Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Rules and Regulations 5009 

1 Dodd-Frank Wall Street Reform and Consumer 

Protection Act, Public Law 111–203, 124 Stat. 1376 

(2010). 

§ 851.8 [Amended] 

■ 24. Section 851.8 is amended in 

paragraph (b) by removing ‘‘Office of 

Health, Safety and Security’’ and adding 

in its place ‘‘Office of Environment, 

Health, Safety and Security’’, and in 

paragraph (c), by removing ‘‘Office of 

Health, Safety and Security, Office of 

Enforcement, HS–40’’, and adding in its 

place ‘‘Office of Enterprise Assessments, 

Office of Enforcement’’. 

§ 851.10 [Amended] 

■ 25. Section 851.10(a)(2)(ii) is amended 

by removing ‘‘With’’. 

§ 851.11 [Amended] 

■ 26. Section 851.11(b)(2) is amended 

by removing ‘‘Chief Health, Safety and 

Security Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

§ 851.27 [Amended] 

■ 27. Section 851.27(a)(2)(ii) is amended 

by removing ‘‘Office of Health, Safety 

and Security’’ and adding in its place 

‘‘Office of Environment, Health, Safety 

and Security’’. 

§ 851.30 [Amended] 

■ 28. Section 851.30(a) is amended by 

removing ‘‘Chief Health, Safety and 

Security Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

§ 851.31 [Amended] 

■ 29. Section 851.31 is amended: 

■ a. In paragraphs (a)(1), (a)(2), and 

(a)(3), by removing ‘‘Chief Health, Safety 

and Security Officer’’ and adding in its 

place ‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’; 

■ b. In paragraph (b) introductory text: 

■ i. By removing ‘‘Chief Health, Safety 

and Security Officer’’ and adding in its 

place ‘‘the Associate Under Secretary for 

Environment, Health, Safety and 

Security’’; and 

■ ii. By removing the Chief, Health, 

Safety and Security Officer and adding 

in its place ‘‘the Associate Under 

Secretary’’, and 

■ c. In paragraph (c)(5) by removing 

‘‘Chief Health, Safety and Security 

Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

§ 851.32 [Amended] 

■ 30. Section 851.32 is amended: 

■ a. In paragraph (a)(1), by removing 

‘‘Chief Health, Safety and Security 

Officer recommends approval of a 

variance application, the Chief Health, 

Safety and Security Officer’’, and adding 

in its place ‘‘Associate Under Secretary 

for Environment, Health, Safety and 

Security recommends approval of a 

variance application, the Associate 

Under Secretary’’. 

■ b. In paragraph (a)(2), by removing 

‘‘Chief Health, Safety and Security 

Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

■ c. In paragraph (a)(4), by removing 

‘‘Chief Health, Safety and Security 

Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

■ d. In paragraph (c)(1), by removing 

‘‘Chief Health, Safety and Security 

Officer recommends denial of a variance 

application, the Chief Health, Safety and 

Security Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security recommends denial of a 

variance application, the Associate 

Under Secretary’’. 

■ e. In paragraphs (c)(2)(i) and (ii), by 

removing ‘‘Chief Health, Safety and 

Security Officer’’ and adding in its place 

‘‘Associate Under Secretary for 

Environment, Health, Safety and 

Security’’. 

§ 851.34 [Amended] 

■ 31. In § 851.34, paragraphs (a) and (c) 

are amended by removing ‘‘Chief 

Health, Safety and Security Officer’’ and 

adding in its place ‘‘Associate Under 

Secretary for Environment, Health, 

Safety and Security’’. 

[FR Doc. 2015–01778 Filed 1–29–15; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Parts 308 and 390 

RIN 3064–AE08 

Removal of Transferred OTS 

Regulations Regarding Rules of 

Practice and Procedure and 

Amendments to FDIC Rules and 

Regulations 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Federal Deposit 

Insurance Corporation (FDIC) is 

adopting a final rule to rescind and 

remove from the Code of Federal 

Regulations rules transferred to the 

FDIC following the 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). The rule also makes 

conforming amendments to FDIC 

regulations. 

DATES: The Final Rule is effective on 

March 2, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Scott Patterson, Senior Review 

Examiner, Division of Risk Management 

Supervision, (202) 898–6953, Andrea 

Winkler, Supervisory Counsel, Legal 

Division, (202) 898–3727; Heather 

Walters, Counsel, Legal Division, (202) 

898–6729. 

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 DoddFrank 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. 

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 

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 


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2 12 U.S.C. 5412(b)(2)(C). 

3 79 FR 22056 (Apr. 21, 2014). 

4 Id. at 22057. 

5 Id. 

6 Id. at 22058. 

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 DoddFrank 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

II. Proposed Rule 

On April 21, 2014, the FDIC 

published an NPR regarding the removal 

of certain subparts from 12 CFR part 390 

in an effort to streamline regulations for 

all FDIC-supervised institutions and 

eliminate duplicative regulations. The 

NPR also proposed minor technical 

changes to 12 CFR part 308 to conform 

the existing FDIC regulations to 

accommodate State savings associations, 

add jurisdiction for new statutes, and 

reflect internal organization changes. 

The specific changes are set forth below 

in Section IV. 

A. Removal of Part 390, subpart C 

(Former OTS 12 CFR Part 509, subparts 

A and B) 

Part 390, subpart C governs the rules 

and procedures applicable to 

administrative enforcement actions for 

State savings associations and their 

institution-affiliated parties (IAPs).3 The 

former OTS rule was transferred to the 

FDIC with only nominal changes. As 

discussed in the Proposed Rule, the 

FDIC carefully reviewed part 390, 

subpart C, and compared it with part 

308, subparts A and B, an FDIC 

regulation that existed before the 

transfer of part 390, subpart C, and that 

continues to remain in effect today. Like 

the transferred rule, part 308, subparts 

A and B govern the rules and 

procedures applicable to administrative 

enforcement proceedings for State 

nonmember banks and their IAPs.4

Although the two rules were 

substantively the same, the FDIC noted 

some distinctions and technical 

differences between the transferred OTS 

rule and part 308.5

B. Removal of Part 390, Subpart E 

(Former OTS 12 CFR Part 513) 

Part 390, subpart E governs the rules 

of practice before the FDIC and 

requirements for legal counsel.6 The 

FDIC carefully reviewed the transferred 

rule, part 390, subpart E, and compared 

it with part 308, subpart C, an FDIC 

regulation that existed before the 

transfer of part 390, subpart E and that 

continues to remain in effect today. Like 

the transferred rule, part 308, subpart C 

governs the suspension and debarment 

rules for legal counsel. Although the 

two rules were substantively the same, 

the FDIC noted some distinctions and 

technical differences between the 

transferred OTS rule and part 308. 

C. Removal of Part 390, Subpart D 

(Former OTS 12 CFR Part 512) 

Part 390, subpart D sets the rules for 

investigations and formal examination 

proceedings. The FDIC carefully 

reviewed the transferred rule, part 390, 

subpart D, and compared it with part 

308, subpart K, an FDIC regulation that 

existed before the transfer of part 390, 

subpart D and that continues to remain 

in effect today. Like the transferred rule, 

part 308, subpart K sets the rules for 

investigative proceedings. Although the 

two rules were substantively the same, 

the FDIC noted some distinctions and 

technical differences between the 

transferred OTS rule and part 308. The 

Final Rule conforms the rules and 

procedures for State savings 

associations and provides investigative 

authority for violations of certain 

statutes now enforced by the FDIC. 

D. Removal of Part 390, Subpart B 

(Former OTS 12 CFR 508) 

Part 390, subpart B sets the rules for 

removals, suspensions, and prohibitions 

where a crime is charged. The FDIC 

carefully reviewed the transferred rule, 

part 390, subpart B, and compared it 

with part 308, subpart N, an FDIC 

regulation that existed before the 

transfer of part 390, subpart B and that 

continues to remain in effect today. Like 

the transferred rule, part 308, subpart N 

sets the rules for proceedings relating to 

suspension, removal, and prohibition 

where a felony is charged. Although the 

two rules were substantively the same, 

the FDIC noted some distinctions and 

technical differences between the 

transferred OTS rule and part 308. The 

Final Rule conforms the rules and 

procedures for State savings 

associations. 

III. Comments 

The FDIC issued the NPR with a 60- 

day comment period that closed on June 

20, 2014. 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, 

subparts B, C, D, and E are substantively 

similar to part 308, subparts A, B, C, K, 

and N. Conforming the rules and 

procedures for all FDIC-supervised 

institutions will streamline the FDIC’s 

rules and eliminate unnecessary 

regulations. To that effect, the Final 

Rule removes and rescinds 12 CFR part 

390, subparts B, C, D, and E in their 

entirety. The Final Rule also makes 

minor technical changes to part 308, 

subparts A, B, C, K, and N to conform 

the FDIC’s rules and accommodate State 

savings associations, as described 

below. 

A. Technical Amendments to Part 308, 

Subpart A—Uniform Rules of Practice 

and Procedure, and Subpart B—General 

Rules of Procedure 

The Final Rule addresses the key 

difference between part 308, subparts A 

and B, and part 390, subpart C, which 

relates to the scope of discovery in 

administrative enforcement 

proceedings. Specifically, the FDIC’s 

rules at part 308, subparts A and B 

restrict discovery to document 

discovery only. State savings 

associations, for which the FDIC is the 

primary federal regulator (PFR), will 

now follow the same rules as other 

FDIC-supervised institutions. 

Additionally, the changes to part 308, 

subparts A and B include new 

jurisdictional language to ensure that 

the FDIC can take the necessary 

enforcement actions such as the 

assessment of civil money penalties 

against State savings associations. 

B. Technical Amendments to Part 308, 

Subpart C—Rules of Practice Before the 

FDIC and Standards of Conduct 

The Final Rule adds language to the 

suspension and debarment section to 

require attorneys who appear before the 

FDIC as legal counsel to disclose any 

professional disciplinary actions to the 

Board. 


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7 5 U.S.C. 601 et seq. 8Public Law 104–208 (Sept. 30, 1996). 

C. Technical Amendments to Part 308, 

Subpart K—Procedures Applicable to 

Investigations Pursuant to Section 10(c) 

of the FDIA 

The Final Rule adds language to 

provide the FDIC with the necessary 

investigative powers under certain 

statutes that were previously enforced 

by the OTS against State savings 

associations such as section 5(d)(1)(B) of 

Home Owners’ Loan Act of 1933, 12 

U.S.C. 1464(c) (‘‘HOLA’’). There are also 

conforming amendments to make 

subpart K procedures applicable to all 

enforcement investigations conducted 

by FDIC. The Final Rule also updates 

the language of the subpart to reflect 

internal organizational changes to the 

FDIC, as well as clarifying the 

behavioral standards for those 

participating in an official investigation. 

Finally, the Final Rule clarifies who 

may be present during sworn testimony 

and how a witness requests transcripts 

of that testimony. 

D. Technical Amendments to Part 308, 

Subpart N—Rules and Procedures 

Applicable to Proceedings Relating to 

Suspension, Removal, and Prohibition 

Where a Felony is Charged 

The Final Rule adds language to 

include State savings associations, 

provides guidance on immediate 

compliance with the suspension or 

prohibition proceeding, and clarifies 

that the IAP has the burden of proof to 

show that his or her continued 

participation in the industry does not 

pose a threat to, or public confidence in 

insured institutions. 

V. Administrative Law Matters 

A. The Paperwork Reduction Act 

The Final Rule rescinds and removes 

from FDIC regulations part 390, subparts 

B, C, D, and E. Further, with regard to 

part 308, the Final Rule makes minor 

amendments to subparts A, B, C, K, and 

N. The practical effect of these technical 

amendments to rules and procedures 

will not involve any new—or revisions 

to current—collections of information 

under the PRA. 

B. The Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 601 et. seq., generally requires 

an agency to consider whether a final 

rule will have a significant economic 

impact on a substantial number of small 

entities (defined in regulations 

promulgated by the Small Business 

Administration to include banking 

organizations with total assets of less 

than or equal to $550 million).7

Pursuant to section 605(b) of the RFA, 

a final regulatory flexibility analysis is 

not required if the agency certifies that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities, and publishes 

its certification and a short explanatory 

statement in the Federal Register 

together with the rule. For the reasons 

provided below, the FDIC certifies that 

the Final Rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, a regulatory flexibility 

analysis is not required. 

As discussed previously, part 390, 

subparts B, C, D, and E were transferred 

from OTS’s rules and procedures 

governing administrative enforcement 

proceedings and all State savings 

associations were required to comply 

with them. Because these subparts are 

redundant of existing part 308 of the 

FDIC’s rules, the Final Rule rescinds 

and removes part 390, subparts B, C, D, 

and E. As a result, all FDIC-supervised 

institutions—including State savings 

associations—must comply with Part 

308 if they are subject to administrative 

enforcement proceedings. Consequently, 

today’s Final Rule will have no 

significant economic impact on any 

State savings association. 

C. Small Business Regulatory 

Enforcement Fairness Act 

The Office of Management and Budget 

has determined that the Final Rule is 

not a ‘‘major rule’’ within the meaning 

of the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA), 5 U.S.C. 801 et seq. 

D. Plain Language 

Section 722 of the Gramm-LeachBliley Act, codified at 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. 

E. 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.8 The 

FDIC’s EGRPRA review is ongoing and 

is expected to be completed by 2016. 

The NPR solicited comments on 

whether the proposed rescission of part 

390, subparts B, C, D, and E and 

technical amendments to part 308, 

subparts A, B, C, K and N would impose 

any outdated or unnecessary regulatory 

requirements on insured depository 

institutions. No comments on this issue 

were received. Upon review, the FDIC 

does not believe that part 308, as 

amended by the Final Rule, imposes any 

outdated or unnecessary regulatory 

requirements on any insured depository 

institutions. 

List of Subjects 

12 CFR Part 390 

Administrative practice and 

procedure, Banks, Banking, Claims, 

Investigations lawyers, Penalties, State 

nonmember banks, State savings 

associations, and Standards of conduct. 

12 CFR Part 308 

Administrative practice and 

procedure, Banks, Banking, Claims, 

Investigations lawyers, Penalties, State 

nonmember banks, State savings 

associations, and Standards of conduct. 

Authority and Issuance 

For the reasons stated in the 

preamble, the Board of Directors of the 

Federal Deposit Insurance Corporation 

amends parts 308 and 390 of title 12 of 

the Code of Federal Regulations as set 

forth below: 

PART 308—RULES OF PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 308 

is revised to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 

1468, 1815(e), 1817, 1818, 1820, 1828, 1829, 

1829b, 1831i, 1831m(g)(4), 1831o, 1831p–1, 

1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 

3909, 4717, 5412(b)(2)(C), and 5414(b)(3); 15 

U.S.C. 78 (h) and (i), 78o(c)(4), 78o–4(c), 78o– 

5, 78q–1, 78s 78u, 78u–2, 78u–3 and 78w, 

6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 

U.S.C. 330, 5321; 42 U.S.C. 4012a; sec. 

31001(s), Pub. L. 104–134, 110 Stat. 1321– 

358, Pub. L. 109–351, and Pub. L. 111–203, 

124 Stat. 1376. 

Subpart A—Uniform Rules of Practice 

and Procedure 

■ 2. Section 308.1 is amended by 

revising paragraphs (e) introductory text 

and (e)(1) and (9), and adding 

paragraphs (e)(12) through (14), to read 

as follows: 


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5012 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Rules and Regulations 

§ 308.1 Scope. 

* * * * * 

(e) Assessment of civil money 

penalties by the FDIC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate regulatory 

agency for any violation of: 

(1) Sections 22(h) and 23 of the 

Federal Reserve Act (FRA), or any 

regulation issued thereunder, and 

certain unsafe or unsound practices or 

breaches of fiduciary duty, pursuant to 

12 U.S.C. 1828(j) or 12 U.S.C. 1468; 

* * * * * 

(9) The terms of any final or 

temporary order issued under section 8 

of the FDIA or of any written agreement 

executed by the FDIC or the former 

Office of Thrift Supervision (OTS), the 

terms of any condition imposed in 

writing by the FDIC in connection with 

the grant of an application or request, 

certain unsafe or unsound practices or 

breaches of fiduciary duty, or any law 

or regulation not otherwise provided 

herein pursuant to 12 U.S.C. 1818(i)(2); 

* * * * * 

(12) Certain provisions of Section 5 of 

the Home Owners’ Loan Act (HOLA) or 

any regulation or order issued 

thereunder, pursuant to 12 U.S.C. 

1464(d)(1), (5)–(8), (s), and (v); 

(13) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); 

(14) Section 10 of HOLA, pursuant to 

12 U.S.C. 1467a(a)(2)(D), (g), (i)(2)–(4) 

and (r); and 

* * * * * 

■ 2a. Section 308.3 is amended as 

follows: 

■ a. Revise paragraphs (e) and (j)(3). 

■ b. Redesignate paragraphs (k) through 

(r) as paragraphs (l) through (s) and 

revise newly redesignated paragraphs (l) 

through (s). 

■ c. Add new paragraph (l). 

The revisions read as follows: 

§ 308.3 Definitions. 

* * * * * 

(e) Designee of the Board of Directors 

means officers or officials of the Federal 

Deposit Insurance Corporation acting 

pursuant to authority delegated by the 

Board of Directors. 

* * * * * 

(j) Institution includes: 

* * * * * 

(3) Any savings association as that 

term is defined in section 3(b) of the 

FDIA (12 U.S.C. 1813(b)), any savings 

and loan holding company or any 

subsidiary thereof (other than a bank) as 

those terms are defined in section 10(a) 

of the HOLA (12 U.S.C. 1467a(a)); 

* * * * * 

(l) Investigation means any 

investigation conducted pursuant to 

section 10(c) of the FDIA or pursuant to 

section 5(d)(1)(B) of HOLA (12 U.S.C. 

1464(d)(1)(B)). 

(m) Local Rules means those rules 

promulgated by the FDIC in those 

subparts of this part other than subpart 

A. 

(n) Office of Financial Institution 

Adjudication (OFIA) means the 

executive body charged with overseeing 

the administration of administrative 

enforcement proceedings of the Office of 

the Comptroller of the Currency (OCC), 

the Board of Governors of the Federal 

Reserve Board (FRB), the FDIC, and the 

National Credit Union Administration 

(NCUA). 

(o) Party means the FDIC and any 

person named as a party in any notice. 

(p) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency or other 

entity or organization, including an 

institution as defined in paragraph (j) of 

this section. 

(q) Respondent means any party other 

than the FDIC. 

(r) Uniform Rules means those rules 

in subpart A of this part that pertain to 

the types of formal administrative 

enforcement actions set forth at § 308.1 

and as specified in subparts B through 

P of this part. 

(s) Violation includes any action 

(alone or with another or others) for or 

toward causing, bringing about, 

participating in, counseling, or aiding or 

abetting a violation. 

■ 3. Section 308.25 is amended by 

revising paragraph (b) to read as follows: 

§ 308.25 Request for document discovery 

from parties. 

* * * * * 

(b) Production or copying. The request 

must specify a reasonable time, place, 

and manner for production and 

performing any related acts. In lieu of 

inspecting the documents, the 

requesting party may specify that all or 

some of the responsive documents be 

copied and the copies delivered to the 

requesting party. If copying of fewer 

than 250 pages is requested, the party to 

whom the request is addressed shall 

bear the cost of copying and shipping 

charges. If a party requests 250 pages or 

more of copying, the requesting party 

shall pay for the copying and shipping 

charges. Copying charges are the current 

per page copying rate imposed by 12 

CFR part 309 implementing the 

Freedom of Information Act (5 U.S.C. 

552). The party to whom the request is 

addressed may require payment in 

advance before producing the 

documents. 

* * * * * 

Subpart B—General Rules of 

Procedure 

■ 4. Section 308.101 is amended by 

revising paragraph (a) and adding 

paragraph (d) to read as follows: 

§ 308.101 Scope of Local Rules. 

(a) Subparts B and C of the Local 

Rules prescribe rules of practice and 

procedure to be followed in the 

administrative enforcement proceedings 

initiated by the FDIC as set forth in 

§ 308.1 of the Uniform Rules. 

* * * * * 

(d) Subparts A, B, and C of this part 

prescribe the rules of practice and 

procedure to applicable to adjudicatory 

proceedings as to which hearings on the 

record are provided for by the 

assessment of civil money penalties by 

the FDIC against institutions, 

institution-affiliated parties, and certain 

other persons for which it is the 

appropriate regulatory agency for any 

violation of section 15(c)(4) of the 

Exchange Act (15 U.S.C. 78o(c)(4)). 

■ 5. Section 308.107 is amended by 

revising paragraph (a) to read as follows: 

§ 308.107 Document discovery. 

(a) Parties to proceedings set forth at 

§ 308.1 of the Uniform Rules and as 

provided in the Local Rules may obtain 

discovery only through the production 

of documents. No other form of 

discovery shall be allowed. 

* * * * * 

Subpart C—Rules of Practice Before 

the FDIC and Standards of Conduct 

■ 6. Section 308.109 is amended by 

revising paragraphs (b)(1) and (2) to read 

as follows: 

§ 308.109 Suspension and disbarment. 

* * * * * 

(b) Mandatory suspension and 

disbarment. (1) Any counsel who has 

been and remains suspended or 

disbarred by a court of the United States 

or of any state, territory, district, 

commonwealth, or possession; or any 

person who has been and remains 

suspended or barred from practice 

before the OCC, Board of Governors, the 

OTS, the NCUA, the Securities and 

Exchange Commission, or the 

Commodity Futures Trading 

Commission; or any person who has 

been, within the last ten years, 

convicted of a felony, or of a 

misdemeanor involving moral 

turpitude, shall be suspended 


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Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Rules and Regulations 5013 

automatically from appearing or 

practicing before the FDIC. A 

disbarment, suspension, or conviction 

within the meaning of this paragraph (b) 

shall be deemed to have occurred when 

the disbarring, suspending, or 

convicting agency or tribunal enters its 

judgment or order, regardless of whether 

an appeal is pending or could be taken, 

and includes a judgment or an order on 

a plea of nolo contendere or on consent, 

regardless of whether a violation is 

admitted in the consent. 

(2) Any person appearing or 

practicing before the FDIC who is the 

subject of an order, judgment, decree, or 

finding of the types set forth in 

paragraph (b)(1) of this section shall 

promptly file with the Executive 

Secretary a copy thereof, together with 

any related opinion or statement of the 

agency or tribunal involved. Any person 

who fails to so file a copy of the order, 

judgment, decree, or finding within 30 

days after the entry of the order, 

judgment, decree, or finding or the date 

such person initiates practice before the 

FDIC, for that reason alone may be 

disqualified from practicing before the 

FDIC until such time as the appropriate 

filing shall be made. Failure to file any 

such paper shall not impair the 

operation of any other provision of this 

section. 

* * * * * 

Subpart K—Procedures Applicable to 

Investigations Pursuant to Section 

10(c) of the FDIA and Section 5(d)(1)(B) 

of HOLA 

■ 7. Section 308.144 is revised to read 

as follows: 

§ 308.144 Scope. 

The procedures of this subpart shall 

be followed when an investigation is 

instituted and conducted in connection 

with any open or failed insured 

depository institution, any institutions 

making application to become insured 

depository institutions, and affiliates 

thereof, or with other types of 

investigations to determine compliance 

with applicable law and regulations, 

pursuant to section 10(c) of the FDIA 

(12 U.S.C. 1820(c)) or section 5(d)(1)(B) 

of HOLA (12 U.S.C. 1464(d)(1)(B)). The 

Uniform Rules and subpart B of the 

Local Rules shall not apply to 

investigations under this subpart. 

■ 8. Section 308.145 is revised to read 

as follows: 

§ 308.145 Conduct of investigation. 

An investigation shall be initiated 

only upon issuance of an order by the 

Board of Directors; or by the General 

Counsel, the Director of the Division of 

Risk Management Supervision, the 

Director of the Division of Depositor and 

Consumer Protection, or their respective 

designees. The order shall indicate the 

purpose of the investigation and 

designate FDIC’s representative(s) to 

direct the conduct of the investigation. 

Upon application and for good cause 

shown, the persons who issue the order 

of investigation may limit, quash, 

modify, or withdraw it. Upon the 

conclusion of the investigation, an order 

of termination of the investigation shall 

be issued by the persons issuing the 

order of investigation. 

■ 9. Section 308.146 is revised to read 

as follows: 

§ 308.146 Powers of person conducting 

investigation. 

The person designated to conduct the 

investigation shall have the power, 

among other things, to administer oaths 

and affirmations, to take and preserve 

testimony under oath, to issue 

subpoenas and subpoenas duces tecum 

and to apply for their enforcement to the 

United States District Court for the 

judicial district or the United States 

court in any territory in which the main 

office of the bank, institution, or affiliate 

is located or in which the witness 

resides or conducts business. The 

person conducting the investigation 

may obtain the assistance of counsel or 

others from both within and outside the 

FDIC. The persons who issue the order 

of investigation may limit, quash, or 

modify any subpoena or subpoena 

duces tecum, upon application and for 

good cause shown. The person 

conducting an investigation may report 

to the Board of Directors any instance 

where any attorney has engaged in 

contemptuous, dilatory, obstructionist, 

or contumacious conduct or has 

otherwise violated any provision of this 

part during the course of an 

investigation. The Board of Directors, 

upon motion of the person conducting 

the investigation, or on its own motion, 

may make a finding of contempt and 

may then summarily suspend, without a 

hearing, any attorney representing a 

witness from further participation in the 

investigation. 

■ 10. Section 308.147 is revised to read 

as follows: 

§ 308.147 Investigations confidential. 

Investigations shall be confidential. 

Information and documents obtained by 

the FDIC in the course of such 

investigations shall not be disclosed, 

except as provided in part 309 of this 

chapter and as otherwise required by 

law. 

■ 11. Section 308.148 is amended by 

revising the introductory text and 

paragraph (c) to read as follows: 

§ 308.148 Rights of witnesses. 

In an investigation: 

* * * * * 

(c) All persons testifying shall be 

sequestered. Such persons and their 

counsel shall not be present during the 

testimony of any other person, unless 

permitted in the discretion of the person 

conducting the investigation. Neither 

attorney(s) for the institution that is the 

subject of the investigation, nor 

attorney(s) for any other interested 

persons, shall have any right to be 

present during the testimony of any 

witness not personally represented by 

such attorney; 

* * * * * 

■ 12. Section 308.150 is amended by 

revising paragraph (a) to read as follows: 

§ 308.150 Transcripts. 

(a) General rule. Transcripts of 

testimony, if any, shall be recorded by 

an official reporter, or by any other 

person or means designated by the 

person conducting the investigation. A 

witness may, solely for the use and 

benefit of the witness, obtain a copy of 

the transcript of his or her testimony at 

the conclusion of the investigation or, at 

the discretion of the person conducting 

the investigation, at an earlier time, 

provided that the witness submits a 

written request for the transcript and the 

transcript is available. The witness 

requesting a copy of his or her 

testimony shall bear the cost thereof. 

* * * * * 

Subpart N—Rules and Procedures 

Applicable to Proceedings Relating to 

Suspension, Removal, and Prohibition 

Where a Felony ls Charged 

■ 13. Section 308.161 is amended by 

republishing the introductory text and 

revising paragraph (a) to read as follows: 

§ 308.161 Scope. 

The rules and procedures set forth in 

this subpart shall apply to the following: 

(a) Proceedings to suspend an 

institution-affiliated party of an insured 

State nonmember bank, or an insured 

State savings association, or to prohibit 

such party from further participation in 

the conduct of the affairs of any 

depository institution, if continued 

service or participation by such party 

posed, poses, or may pose a threat to the 

interests of the depositors of, or 

threatened, threatens, or may threaten to 

impair public confidence in, any 

relevant depository institution (as 

defined at section 1818(g)(1)(E) of Title 


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5014 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Rules and Regulations 

12), where the individual is the subject 

of any state or federal information, 

indictment, or complaint, involving the 

commission of, or participation in: 

* * * * * 

■ 14. Section 308.163 is amended by 

revising paragraphs (a)(2) and (c), and 

adding paragraph (d), to read as follows: 

§ 308.163 Notice of suspension or 

prohibition, and orders of removal or 

prohibition. 

(a) * * * 

(2) The suspension or prohibition 

shall be effective immediately upon 

service on the institution-affiliated 

party, who shall immediately comply 

with the requirements thereof, and shall 

remain in effect until final disposition 

of the information, indictment, 

complaint, or until it is terminated by 

the Board of Directors or its designee 

under the provisions of § 308.164 or 

otherwise. 

* * * * * 

(c) The notice of suspension or 

prohibition or the order of removal or 

prohibition shall: 

(1) Inform the institution-affiliated 

party that a written request for a 

hearing, stating the relief desired and 

grounds therefore, and any supporting 

evidence, may be filed with the 

Executive Secretary within 30 days after 

service of the written notice or order; 

and 

(2) Set forth the basis and facts in 

support of the notice or order and 

address the relevant considerations 

specified in § 308.162. 

(d) To obtain a hearing, the 

institution-affiliated party shall file with 

the Executive Secretary a written 

request for a hearing within 30 days 

after service of the notice of suspension 

or prohibition or the order of removal or 

prohibition, which shall: 

(1) Admit or deny specifically each 

allegation in the notice or order, or state 

that the institution-affiliated party is 

without knowledge or information, 

which statement shall have the effect of 

a denial. Any allegation not denied shall 

be deemed to be admitted. When an 

institution-affiliated party intends in 

good faith to deny only a part of or to 

qualify an allegation, he shall specify so 

much of it as is true and shall deny only 

the remainder; and 

(2) Shall state whether the institutionaffiliated party is requesting termination 

or modification of the notice or order, 

and shall state with particularity how he 

intends to show that his continued 

service to or participation in the 

conduct of the affairs of the depository 

institution would not, or is not likely to, 

pose a threat to the interests of its 

depositors or to impair public 

confidence in the depository institution. 

■ 15. Section 308.164 is amended by 

revising paragraphs (b)(1), (3), and (5), 

and adding paragraph (b)(10), to read as 

follows: 

§ 308.164 Hearings. 

* * * * * 

(b) Hearing procedure. (1) The hearing 

shall be held in Washington, DC, or at 

another designated place, before a 

presiding officer designated by the 

Executive Secretary. 

* * * * * 

(3) The institution-affiliated party 

may appear at the hearing and shall 

have the right to introduce relevant and 

material documents. Members of the 

FDIC enforcement staff may attend the 

hearing and participate as 

representatives of the FDIC enforcement 

staff. Following the introduction of all 

evidence, the applicant and the 

representative of the FDIC enforcement 

staff shall have an opportunity for oral 

argument; however, the parties may 

jointly waive the right to oral argument, 

and, in lieu thereof, elect to submit 

written argument. 

* * * * * 

(5) At the discretion of the presiding 

officer, witnesses may be presented 

within specified time limits, provided 

that a list of witnesses is furnished to 

the presiding officer and to all other 

parties prior to the hearing. Witnesses 

shall be sworn, unless otherwise 

directed by the presiding officer. The 

presiding officer may ask questions of 

any witness. Each party shall have the 

opportunity to cross-examine any 

witness presented by an opposing party. 

The transcript of the proceedings shall 

be furnished, upon request and payment 

of the cost thereof, to the institutionaffiliated party afforded the hearing. A 

copy of the transcript shall be sent 

directly to the presiding officer, who 

shall have authority to correct the 

record sua sponte or upon the motion of 

any party. 

* * * * * 

(10) The institution-affiliated party 

has the burden of showing, by a 

preponderance of the evidence, that his 

or her continued service to or 

participation in the conduct of the 

affairs of a depository institution does 

not, or is not likely to, pose a threat to 

the interests of the depository 

institution’s depositors or threaten to 

impair public confidence in the 

depository institution. 

* * * * * 

PART 390—REGULATIONS 

TRANSFERRED FROM THE OFFICE OF 

THRIFT SUPERVISION 

■ 16. 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 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 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). 

Subpart B—[Removed and reserved] 

■ 17. Remove and reserve part 390, 

subpart B consisting of §§ 390.10 

through 390.23. 

Subpart C—[Removed and reserved] 

■ 18. Remove and reserve part 390, 

subpart C consisting of §§ 390.30 

through 390.75. 

Subpart D—[Removed and reserved] 

■ 19. Remove and reserve part 390, 

subpart D consisting of §§ 390.80 

through 390.86. 


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Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Rules and Regulations 5015 

1Public Law 111–203, 12 U.S.C. 5301, et seq. 

(2010). 

2 12 U.S.C. 5411. 

3 12 U.S.C. 5414(b). 

4 12 U.S.C. 5414(c). 

5 76 FR 39247 (July 6, 2011). 

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). 

9 76 FR 47652 (August 5, 2011). 

10Such policies and procedures include the FDIC 

Division of Resolution and Receivership’s Failed 

Financial Institution Closing Manual. 

11 12 U.S.C. 5414(b). 

Subpart E—[Removed and reserved] 

■ 20. Remove and reserve part 390, 

subpart E consisting of §§ 390.90 

through 390.97. 

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. 2015–01327 Filed 1–29–15; 8:45 am] 

BILLING CODE 6714–01–P 

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. 

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 DoddFrank 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 FrCampagna@FDIC.gov; or 

Shane Kiernan, Counsel, Legal Division 

(703) 562–2632 or skiernan@fdic.gov. 

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. 

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 DoddFrank 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

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. 

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. 

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

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 


rljohnson on DSK4SPTVN1PROD with RULES