will 
need to remain in place until the Transfer Date. On the Transfer Date, 
however, the OTS will cease functioning as a Federal banking agency and 
its responsibility for FOIA and PA issues relating to State savings 
associations will transfer to the FDIC. As indicated above, the FDIC 
believes that the existence of essentially duplicate FOIA and PA 
regulations on the Transfer Date creates the possibility of public 
confusion. Therefore, the FDIC is providing this Interim Rule before 
the Transfer Date to provide clarity on this issue to the public and to 
facilitate a smooth transition of covered matters from the OTS to the 
FDIC.
    For these reasons, in accordance with section 553(b)(B) of the 
Administrative Procedure Act (APA), the FDIC has determined that good 
cause exists to waive the general notice and opportunity for pubic 
comment requirements of the APA. Similarly, the FDIC has determined 
that good cause exists to make this Interim Rule effective as of the 
Transfer Date.

V. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., (RFA) 
applies only to rules for which an agency publishes a general notice of 
proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed above, 
consistent with section 553(b)(B) of the APA, the FDIC has determined 
that good cause exists in this case to waive the general notice and 
opportunity for public comment requirements of the APA; therefore, 
pursuant to 5 U.S.C. 601(2), the RFA does not apply.

VI. Small Business Regulatory Enforcement Fairness Act

    The Office of Management and Budget has determined that the Interim 
Rule is not a ``major rule'' within the meaning of the relevant 
sections of the Small Business Regulatory Enforcement Act of l996 
(``SBREFA'') (5 U.S.C. 801 et seq.). As required by SBREFA, the FDIC 
will file the appropriate reports with Congress and the General 
Accounting Office so that the Interim Rule may be reviewed.

List of Subjects in 12 CFR Parts 309 and 310

    Banks, Banking, Freedom of Information, Privacy, Savings 
associations.

    For the Reasons stated above, the Board of Directors of the Federal 
Deposit Insurance Corporation amends parts 309 and 310 of chapter III 
of title 12 of the Code of Federal Regulations as follows:

PART 309--DISCLOSURE OF INFORMATION

0
1. The authority citation for part 309 continues to read as follows:

    Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and 
``Tenth.''

[[Page 35965]]


0
2. Revise Sec.  309.1 to read as follows:


Sec.  309.1  Purpose and scope.

    This part sets forth the basic policies of the Federal Deposit 
Insurance Corporation regarding information it maintains and the 
procedures for obtaining access to such information, including 
disclosure of information transferred to Federal Deposit Insurance 
Corporation from the Office of Thrift Supervision pursuant to section 
312 and 323 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act, Public Law 111-203. Section 309.2 sets forth 
definitions applicable to this part 309. Section 309.3 describes the 
types of information and documents typically published in the Federal 
Register. Section 309.4 explains how to access public records 
maintained on the Federal Deposit Insurance Corporation's World Wide 
Web page and in the Federal Deposit Insurance Corporation's Public 
Information Center or ``PIC,'' and describes the categories of records 
generally found there. Section 309.5 implements the Freedom of 
Information Act (5 U.S.C. 552). Section 309.6 authorizes the 
discretionary disclosure of exempt records under certain limited 
circumstances. Section 309.7 outlines procedures for serving a subpoena 
or other legal process to obtain information maintained by the FDIC.

0
3. Revise Sec.  309.4(b) to read as follows:


Sec.  309.4  Publicly available records.

* * * * *
    (b) Public Information Center. The FDIC maintains a Public 
Information Center or ``PIC'' that contains Corporate records that the 
Freedom of Information Act requires be made available for regular 
inspection and copying, as well as any records or information the FDIC, 
in its discretion, has regularly made available to the public. The PIC 
has extensive materials of interest to the public, including many 
Reports, Summaries and Manuals used or published by the Corporation 
that are made available, by appointment, for inspection and copying. 
The PIC is open from 9:00 AM to 4:00 PM, Monday through Friday, 
excepting federal holidays. It is located at 3501 North Fairfax Drive, 
Room E-1005, Arlington, VA 22226. The PIC may be reached during 
business hours by calling 1-(877) 275-3342 or 1-(703) 562-2000.
* * * * *

0
4. In Sec.  309.5 revise paragraphs (b)(1)(ii), (b)(1)(iii), 
(f)(4)(ii), and (h)(1) to read as follows:


Sec.  309.5  Procedures for requesting records.

* * * * *
    (b) * * *
    (1) * * *
    (ii) By facsimile clearly marked Freedom of Information Act Request 
to the FOIA/PA Group: (703) 562-7977; or
    (iii) By sending a letter to: Federal Deposit Insurance 
Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 
20429.
* * * * *
    (f) * * *
    (4) * * *
    (i) * * *
    (ii) The fee schedule will be set forth in the ``Notice of Federal 
Deposit Insurance Corporation Records Fees'' issued in December of each 
year or in such ``Interim Notice of Federal Deposit Insurance 
Corporation Records Fees'' as may be issued. Copies of such notices may 
be obtained at no charge from the Federal Deposit Insurance 
Corporation, FOIA/PA Group, 550 17th Street NW., Washington, DC 20429, 
and are available on the FDIC's World Wide Web page as noted in 
paragraph (f)(4)(i) of this section.
* * * * *
    (h) Appeals. (1) Appeals should be addressed to the Federal Deposit 
Insurance Corporation, Attn: FOIA/PA Group, FDIC, 550 17th Street, NW., 
Washington, DC 20429.
* * * * *

0
5. In Sec.  309.6, revise paragraphs (b)(3) and (b)(5) to read as 
follows:


Sec.  309.6  Disclosure of exempt records.

* * * * *
    (b) * * *
    (3) Disclosure to federal financial institutions supervisory 
agencies and certain other agencies. The Director of the Corporation's 
Division having primary authority over the exempt records, or designee, 
may in his or her discretion and for good cause, disclose to any 
authorized officer or employee of any federal financial institution 
supervisory agency including the Comptroller of the Currency, the Board 
of Governors of the Federal Reserve System, Bureau of Consumer 
Financial Protection, the Financial Stability Oversight Council, the 
Securities and Exchange Commission, the National Credit Union 
Administration, or any other agency included in section 1101(7) of the 
Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) (RFPA), 
any exempt records for a legitimate depository institution supervisory 
or regulatory purpose. The Director, or designee, may in his or her 
discretion and for good cause, disclose exempt records, including 
customer financial records, to certain other federal agencies as 
referenced in section 1113 of the RFPA for the purposes and to the 
extent permitted therein, or to any foreign bank regulatory or 
supervisory authority as provided, and to the extent permitted, by 
section 206 of the Federal Deposit Insurance Corporation Improvement 
Act of 1991 (12 U.S.C. 3109). Finally, the Director, or designee, may 
in his or her discretion and for good cause, disclose reports of 
examination or other confidential supervisory information concerning 
any depository institution or other entity examined by the Corporation 
under authority of Federal law to: Any other Federal or State agency or 
authority with supervisory or regulatory authority over the depository 
institution or other entity; any officer, director, or receiver of such 
depository institution or entity; and any other person that the 
Corporation determines to be appropriate.
* * * * *
    (5) Disclosure to servicers and serviced institutions. The Director 
of the Corporation's Division having primary authority over the exempt 
records, or designee, may disclose copies of any exempt record related 
to a depository institution data center, service corporation, or any 
other data center that provides data processing or related services to 
an insured institution (hereinafter referred to as ``data center'') to:
* * * * *

PART 310--PRIVACY ACT REGULATIONS

0
6. The authority citation for part 310 continues to read as follows:

    Authority: 5 U.S.C. 552a.


0
7. Revise Sec.  301.1 to read as follows:


Sec.  310.1  Purpose and scope.

    The purpose of this part is to establish regulations implementing 
the Privacy Act of 1974, 5 U.S.C. 552a. These regulations delineate the 
procedures that an individual must follow in exercising his or her 
access or amendment rights under the Privacy Act to records maintained 
by the Corporation in systems of records, including information 
transferred to Federal Deposit Insurance Corporation from the Office of 
Thrift Supervision pursuant to sections 312 and 323 of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act, Public Law 111-203.
* * * * *

0
8. Revise Sec.  310.3(b) to read as follows:


Sec.  310.3  Procedures for requests pertaining to individual records 
in a system of records.

* * * * *

[[Page 35966]]

    (b) Requests by individuals for access to records pertaining to 
them and maintained within one of the Corporation's designated systems 
of records should be submitted in writing to the Federal Deposit 
Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., 
Washington, DC 20429. Each such request should contain a reasonable 
description of the records sought, the system or systems in which such 
record may be contained, and any additional identifying information, as 
specified in the Corporation's Federal Register ``Notice of Systems of 
Records'' for that particular system, copies of which are available 
upon request from the FOIA/PA Group.
* * * * *

0
9. Revise Sec.  310.4(a) to read as follows:


Sec.  310.4  Times, places, and requirements for identification of 
individuals making requests.

    (a) Individuals may request access to records pertaining to 
themselves by submitting a written request as provided in Sec.  310.3 
of these regulations, or by appearing in person on weekdays, other than 
official holidays, at the Federal Deposit Insurance Corporation, Attn: 
FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429, between the 
hours of 8:30 a.m. and 5 p.m.
* * * * *

0
10. Revise Sec.  310.7 to read as follows:


Sec.  310.7  Request for amendment of record.

    The Corporation will maintain all records it uses in making any 
determination about any individual with such accuracy, relevance, 
timeliness and completeness as is reasonably necessary to assure 
fairness to the individual in the determination. An individual may 
request that the Corporation amend any portion of a record pertaining 
to that individual which the Corporation maintains in a designated 
system of records. Such a request should be submitted in writing to the 
Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th 
Street, NW., Washington, DC 20429 and should contain the individual's 
reason for requesting the amendment and a description of the record 
(including the name of the appropriate designated system and category 
thereof) sufficient to enable the Corporation to identify the 
particular record or portion thereof with respect to which amendment is 
sought.

0
11. Revise Sec.  310.8(a) to read as follows:


Sec.  310.8  Agency review of request for amendment of record.

    (a) Requests by individuals for the amendment of records will be 
acknowledged by the FOIA/PA Group, and referred to the system manager 
of the system of records in which the record is contained for 
determination, within ten business days following receipt of such 
requests. Promptly thereafter, the FOIA/PA Group will notify the 
individual of the system manager's decision to grant or deny the 
request to amend.
* * * * *

0
12. Revise Sec.  310.9(a) to read as follows:


Sec.  310.9  Appeal of adverse initial agency determination on access 
or amendment.

    (a) A system manager's denial of an individual's request for access 
to or amendment of a record pertaining to him/her may be appealed in 
writing to the Corporation's General Counsel (or designee) within 30 
business days following receipt of notification of the denial. Such an 
appeal should be addressed to the Federal Deposit Insurance 
Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 
20429, and contain all the information specified for requests for 
access in Sec.  310.3 or for initial requests to amend in Sec.  310.7, 
as well as any other additional information the individual deems 
relevant for the consideration by the General Counsel (or designee) of 
the appeal.
* * * * *

    By order of the Board of Directors.

    Dated at Washington, DC, this 14th day of June 2011.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2011-15342 Filed 6-20-11; 8:45 am]
BILLING CODE 6714-01-P