[Federal Register Volume 80, Number 20 (Friday, January 30, 2015)]
[Rules and Regulations]
[Pages 5015-5017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01326]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 390

RIN 3064-AE17


Transferred OTS Regulations Regarding Possession by Conservators 
and Receivers for Federal and State Savings Associations

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is rescinding 
and removing the former OTS regulation entitled ``Possession by 
Conservators and Receivers for Federal and State Savings Associations'' 
from the Code of Federal Regulations because it is not necessary. This 
rule was included in the regulations that were transferred to the FDIC 
from the Office of Thrift Supervision (OTS) on July 21, 2011, in 
connection with the implementation of Title III of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act (Dodd-Frank Act).

DATES: Effective March 2, 2015.

FOR FURTHER INFORMATION CONTACT: Frank C. Campagna, Associate Director, 
Receivership Operations, Division of Resolutions and Receiverships 
(972) 761-8025 or [email protected]; or Shane Kiernan, Counsel, Legal 
Division (703) 562-2632 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Act

    The Dodd-Frank Act,\1\ signed into law on July 21, 2010, provided 
for a substantial reorganization of the regulation of State and Federal 
savings associations and their holding companies. Beginning July 21, 
2011, the transfer date established by section 311 of the Dodd-Frank 
Act,\2\ the powers, duties, and functions formerly performed by the OTS 
were divided among the FDIC as to State savings associations, the 
Office of Comptroller of the Currency (OCC) as to Federal savings 
associations, and the Board of Governors of the Federal Reserve System 
(FRB) as to savings and loan holding companies. Section 316(b) of the 
Dodd-Frank Act \3\ provides the manner of treatment for all orders, 
resolutions, determinations, regulations, and other advisory materials 
that were issued, made, prescribed, or allowed to become effective by 
the OTS. The section provides that if such advisory materials 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.
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    \1\ Public Law 111-203, 12 U.S.C. 5301, et seq. (2010).
    \2\ 12 U.S.C. 5411.
    \3\ 12 U.S.C. 5414(b).
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    Section 316(c) of the Dodd-Frank Act \4\ further directed the FDIC 
and the OCC to consult with one another and to publish a list of the 
continued OTS regulations that would be enforced by the FDIC and the 
OCC respectively. On June 14, 2011, the FDIC's Board of Directors 
approved a ``List of OTS Regulations to be Enforced by the OCC and the 
FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.'' This list was published by the FDIC and the OCC as a 
Joint Notice in the Federal Register on July 6, 2011.\5\
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    \4\ 12 U.S.C. 5414(c).
    \5\ 76 FR 39247 (July 6, 2011).
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FDIC's Authority

    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act \6\ 
granted the OCC rulemaking authority relating to both State and Federal 
savings associations, nothing in the Dodd-Frank Act affected the FDIC's 
existing authority to issue regulations under the Federal Deposit 
Insurance Act (the FDI Act) \7\ and other laws as the ``appropriate 
Federal banking agency.'' Section 312(c) of the Dodd-Frank Act amended 
section 3(q) of the FDI Act \8\ and designated the FDIC as the 
``appropriate Federal banking agency'' for State savings associations. 
As a result, when the FDIC acts as the designated ``appropriate Federal 
banking agency'' for State savings associations, as it does here, the 
FDIC is authorized to issue, modify and rescind regulations involving 
such associations.
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    \6\ 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \7\ 12 U.S.C. 1811, et seq.
    \8\ 12 U.S.C. 1813(q).
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    As noted, on June 14, 2011, the FDIC's Board of Directors reissued 
and redesignated certain regulations promulgated by the former OTS. 
These transferred OTS regulations were published as FDIC interim rules 
in the Federal Register on August 5, 2011.\9\ 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.
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    \9\ 76 FR 47652 (August 5, 2011).
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    One of the regulations transferred to the FDIC set forth procedures 
to be followed by conservators and receivers for Federal and State 
savings associations upon taking possession of said entities and for 
providing notice of appointment. This OTS regulation, formerly found at 
12 CFR part 558, was transferred to the FDIC with only nominal changes 
and is now subpart N in 12 CFR part 390.
    The FDIC's authority to act as conservator or receiver and its 
powers and duties in those roles are set forth in the FDI Act and in 
regulations found in 12 CFR part 360. The Board has delegated authority 
to staff to establish policies and procedures for carrying out 
receivership operations. The FDI Act and the policies and procedures 
implemented and followed by FDIC staff subsume the responsibilities set 
forth in subpart N.\10\
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    \10\ Such policies and procedures include the FDIC Division of 
Resolution and Receivership's Failed Financial Institution Closing 
Manual.
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II. Final Rule

    Section 316(b) of the Dodd-Frank Act provides that the former OTS's 
regulations will continue in effect until they are modified, 
terminated, set aside, or superseded in accordance with applicable 
law.\11\ After careful review of subpart N, the FDIC has determined 
that it should be rescinded and removed because it is unnecessary, or 
because it prescribes actions that are duplicative of actions taken by 
the OCC or state chartering authority. The provisions of the FDI Act 
and the FDIC's existing policies and procedures sufficiently address 
the provision of notice of appointment and the authority to take 
possession of, and exercise control over, the assets of a failed 
institution, including insured Federal and State savings associations. 
The FDIC issued a

[[Page 5016]]

notice of proposed rulemaking to rescind and remove subpart N in the 
Federal Register and received no comments on its proposal.\12\
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    \11\ 12 U.S.C. 5414(b).
    \12\ 79 FR 45380, August 5, 2014.
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12 CFR 390.240--Procedure Upon Taking Possession

    The FDIC interim rule found at 12 CFR 390.240 (section 390.240) is 
the redesignation of the OTS regulation outlining procedures to be 
followed by conservators and receivers for Federal and State savings 
associations for taking possession of said entities upon appointment. 
The FDIC is rescinding and removing section 390.240 because it is 
unnecessary. Paragraph (a) requires the conservator or receiver to take 
possession of the failed institution's principal office in accordance 
with the terms of the appointment. The FDIC's procedure already 
provides that it takes coordinated simultaneous possession of all 
locations from which a failed institution operates. Moreover, the 
FDIC's powers and duties as conservator or receiver are set forth in 
the FDI Act, not pursuant to the ``terms of the . . . appointment.''
    Paragraphs (b)(1) and (b)(5), respectively, provide that the 
conservator or receiver shall immediately take possession of the 
institution's books, records, and assets, and shall succeed to rights, 
titles, powers and privileges of the savings association and its 
stockholders, members, account holders, depositors, officers, and 
directors. These provisions are redundant of the FDI Act, which 
provides that the FDIC succeeds to ``all rights, titles, powers, and 
privileges of the insured depository institution, and of any 
stockholder, member, accountholder, depositor, officer, or director of 
such institution with respect to the institution and the assets of the 
institution'' when acting as conservator or receiver.\13\
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    \13\ 12 U.S.C. 1821(d)(2)(A).
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    Paragraphs (b)(2), (3), and (4), respectively, instruct the 
conservator or receiver to ``notify in writing, served personally or by 
registered mail or telegraph'' all parties known to be holding or in 
possession of assets of the failed institution that the conservator or 
receiver has succeeded to all rights, powers and privileges of the 
failed institution; file a statement with the Executive Secretary that 
the conservator or receiver took possession of the failed institution; 
and post a notice on the door of the principal and other offices of the 
failed institution in the form, if any, prescribed by the OCC or state 
bank supervisor. For three reasons, these provisions are unnecessary 
given existing FDIC policies and procedures. First, the FDIC's practice 
is to demand the return of assets of the failed institution in whatever 
manner and form that is appropriate under the circumstances. Second, 
the Executive Secretary is provided with a copy of all closing 
documents by FDIC staff. Third, the OCC or state bank supervisor itself 
posts its order closing the institution on the door of the principal 
office.

12 CFR 390.241--Notice of Appointment

    The FDIC interim rule found at 12 CFR 390.241 (section 390.241) is 
the redesignation of the OTS regulation outlining procedures for giving 
notice of the appointment of a conservator or receiver for a Federal or 
State savings association. The FDIC is rescinding and removing section 
390.241 because it is unnecessary. Specifically, paragraph (a) requires 
the FDIC to designate the persons or entities who are to: (1) Give 
notice of the appointment ``to any officer or employee who is present 
in and appears to be in charge at the principal office of the savings 
association;'' \14\ (2) serve a copy of the order of appointment by (i) 
``leaving a certified copy of the order of appointment at the principal 
office of the savings association,'' \15\ or (ii) ``handing a certified 
copy of the order of appointment to the previous conservator . . . or 
the officer or employee of the savings association . . . who is present 
in and appears to be in charge at the principal office of the savings 
association;'' \16\ and (3) file with the Executive Secretary of the 
FDIC a statement that includes the date and time that notice of the 
appointment was given and service of the order of appointment was 
made.'' \17\ It is not necessary to include these provisions among the 
FDIC's regulations because the OCC or state chartering authority is 
responsible for providing or serving notice of the appointment of the 
FDIC as conservator or receiver on a Federal or State savings 
association. Further, the FDIC's Executive Secretary maintains records 
of the appointment of the FDIC as conservator or receiver. Paragraph 
(b), which instructs the FDIC to cause a notice of the appointment of 
the conservator or receiver to be published in the Federal Register, is 
unnecessary because the FDIC causes such a publication regarding any 
institution for which it is appointed as conservator or receiver in 
accordance with its policy and procedures.
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    \14\ 12 CFR 390.241(a)(1).
    \15\ 12 CFR 390.241(a)(2)(i).
    \16\ 12 CFR 390.241(a)(2)(ii).
    \17\ 12 CFR 390.241(a)(3).
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    For the reasons stated above, the FDIC is rescinding and removing 
subpart N. Doing so will serve to streamline the FDIC's rules, prevent 
confusion and eliminate unnecessary regulations.

III. Regulatory Analysis

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(44 U.S.C. 3501, et seq.) (PRA), the FDIC may not conduct or sponsor, 
and the respondent is not required to respond to, an information 
collection unless it displays a currently valid Office of Management 
and Budget (OMB) control number. Rescinding and removing subpart N will 
not revise any existing information collections pursuant to the PRA. 
Consequently, the FDIC has not submitted any information collection 
request to the OMB 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. Rescinding and removing subpart N will leave the 
FDI Act as the sole source of the FDIC's authority to act as 
conservator or receiver for an insured depository institution and does 
not impose any obligations or restrictions on banking organizations, 
including small banking organizations. On this basis, the FDIC 
certifies that the removal of subpart N would not have a significant 
impact on a substantial number of small entities within the meaning of 
those terms as used in the RFA.

C. Small Business Regulatory Enforcement Fairness Act

    No notice of a final rule is being provided to Congress regarding 
this amendment under the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 801, et seq., (SBREFA). SBREFA provides generally 
for agencies to report rules to Congress and for major rules not to 
take effect for a certain period after the notice has been received. 
However, section 251 of SBREFA provides that rules of agency practice 
and procedure that do not substantially affect the rights or 
obligations of non-agency parties are not subject to the reporting 
requirement and may be made effective in accordance

[[Page 5017]]

with the Administrative Procedure Act, 5 U.S.C. 701 et seq., and any 
other applicable law. The Office of Management and Budget has 
determined that the Final Rule is not a ``major rule'' within the 
meaning of SBREFA.

D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (``EGRPRA''), the FDIC is required to review all 
of its regulations, at least once every 10 years, in order to identify 
any outdated or otherwise unnecessary regulations imposed on insured 
institutions. The FDIC completed the last comprehensive review of its 
regulations under EGRPRA in 2006 and has commenced the next decennial 
review. The action taken on this rule will be included as part of the 
EGRPRA review that is currently under way.

E. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113 
Stat. 1338, 1471, 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. As a federal banking agency subject to the 
provisions of this section, the FDIC has sought to present the final 
rule to rescind and remove subpart N in a simple and straightforward 
manner. The FDIC's proposal to rescind and remove subpart N invited 
comments on whether the proposal was clearly stated and effectively 
organized, and how the FDIC might make the proposal easier to 
understand. No comments were received.

List of Subjects in Part 390

    Banks and banking, Savings associations.

Authority and Issuance

    For the reasons stated in the preamble and under the authority of 
12 U.S.C. 5412, the Board of Directors of the Federal Deposit Insurance 
Corporation amends 12 CFR part 390 as follows:

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

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

    Authority: 12 U.S.C. 1819.

    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 L also issued under 12 U.S.C. 1831p-1.
    Subpart M also issued under 12 U.S.C. 1818.
    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 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).

Subpart N--[Removed and Reserved]


0
2. Remove and reserve subpart N consisting of Sec. Sec.  390.240 
through 390.241.

    Dated at Washington, DC, this 21st day of January, 2015.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman.
Executive Secretary.
[FR Doc. 2015-01326 Filed 1-29-15; 8:45 am]
BILLING CODE 6714-01-P