5069Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules
7 The FDIC expects to evaluate jointly with the
Board, FDIC, and OCC whether foreign special
resolution regimes meet the requirements of this
proposed rule.
1 The FDIC expects to evaluate jointly with the
Board and OCC whether foreign special resolution
regimes meet the requirements of this proposed
rule.
Repo-style transaction means a
repurchase or reverse repurchase
transaction, or a securities borrowing or
securities lending transaction, including
a transaction in which the FDIC-
supervised institution acts as agent for
a customer and indemnifies the
customer against loss, provided that:
(1) The transaction is based solely on
liquid and readily marketable securities,
cash, or gold;
(2) The transaction is marked-to-fair
value daily and subject to daily margin
maintenance requirements;
(3)(i) The transaction is a ‘‘securities
contract’’ or ‘‘repurchase agreement’’
under section 555 or 559, respectively,
of the Bankruptcy Code (11 U.S.C. 555
or 559), a qualified financial contract
under section 11(e)(8) of the Federal
Deposit Insurance Act, or a netting
contract between or among financial
institutions under sections 401–407 of
the Federal Deposit Insurance
Corporation Improvement Act or the
Federal Reserve’s Regulation EE (12 CFR
part 231); or
(ii) If the transaction does not meet
the criteria set forth in paragraph (3)(i)
of this definition, then either:
(A) The transaction is executed under
an agreement that provides the FDIC-
supervised institution the right to
accelerate, terminate, and close-out the
transaction on a net basis and to
liquidate or set-off collateral promptly
upon an event of default, including
upon an event of receivership,
insolvency, liquidation, or similar
proceeding, of the counterparty,
provided that, in any such case, any
exercise of rights under the agreement
will not be stayed or avoided under
applicable law in the relevant
jurisdictions, other than in receivership,
conservatorship, or resolution under the
Federal Deposit Insurance Act, Title II
of the Dodd-Frank Act, or under any
similar insolvency law applicable to
GSEs, or laws of foreign jurisdictions
that are substantially similar 7 to the
U.S. laws referenced in this paragraph
in order to facilitate the orderly
resolution of the defaulting
counterparty; or
(B) The transaction is:
(1) Either overnight or
unconditionally cancelable at any time
by the FDIC-supervised institution; and
(2) Executed under an agreement that
provides the FDIC-supervised
institution the rights to accelerate,
terminate, and close-out the transaction
on a net basis and to liquidate or set off
collateral promptly upon an event of
counterparty default.
(4) In order to recognize an exposure
as a repo-style transaction for purposes
of this subpart, an FDIC-supervised
institution must comply with the
requirements of § 324.3(e) of this part
with respect to that exposure.
* * * * *
PART 329—LIQUIDITY RISK
MEASUREMENT STANDARDS
■ 3. The authority citation for part 329
continues to read as follows:
Authority: 12 U.S.C. 1815, 1816, 1818,
1819, 1828, 1831p–1, 5412.
■ 4. Amend § 329.3 by revising the
definition of ‘‘Qualifying master netting
agreement’’ and renumbering the
remaining footnotes throughout the part
to read as follows:
§ 329.3 Definitions.
* * * * *
Qualifying master netting agreement
means a written, legally enforceable
agreement provided that:
(1) The agreement creates a single
legal obligation for all individual
transactions covered by the agreement
upon an event of default following any
stay permitted by paragraph (2) of this
definition, including upon an event of
receivership, insolvency,
conservatorship, liquidation, or similar
proceeding, of the counterparty;
(2) The agreement provides the FDIC-
supervised institution the right to
accelerate, terminate, and close-out on a
net basis all transactions under the
agreement and to liquidate or set-off
collateral promptly upon an event of
default, including upon an event of
receivership, conservatorship,
insolvency, liquidation, or similar
proceeding, of the counterparty,
provided that, in any such case, any
exercise of rights under the agreement
will not be stayed or avoided under
applicable law in the relevant
jurisdictions, other than:
(i) In receivership, conservatorship, or
resolution under the Federal Deposit
Insurance Act, Title II of the Dodd-
Frank Act, or under any similar
insolvency law applicable to GSEs, or
laws of foreign jurisdictions that are
substantially similar 1 to the U.S. laws
referenced in this paragraph (2)(i) in
order to facilitate the orderly resolution
of the defaulting counterparty; or
(ii) Where the agreement is subject by
its terms to, or incorporates, any of the
laws referenced in paragraph (2)(i) of
this definition;
(3) The agreement does not contain a
walkaway clause (that is, a provision
that permits a non-defaulting
counterparty to make a lower payment
than it otherwise would make under the
agreement, or no payment at all, to a
defaulter or the estate of a defaulter,
even if the defaulter or the estate of the
defaulter is a net creditor under the
agreement); and
(4) In order to recognize an agreement
as a qualifying master netting agreement
for purposes of this subpart, a FDIC-
supervised institution must comply
with the requirements of § 329.4(a) with
respect to that agreement.
* * * * *
Dated: January 21, 2015.
By order of the Board of Directors of the
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2015–01324 Filed 1–29–15; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Parts 334 and 391
RIN 3064–AE29
Transferred OTS Regulations
Regarding Fair Credit Reporting and
Amendments; Amendment to the
‘‘Creditor’’ Definition in Identity Theft
Red Flags Rule; Removal of FDIC
Regulations Regarding Fair Credit
Reporting Transferred to the
Consumer Financial Protection Bureau
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of proposed rulemaking.
SUMMARY: In this notice of proposed
rulemaking (Proposed Rule), the Federal
Deposit Insurance Corporation (FDIC)
proposes to make several amendments
to its regulations covering ‘‘Fair Credit
Reporting.’’
First, the FDIC proposes to rescind
and remove from the Code of Federal
Regulations 12 CFR part 391, subpart C
(part 391, subpart C), entitled ‘‘Fair
Credit Reporting.’’ This subpart was
included in the regulations that were
transferred to the FDIC from the 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 requirements for State savings
associations in part 391, subpart C are
substantively similar to those in the
VerDate Sep<11>2014 14:35 Jan 29, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\30JAP1.SGM 30JAP1
rljohnson on DSK4SPTVN1PROD with PROPOSALS
7 The FDIC expects to evaluate jointly with the
Board, FDIC, and OCC whether foreign special
resolution regimes meet the requirements of this
proposed rule.
1 The FDIC expects to evaluate jointly with the
Board and OCC whether foreign special resolution
regimes meet the requirements of this proposed
rule.
Repo-style transaction means a
repurchase or reverse repurchase
transaction, or a securities borrowing or
securities lending transaction, including
a transaction in which the FDIC-
supervised institution acts as agent for
a customer and indemnifies the
customer against loss, provided that:
(1) The transaction is based solely on
liquid and readily marketable securities,
cash, or gold;
(2) The transaction is marked-to-fair
value daily and subject to daily margin
maintenance requirements;
(3)(i) The transaction is a ‘‘securities
contract’’ or ‘‘repurchase agreement’’
under section 555 or 559, respectively,
of the Bankruptcy Code (11 U.S.C. 555
or 559), a qualified financial contract
under section 11(e)(8) of the Federal
Deposit Insurance Act, or a netting
contract between or among financial
institutions under sections 401–407 of
the Federal Deposit Insurance
Corporation Improvement Act or the
Federal Reserve’s Regulation EE (12 CFR
part 231); or
(ii) If the transaction does not meet
the criteria set forth in paragraph (3)(i)
of this definition, then either:
(A) The transaction is executed under
an agreement that provides the FDIC-
supervised institution the right to
accelerate, terminate, and close-out the
transaction on a net basis and to
liquidate or set-off collateral promptly
upon an event of default, including
upon an event of receivership,
insolvency, liquidation, or similar
proceeding, of the counterparty,
provided that, in any such case, any
exercise of rights under the agreement
will not be stayed or avoided under
applicable law in the relevant
jurisdictions, other than in receivership,
conservatorship, or resolution under the
Federal Deposit Insurance Act, Title II
of the Dodd-Frank Act, or under any
similar insolvency law applicable to
GSEs, or laws of foreign jurisdictions
that are substantially similar 7 to the
U.S. laws referenced in this paragraph
in order to facilitate the orderly
resolution of the defaulting
counterparty; or
(B) The transaction is:
(1) Either overnight or
unconditionally cancelable at any time
by the FDIC-supervised institution; and
(2) Executed under an agreement that
provides the FDIC-supervised
institution the rights to accelerate,
terminate, and close-out the transaction
on a net basis and to liquidate or set off
collateral promptly upon an event of
counterparty default.
(4) In order to recognize an exposure
as a repo-style transaction for purposes
of this subpart, an FDIC-supervised
institution must comply with the
requirements of § 324.3(e) of this part
with respect to that exposure.
* * * * *
PART 329—LIQUIDITY RISK
MEASUREMENT STANDARDS
■ 3. The authority citation for part 329
continues to read as follows:
Authority: 12 U.S.C. 1815, 1816, 1818,
1819, 1828, 1831p–1, 5412.
■ 4. Amend § 329.3 by revising the
definition of ‘‘Qualifying master netting
agreement’’ and renumbering the
remaining footnotes throughout the part
to read as follows:
§ 329.3 Definitions.
* * * * *
Qualifying master netting agreement
means a written, legally enforceable
agreement provided that:
(1) The agreement creates a single
legal obligation for all individual
transactions covered by the agreement
upon an event of default following any
stay permitted by paragraph (2) of this
definition, including upon an event of
receivership, insolvency,
conservatorship, liquidation, or similar
proceeding, of the counterparty;
(2) The agreement provides the FDIC-
supervised institution the right to
accelerate, terminate, and close-out on a
net basis all transactions under the
agreement and to liquidate or set-off
collateral promptly upon an event of
default, including upon an event of
receivership, conservatorship,
insolvency, liquidation, or similar
proceeding, of the counterparty,
provided that, in any such case, any
exercise of rights under the agreement
will not be stayed or avoided under
applicable law in the relevant
jurisdictions, other than:
(i) In receivership, conservatorship, or
resolution under the Federal Deposit
Insurance Act, Title II of the Dodd-
Frank Act, or under any similar
insolvency law applicable to GSEs, or
laws of foreign jurisdictions that are
substantially similar 1 to the U.S. laws
referenced in this paragraph (2)(i) in
order to facilitate the orderly resolution
of the defaulting counterparty; or
(ii) Where the agreement is subject by
its terms to, or incorporates, any of the
laws referenced in paragraph (2)(i) of
this definition;
(3) The agreement does not contain a
walkaway clause (that is, a provision
that permits a non-defaulting
counterparty to make a lower payment
than it otherwise would make under the
agreement, or no payment at all, to a
defaulter or the estate of a defaulter,
even if the defaulter or the estate of the
defaulter is a net creditor under the
agreement); and
(4) In order to recognize an agreement
as a qualifying master netting agreement
for purposes of this subpart, a FDIC-
supervised institution must comply
with the requirements of § 329.4(a) with
respect to that agreement.
* * * * *
Dated: January 21, 2015.
By order of the Board of Directors of the
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2015–01324 Filed 1–29–15; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Parts 334 and 391
RIN 3064–AE29
Transferred OTS Regulations
Regarding Fair Credit Reporting and
Amendments; Amendment to the
‘‘Creditor’’ Definition in Identity Theft
Red Flags Rule; Removal of FDIC
Regulations Regarding Fair Credit
Reporting Transferred to the
Consumer Financial Protection Bureau
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of proposed rulemaking.
SUMMARY: In this notice of proposed
rulemaking (Proposed Rule), the Federal
Deposit Insurance Corporation (FDIC)
proposes to make several amendments
to its regulations covering ‘‘Fair Credit
Reporting.’’
First, the FDIC proposes to rescind
and remove from the Code of Federal
Regulations 12 CFR part 391, subpart C
(part 391, subpart C), entitled ‘‘Fair
Credit Reporting.’’ This subpart was
included in the regulations that were
transferred to the FDIC from the 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 requirements for State savings
associations in part 391, subpart C are
substantively similar to those in the
VerDate Sep<11>2014 14:35 Jan 29, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\30JAP1.SGM 30JAP1
rljohnson on DSK4SPTVN1PROD with PROPOSALS
5070 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules
1 Dodd-Frank Wall Street Reform and Consumer
Protection Act, Public Law 111–203, 124 Stat. 1376
(2010).
2 Section 312 of the Dodd-Frank Act, codified at
12 U.S.C. 5412.
3 76 FR 39247 (July 6, 2011).
4 76 FR 47652 (Aug. 5, 2011).
FDIC’s 12 CFR part 334 (part 334), also
entitled ‘‘Fair Credit Reporting,’’ and is
applicable for all insured depository
institutions (‘‘IDIs’’) for which the FDIC
has been designated the appropriate
Federal banking agency.
The FDIC proposes to modify the
scope of 12 CFRs 334.1(b), 334.90(a),
and 334.91(a) to include State savings
associations and their subsidiaries to
conform to the scope of the FDIC’s
current supervisory responsibilities as
the appropriate Federal banking agency.
The FDIC also proposes to add new
subsections to define ‘‘State savings
association’’ as having the same
meaning as in section 3(b)(3) of the
Federal Deposit Insurance Act (FDI Act).
Second, the FDIC proposes to amend
the definitional portion of its Identity
Theft Red Flags regulations to be in
conformance with the Red Flag Program
Clarification Act of 2010.
Third, the FDIC proposes to rescind
and remove from the Code of Federal
Regulations those portions of the FDIC’s
‘‘Fair Credit Reporting’’ regulations
where the rule writing authority was
provided to the Consumer Financial
Protection Bureau (‘‘CFPB’’) in the
Dodd-Frank Act. The FDIC will
continue to examine for and enforce
violations of these regulations for all
IDIs for which the FDIC has been
designated the appropriate Federal
banking agency.
Consistent with this part of the
proposal, the FDIC also proposes to
make a technical change in one
provision in its version of the
Interagency Guidelines on Identity Theft
Detection, Prevention, and Mitigation.
DATES: Comments must be received on
or before March 31, 2015.
ADDRESSES: You may submit comments
by any of the following methods:
• FDIC Web site: http://www.fdic.gov/
regulations/laws/federal. Follow
instructions for submitting comments
on the agency Web site.
• FDIC Email: Comments@fdic.gov.
Include RIN #3064–AE29 on the subject
line of the message.
• FDIC Mail: Robert E. Feldman,
Executive Secretary, Attention:
Comments, Federal Deposit Insurance
Corporation, 550 17th Street NW.,
Washington, DC 20429.
• Hand Delivery to FDIC: Comments
may be hand-delivered to the 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.
Please include your name, affiliation,
address, email address, and telephone
number(s) in your comment. Where
appropriate, comments should include a
short Executive Summary consisting of
no more than five single-spaced pages.
All statements received, including
attachments and other supporting
materials, are part of the public record
and are subject to public disclosure.
You should submit only information
that you wish to make publicly
available.
Please note: All comments received will be
posted generally without change to http://
www.fdic.gov/regulations/laws/federal/,
including any personal information
provided. Paper copies of public comments
may be requested from the Public
Information Center by telephone at 1–877–
275–3342 or 1–703–562–2200.
FOR FURTHER INFORMATION CONTACT:
Sandra Barker, Senior Policy Analyst,
Division of Depositor and Consumer
Protection, (202) 898–3615; Jeffrey
Kopchik, Senior Policy Analyst,
Division of Risk Management
Supervision, (703) 254–0459; Richard
M. Schwartz, Counsel, Legal Division,
(202) 898–7424.
SUPPLEMENTARY INFORMATION:
I. Proposed Removal of Transferred
OTS Regulations Regarding Fair Credit
Reporting and Amendments to 12 CFR
Part 334 of FDIC’s Rules and
Regulations
A. Background
The Dodd-Frank Act
The Dodd-Frank Act 1 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, codified at 12
U.S.C. 5411, the powers, duties, and
functions formerly performed by the
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 (FRB), as to savings and loan
holding companies.2 Section 316(b) of
the Dodd-Frank Act, codified at 12
U.S.C. 5414(b), provided 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
provided that if such materials were in
effect on the day before the transfer
date, they continue to be 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,
codified at 12 U.S.C. 5414(c), 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, 2011.3
Although section 312(b)(2)(B)(i)(II) of
the Dodd-Frank Act, codified at 12
U.S.C. 5412(b)(2)(B)(i)(II), 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
FDI Act and other laws as the
‘‘appropriate Federal banking agency’’
or under similar statutory terminology.
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, 12 U.S.C.
1813(q), to add State savings
associations whose deposits are insured
by the FDIC (‘‘State savings
associations’’) to the list of entities for
which the FDIC is designated as 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 here, the FDIC is
authorized to issue, modify and rescind
regulations involving such associations,
as well as for State nonmember banks
and insured branches of foreign banks.
As noted, on June 14, 2011, pursuant
to this authority, the FDIC’s Board of
Directors reissued and redesignated
certain transferring regulations of the
former OTS. These transferred OTS
regulations were published as new FDIC
regulations in the Federal Register on
August 5, 2011.4 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
VerDate Sep<11>2014 14:35 Jan 29, 2015 Jkt 235001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\30JAP1.SGM 30JAP1
rljohnson on DSK4SPTVN1PROD with PROPOSALS
1 Dodd-Frank Wall Street Reform and Consumer
Protection Act, Public Law 111–203, 124 Stat. 1376
(2010).
2 Section 312 of the Dodd-Frank Act, codified at
12 U.S.C. 5412.
3 76 FR 39247 (July 6, 2011).
4 76 FR 47652 (Aug. 5, 2011).
FDIC’s 12 CFR part 334 (part 334), also
entitled ‘‘Fair Credit Reporting,’’ and is
applicable for all insured depository
institutions (‘‘IDIs’’) for which the FDIC
has been designated the appropriate
Federal banking agency.
The FDIC proposes to modify the
scope of 12 CFRs 334.1(b), 334.90(a),
and 334.91(a) to include State savings
associations and their subsidiaries to
conform to the scope of the FDIC’s
current supervisory responsibilities as
the appropriate Federal banking agency.
The FDIC also proposes to add new
subsections to define ‘‘State savings
association’’ as having the same
meaning as in section 3(b)(3) of the
Federal Deposit Insurance Act (FDI Act).
Second, the FDIC proposes to amend
the definitional portion of its Identity
Theft Red Flags regulations to be in
conformance with the Red Flag Program
Clarification Act of 2010.
Third, the FDIC proposes to rescind
and remove from the Code of Federal
Regulations those portions of the FDIC’s
‘‘Fair Credit Reporting’’ regulations
where the rule writing authority was
provided to the Consumer Financial
Protection Bureau (‘‘CFPB’’) in the
Dodd-Frank Act. The FDIC will
continue to examine for and enforce
violations of these regulations for all
IDIs for which the FDIC has been
designated the appropriate Federal
banking agency.
Consistent with this part of the
proposal, the FDIC also proposes to
make a technical change in one
provision in its version of the
Interagency Guidelines on Identity Theft
Detection, Prevention, and Mitigation.
DATES: Comments must be received on
or before March 31, 2015.
ADDRESSES: You may submit comments
by any of the following methods:
• FDIC Web site: http://www.fdic.gov/
regulations/laws/federal. Follow
instructions for submitting comments
on the agency Web site.
• FDIC Email: Comments@fdic.gov.
Include RIN #3064–AE29 on the subject
line of the message.
• FDIC Mail: Robert E. Feldman,
Executive Secretary, Attention:
Comments, Federal Deposit Insurance
Corporation, 550 17th Street NW.,
Washington, DC 20429.
• Hand Delivery to FDIC: Comments
may be hand-delivered to the 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.
Please include your name, affiliation,
address, email address, and telephone
number(s) in your comment. Where
appropriate, comments should include a
short Executive Summary consisting of
no more than five single-spaced pages.
All statements received, including
attachments and other supporting
materials, are part of the public record
and are subject to public disclosure.
You should submit only information
that you wish to make publicly
available.
Please note: All comments received will be
posted generally without change to http://
www.fdic.gov/regulations/laws/federal/,
including any personal information
provided. Paper copies of public comments
may be requested from the Public
Information Center by telephone at 1–877–
275–3342 or 1–703–562–2200.
FOR FURTHER INFORMATION CONTACT:
Sandra Barker, Senior Policy Analyst,
Division of Depositor and Consumer
Protection, (202) 898–3615; Jeffrey
Kopchik, Senior Policy Analyst,
Division of Risk Management
Supervision, (703) 254–0459; Richard
M. Schwartz, Counsel, Legal Division,
(202) 898–7424.
SUPPLEMENTARY INFORMATION:
I. Proposed Removal of Transferred
OTS Regulations Regarding Fair Credit
Reporting and Amendments to 12 CFR
Part 334 of FDIC’s Rules and
Regulations
A. Background
The Dodd-Frank Act
The Dodd-Frank Act 1 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, codified at 12
U.S.C. 5411, the powers, duties, and
functions formerly performed by the
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 (FRB), as to savings and loan
holding companies.2 Section 316(b) of
the Dodd-Frank Act, codified at 12
U.S.C. 5414(b), provided 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
provided that if such materials were in
effect on the day before the transfer
date, they continue to be 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,
codified at 12 U.S.C. 5414(c), 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, 2011.3
Although section 312(b)(2)(B)(i)(II) of
the Dodd-Frank Act, codified at 12
U.S.C. 5412(b)(2)(B)(i)(II), 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
FDI Act and other laws as the
‘‘appropriate Federal banking agency’’
or under similar statutory terminology.
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, 12 U.S.C.
1813(q), to add State savings
associations whose deposits are insured
by the FDIC (‘‘State savings
associations’’) to the list of entities for
which the FDIC is designated as 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 here, the FDIC is
authorized to issue, modify and rescind
regulations involving such associations,
as well as for State nonmember banks
and insured branches of foreign banks.
As noted, on June 14, 2011, pursuant
to this authority, the FDIC’s Board of
Directors reissued and redesignated
certain transferring regulations of the
former OTS. These transferred OTS
regulations were published as new FDIC
regulations in the Federal Register on
August 5, 2011.4 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
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