[Federal Register Volume 79, Number 139 (Monday, July 21, 2014)]
[Rules and Regulations]
[Pages 42181-42183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16974]


=======================================================================
-----------------------------------------------------------------------

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 336 and 390

RIN 3064-AD98


Transferred OTS Regulations and FDIC Regulations Regarding Post-
Employment Activities of Senior Examiners

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Deposit Insurance Corporation (``FDIC'') is 
adopting a final rule (``Final Rule'') to rescind and remove 
regulations transferred to the FDIC following dissolution of the former 
Office of Thrift Supervision (``OTS'') in connection with the 
implementation of applicable provisions of Title III of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (``Dodd-Frank Act''). 
Section 316(b)(3) of the Dodd-Frank Act provided that the former OTS 
rules that were transferred to the FDIC would be enforceable by or 
against the FDIC until they were modified, terminated, set aside, or 
superseded in accordance with applicable law by the FDIC, by any court 
of competent jurisdiction, or by operation of law.

DATES: The Final Rule is effective on August 20, 2014.

FOR FURTHER INFORMATION CONTACT: Robert J. Fagan, Ethics Program 
Manager, Legal Division (703) 562-2704 or [email protected]; Michelle 
Borzillo, Senior Counsel, Legal Division (703) 562-6083 or 
[email protected]; or Randy Thomas, Counsel, Legal Division (703) 562-
6454 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Beginning July 21, 2011, the transfer date established by section 
311 of the Dodd-Frank Act, 12 U.S.C. 5411, the powers, duties, and 
functions of the former OTS were divided among the FDIC as to State 
savings associations, the Office of the Comptroller of the Currency 
(``OCC'') as to Federal savings associations, and the Board of 
Governors of the Federal Reserve System as to savings and loan holding 
companies.\1\ Section 316(b) of the Dodd-Frank Act, 12 U.S.C. 5414(b), 
provides the manner of treatment for all orders, resolutions, 
determinations, regulations, and advisory materials that had been 
issued, made, prescribed, or allowed to become effective by the OTS. 
The section provides that if such regulatory issuances were in effect 
on the day before the transfer date, they continue in effect and are 
enforceable by or against the appropriate successor agency until they 
are modified, terminated, set aside, or superseded in accordance with 
applicable law by such successor agency, by any court of competent 
jurisdiction, or by operation of law.
---------------------------------------------------------------------------

    \1\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Pub. L. 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------

    The Dodd-Frank Act directed the FDIC and OCC to consult with one 
another and to publish a list of continued OTS regulations to be

[[Page 42182]]

enforced by each respective agency that would continue to remain in 
effect until the appropriate successor agency modified or removed the 
regulations in accordance with the applicable laws. The list was 
published by the FDIC and OCC as a Joint Notice in the Federal Register 
on July 6, 2011, and shortly thereafter, the FDIC published its 
transferred OTS regulations as new FDIC regulations in 12 CFR parts 390 
and 391. When it republished the transferred OTS regulations as new 
FDIC regulations, the FDIC specifically noted that its staff would 
evaluate the transferred OTS rules and might later recommend 
incorporating the transferred OTS regulations into other FDIC rules, 
amending them, or rescinding them, as appropriate.
    Further, section 312(c) of the Dodd-Frank Act amended the 
definition of ``appropriate Federal banking agency'' contained in 
section 3(q) of the FDI Act, to add State savings associations to the 
list of entities for which the FDIC is designated the ``appropriate 
Federal banking agency.'' As a result, when the FDIC acts as the 
designated ``appropriate Federal banking agency'' (or under similar 
terminology) for State savings associations, as it does today, it has 
the authority to issue, modify, and rescind regulations involving such 
associations as well as for State nonmember banks and insured branches 
of foreign banks.\2\
---------------------------------------------------------------------------

    \2\ 12 U.S.C. 5412(b)-(c).
---------------------------------------------------------------------------

II. Proposed Rule

A. Removal of Part 390, Subpart A (Former OTS 12 CFR Part 507)

    On September 4, 2013, the FDIC published a notice of proposed 
rulemaking (``NPR'' or ``Proposed Rule'') regarding the removal of part 
390, subpart A (formerly OTS part 507), which governs post-employment 
activities of senior examiners.\3\ The former OTS rule was transferred 
to the FDIC with only nominal changes. The NPR proposed removing part 
390, subpart A from the CFR in an effort to streamline FDIC's rules and 
eliminate unnecessary regulations. As discussed in the Proposed Rule, 
the FDIC carefully reviewed the transferred rule, part 390, subpart A, 
and compared it with part 336, an FDIC regulation that existed before 
the transfer of part 390, subpart A and that continues to remain in 
effect today. Like the transferred rule, part 336 governs post-
employment activities of senior examiners.\4\ Although the two rules 
were substantively the same, the FDIC noted that part 336 was more 
appropriate because it focuses on the service of senior examiners of 
all insured depository institutions, while the part 390, subpart A 
rules apply only to senior examiners of savings associations and their 
holding companies.\5\
---------------------------------------------------------------------------

    \3\ 78 FR 54401, 54403 (Sept. 4, 2013).
    \4\ Id. at 54402.
    \5\ Id.
---------------------------------------------------------------------------

B. Amendments to Part 336

    In addition, the Proposed Rule proposed to revise 12 CFR part 336, 
subpart B by deleting a reference to the ``Office of Thrift 
Supervision'' in the definition of ``Federal banking agency'' described 
in part 336.3(e) and adding the words ``predecessors or'' in front of 
the word ``successors''. As stated in the Proposed Rule, the FDIC 
believes this revision will help avoid any public confusion by deleting 
the reference to the former Office of Thrift Supervision while 
retaining the indirect reference to that former agency by adding a 
reference to ``predecessors'' to the definition of ``Federal Banking 
agency''. Further, by including predecessor agencies of the FDIC as 
Federal banking agencies for purposes of this part, the proposed rule 
would restrict a potential employee who had been associated with a 
State savings association from future FDIC employment if the potential 
employee had been subject to a final enforcement action by the former 
OTS. See 12 CFR 336.4(a)(2) and 336.5(a)(2).\6\
---------------------------------------------------------------------------

    \6\ 78 FR at 54406.
---------------------------------------------------------------------------

III. Comments

    The FDIC issued the NPR with a 60-day comment period, which closed 
on November 4, 2013. The FDIC received no comments on its Proposed 
Rule, and consequently the Final Rule is adopted as proposed without 
any changes.

IV. Explanation of the Final Rule

    As discussed in the NPR, part 390, subpart A is substantively 
similar to part 336, and the designation of part 336 as the single 
authority for the post-employment activities of FDIC senior examiners 
will serve to streamline the FDIC's rules and eliminate unnecessary 
regulations. To that effect, the Final Rule removes and rescinds 12 CFR 
part 390, subpart A in its entirety.
    Consistent with the Proposed Rule, the Final Rule also amends 
section 336.3(e) to revise 12 CFR part 336, subpart B by deleting a 
reference to the ``Office of Thrift Supervision'' in the definition of 
``Federal banking agency'' described in part 336.3(e) and adding the 
words ``predecessors or'' in front of the word ``successors''.

V. Administrative Law Matters

A. Paperwork Reduction Act

    Pursuant to the Proposed Rule, the FDIC will rescind and remove 
from its regulations 12 CFR part 390, subpart A. This rule was 
transferred with only nominal changes to the FDIC from the OTS when the 
OTS was abolished by Title III of the Dodd-Frank Act. Part 390, subpart 
A is redundant and largely duplicative of the FDIC's rule at part 336 
regarding the one-year post-employment restrictions for senior 
examiners. Removing part 390, subpart A and revising the definition of 
Federal banking agency in part 336.3(e) will not involve any new 
collections of information pursuant to the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). Consequently, no information collection has been 
submitted to the Office of Management and Budget for review.

B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq. (RFA), 
requires that each federal agency either (1) certify that a proposed 
rule would not, if adopted in final form, have a significant economic 
impact on a substantial number of small entities, or (2) prepare an 
initial regulatory flexibility analysis of the rule and publish the 
analysis for comment. Twelve CFR part 336, subpart C was issued as part 
of an interagency rulemaking designed to implement section 10(k) of the 
FDI Act, 12 U.S.C. 1820(k). This rule has a limited scope: It imposes 
post-employment restrictions on certain senior examiners employed by 
the FDIC and does not impose any obligations or restrictions on banking 
organizations, including small banking organizations. On this basis, 
the FDIC certifies that this rule revision will not have a significant 
impact on a substantial number of small entities, within the meaning of 
those terms as used in the RFA.

C. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act, 12 U.S.C. 4809, requires 
each Federal banking agency to use plain language in all of its 
proposed and final rules published after January 1, 2000. In the NPR, 
the FDIC invited comments on whether the Proposed Rule was clearly 
stated and effectively organized, and how the FDIC might make it easier 
to understand. Although the FDIC did not receive any comments, the FDIC 
sought to present the Final Rule in a simple and straightforward 
manner.

List of Subjects

12 CFR Part 336

    Conflict of interest.

[[Page 42183]]

 12 CFR Part 390

    Banks and banking, Conflicts of interest, Government employees, 
Savings associations.

Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of 
the Federal Deposit Insurance Corporation amends 12 CFR parts 336 and 
390 as set forth below:

PART 336--FDIC EMPLOYEES

Subpart B--[Amended]

0
1. The authority citation for subpart B continues to read as follows:

    Authority: 12 U.S.C. 1819(Tenth), 1822(f).


0
2. In Sec.  336.3, revise paragraph (e) to read as follows:


Sec.  336.3  Definitions.

* * * * *
    (e) Federal banking agency means the Office of the Comptroller of 
the Currency, the Board of Governors of the Federal Reserve System, or 
the Federal Deposit Insurance Corporation, or their predecessors or 
successors.
* * * * *

PART 390--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
3. The authority citation for part 390 is revised to read as follows:

    Authority: 12 U.S.C. 1819.

    Subpart B also issued under 12 U.S.C. 1818.
    Subpart C also issued under 5 U.S.C. 504; 554-557; 12 U.S.C. 
1464; 1467; 1468; 1817; 1818; 1820; 1829; 3349, 4717; 15 U.S.C. 78 
l; 78o-5; 78u-2; 28 U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 
4012a.
    Subpart D also issued under 12 U.S.C. 1817; 1818; 1820; 15 
U.S.C. 78 l.
    Subpart E also issued under 12 U.S.C. 1813; 1831m; 15 U.S.C. 78.
    Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901 et 
seq.
    Subpart G also issued under 12 U.S.C. 2810 et seq., 2901 et 
seq.; 15 U.S.C. 1691; 42 U.S.C. 1981, 1982, 3601-3619.
    Subpart I also issued under 12 U.S.C. 1831x.
    Subpart J also issued under 12 U.S.C. 1831p-1.
    Subpart K also issued under 12 U.S.C. 1817; 1818; 15 U.S.C. 78c; 
78 l.
    Subpart L also issued under 12 U.S.C. 1831p-1.
    Subpart M also issued under 12 U.S.C. 1818.
    Subpart N also issued under 12 U.S.C. 1821.
    Subpart O also issued under 12 U.S.C. 1828.
    Subpart P also issued under 12 U.S.C. 1470; 1831e; 1831n; 1831p-
1; 3339.
    Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
    Subpart R also issued under 12 U.S.C. 1463; 1464; 1831m; 1831n; 
1831p-1.
    Subpart S also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 
1468a; 1817; 1820; 1828; 1831e; 1831o; 1831p-1; 1881-1884; 3207; 
3339; 15 U.S.C. 78b; 78 l; 78m; 78n; 78p; 78q; 78w; 31 U.S.C. 5318; 
42 U.S.C. 4106.
    Subpart T also issued under 12 U.S.C. 1462a; 1463; 1464; 15 
U.S.C. 78c; 78 l; 78m; 78n; 78w.
    Subpart U also issued under 12 U.S.C. 1462a; 1463; 1464; 15 
U.S.C. 78c; 78 l; 78m; 78n; 78p; 78w; 78d-1; 7241; 7242; 7243; 7244; 
7261; 7264; 7265.
    Subpart V also issued under 12 U.S.C. 3201-3208.
    Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 
U.S.C. 78c; 78 l; 78m; 78n; 78p; 78w.
    Subpart X also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 
1828; 3331 et seq.
    Subpart Y also issued under 12 U.S.C. 1831o.
    Subpart Z also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 
1828 (note).
    Remove from the authority citation for part 390, the sentence 
``Subpart A also issued under 12 U.S.C. 1820.''

Subpart A--[Removed and Reserved]

0
3. Remove and reserve subpart A, consisting of Sec. Sec.  390.1 through 
390.5.

    Dated at Washington, DC, this 15th day of July 2014.

    By order of the Board of Directors, Federal Deposit Insurance 
Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2014-16974 Filed 7-18-14; 8:45 am]
BILLING CODE 6714-01-P