52827Federal Register / Vol. 84, No. 192 / Thursday, October 3, 2019 / Proposed Rules
1 5 U.S.C. 601 et seq.
2 The SBA defines a small banking organization
as having $600 million or less in assets, where ‘‘a
financial institution’s assets are determined by
averaging the assets reported on its four quarterly
financial statements for the preceding year.’’ See 13
CFR 121.201 (as amended by 84 FR 34261, effective
August 19, 2019). ‘‘SBA counts the receipts,
employees, or other measure of size of the concern
whose size is at issue and all of its domestic and
foreign affiliates.’’ See 13 CFR 121.103. Following
these regulations, the FDIC uses a covered entity’s
affiliated and acquired assets, averaged over the
preceding four quarters, to determine whether the
covered entity is ‘‘small’’ for purposes of the RFA.
3 5 U.S.C. 601.
29, 2019).) The FDIC is supplementing
that notice of proposed rulemaking with
an updated regulatory flexibility
analysis to reflect changes to the Small
Business Administration’s monetary-
based size standards which were
adjusted for inflation as of August 19,
2019. (See 84 FR 34261 (July 18, 2019).)
Updated Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601 et seq., generally requires
an agency, in connection with a
proposed rule, to prepare and make
available for public comment an initial
regulatory flexibility analysis that
describes the impact of a proposed rule
on small entities.1 However, a
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. The Small
Business Administration (SBA) has
defined ‘‘small entities’’ to include
banking organizations with total assets
of less than or equal to $600 million.2
Generally, the FDIC considers a
significant effect to be a quantified effect
in excess of 5 percent of total annual
salaries and benefits per institution, or
2.5 percent of total non-interest
expenses. The FDIC believes that effects
in excess of these thresholds typically
represent significant effects for FDIC-
insured institutions. Certain types of
rules, such as rules of particular
applicability relating to rates or
corporate or financial structures, or
practices relating to such rates or
structures, are expressly excluded from
the definition of ‘‘rule’’ for purposes of
the RFA.3 The proposed rule relates
directly to the rates imposed on IDIs for
deposit insurance and to the deposit
insurance assessment system that
measures risk and determines each
established small bank’s assessment rate
and is, therefore, not subject to the RFA.
Nonetheless, the FDIC is voluntarily
presenting information in this RFA
section.
Based on quarterly regulatory report
data as of March 31, 2019, the FDIC
insures 5,371 depository institutions, of
which 4,004 are defined as small
entities by the terms of the RFA.
Further, 4,001 RFA-defined small, FDIC-
insured institutions have small bank
credits totaling $183.7 million.
As stated previously, the proposed
rule eliminates the possibility that
affected small, FDIC-insured institutions
would begin receiving small bank
credits in the quarter when the reserve
ratio first reaches or exceeds 1.38
percent, but that these credits then
would be suspended if the reserve ratio
subsequently falls below 1.38 percent
(but remains at least 1.35 percent).
Therefore, the economic effect of this
aspect of the proposed rule is a
reduction in the potential future costs
associated with a disruption of the type
just described in the application of
small bank credits by affected small,
FDIC-insured institutions. It is difficult
to accurately estimate the magnitude of
this benefit to affected small, FDIC-
insured institutions, because it depends,
among other things, on future economic
and financial conditions, the
operational and financial management
practices at affected small, FDIC-insured
institutions, and the future levels of the
reserve ratio. However, the FDIC
believes the economic effects of the
proposed rule are likely to be small,
because an estimated 41 percent of the
aggregate amount of small bank credits
would be applied in the first quarter
that the reserve ratio is at least 1.38
percent. Further, the FDIC estimates that
3,851 small, FDIC-insured institutions
(or 96.3 percent) would exhaust their
individual shares of small bank credits
within four assessment periods. Of the
150 small, FDIC-insured institutions
that the FDIC estimates would have
small bank credits that would last more
than four quarters, 139 are expected to
exhaust their individual shares after
being applied for two additional
assessment periods (i.e., after a total of
six assessment periods of application),
and four within four additional
assessment periods of application (i.e.,
after a total of eight assessment periods),
and seven will last more than eight
quarters. Therefore, the dollar amount of
remaining small bank credits declines
substantially after the initial application
of credits in the first quarter of use,
reducing the effects of credit application
being suspended due to a decrease in
the reserve ratio. Additionally, recent
history suggests a generally positive
near-term outlook for the banking sector
(implying lower costs to the DIF),
therefore the probability of suspension
of applying small bank credits is low,
particularly in the near-term quarters.
As stated previously, the proposed
rule would require the FDIC to remit the
outstanding balances of remaining
OTACs in a lump-sum payment, in the
next assessment period in which the
reserve ratio is at least 1.35 percent, at
the same time that the outstanding small
bank credit balances are remitted. As of
March 31, 2019, only two IDIs have
outstanding OTACs, totaling
approximately $300,000. However, both
institutions are subsidiaries of large
banking organizations and therefore do
not qualify as small entities under the
RFA. Therefore, this aspect of the
proposed rule would not affect any
small, FDIC-insured institutions. The
FDIC invites comments on all aspects of
the supporting information provided in
this RFA section. In particular, would
this proposed rule have any significant
effects on small entities that the FDIC
has not identified?
Federal Deposit Insurance Corporation.
Dated at Washington, DC, on September
26, 2019.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2019–21322 Filed 10–2–19; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 390
RIN 3064–AF15
Removal of Transferred OTS
Regulations Regarding Accounting
Requirements for State Savings
Associations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of proposed rulemaking.
SUMMARY: In order to streamline Federal
Deposit Insurance Corporation (FDIC)
regulations, the FDIC proposes to
rescind and remove from the Code of
Federal Regulations rules entitled
Accounting Requirements (part 390,
subpart T) 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). The proposed rule
would rescind and remove part 390,
subpart T (including the Appendix to 12
CFR 390.384) because the financial
statement and disclosure requirements
set forth in part 390, subpart T are
substantially similar to, although more
detailed than, otherwise applicable
financial statement form and content
requirements and disclosure
requirements that a State savings
VerDate Sep<11>2014 17:07 Oct 02, 2019 Jkt 250001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\03OCP1.SGM 03OCP1
1 5 U.S.C. 601 et seq.
2 The SBA defines a small banking organization
as having $600 million or less in assets, where ‘‘a
financial institution’s assets are determined by
averaging the assets reported on its four quarterly
financial statements for the preceding year.’’ See 13
CFR 121.201 (as amended by 84 FR 34261, effective
August 19, 2019). ‘‘SBA counts the receipts,
employees, or other measure of size of the concern
whose size is at issue and all of its domestic and
foreign affiliates.’’ See 13 CFR 121.103. Following
these regulations, the FDIC uses a covered entity’s
affiliated and acquired assets, averaged over the
preceding four quarters, to determine whether the
covered entity is ‘‘small’’ for purposes of the RFA.
3 5 U.S.C. 601.
29, 2019).) The FDIC is supplementing
that notice of proposed rulemaking with
an updated regulatory flexibility
analysis to reflect changes to the Small
Business Administration’s monetary-
based size standards which were
adjusted for inflation as of August 19,
2019. (See 84 FR 34261 (July 18, 2019).)
Updated Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601 et seq., generally requires
an agency, in connection with a
proposed rule, to prepare and make
available for public comment an initial
regulatory flexibility analysis that
describes the impact of a proposed rule
on small entities.1 However, a
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. The Small
Business Administration (SBA) has
defined ‘‘small entities’’ to include
banking organizations with total assets
of less than or equal to $600 million.2
Generally, the FDIC considers a
significant effect to be a quantified effect
in excess of 5 percent of total annual
salaries and benefits per institution, or
2.5 percent of total non-interest
expenses. The FDIC believes that effects
in excess of these thresholds typically
represent significant effects for FDIC-
insured institutions. Certain types of
rules, such as rules of particular
applicability relating to rates or
corporate or financial structures, or
practices relating to such rates or
structures, are expressly excluded from
the definition of ‘‘rule’’ for purposes of
the RFA.3 The proposed rule relates
directly to the rates imposed on IDIs for
deposit insurance and to the deposit
insurance assessment system that
measures risk and determines each
established small bank’s assessment rate
and is, therefore, not subject to the RFA.
Nonetheless, the FDIC is voluntarily
presenting information in this RFA
section.
Based on quarterly regulatory report
data as of March 31, 2019, the FDIC
insures 5,371 depository institutions, of
which 4,004 are defined as small
entities by the terms of the RFA.
Further, 4,001 RFA-defined small, FDIC-
insured institutions have small bank
credits totaling $183.7 million.
As stated previously, the proposed
rule eliminates the possibility that
affected small, FDIC-insured institutions
would begin receiving small bank
credits in the quarter when the reserve
ratio first reaches or exceeds 1.38
percent, but that these credits then
would be suspended if the reserve ratio
subsequently falls below 1.38 percent
(but remains at least 1.35 percent).
Therefore, the economic effect of this
aspect of the proposed rule is a
reduction in the potential future costs
associated with a disruption of the type
just described in the application of
small bank credits by affected small,
FDIC-insured institutions. It is difficult
to accurately estimate the magnitude of
this benefit to affected small, FDIC-
insured institutions, because it depends,
among other things, on future economic
and financial conditions, the
operational and financial management
practices at affected small, FDIC-insured
institutions, and the future levels of the
reserve ratio. However, the FDIC
believes the economic effects of the
proposed rule are likely to be small,
because an estimated 41 percent of the
aggregate amount of small bank credits
would be applied in the first quarter
that the reserve ratio is at least 1.38
percent. Further, the FDIC estimates that
3,851 small, FDIC-insured institutions
(or 96.3 percent) would exhaust their
individual shares of small bank credits
within four assessment periods. Of the
150 small, FDIC-insured institutions
that the FDIC estimates would have
small bank credits that would last more
than four quarters, 139 are expected to
exhaust their individual shares after
being applied for two additional
assessment periods (i.e., after a total of
six assessment periods of application),
and four within four additional
assessment periods of application (i.e.,
after a total of eight assessment periods),
and seven will last more than eight
quarters. Therefore, the dollar amount of
remaining small bank credits declines
substantially after the initial application
of credits in the first quarter of use,
reducing the effects of credit application
being suspended due to a decrease in
the reserve ratio. Additionally, recent
history suggests a generally positive
near-term outlook for the banking sector
(implying lower costs to the DIF),
therefore the probability of suspension
of applying small bank credits is low,
particularly in the near-term quarters.
As stated previously, the proposed
rule would require the FDIC to remit the
outstanding balances of remaining
OTACs in a lump-sum payment, in the
next assessment period in which the
reserve ratio is at least 1.35 percent, at
the same time that the outstanding small
bank credit balances are remitted. As of
March 31, 2019, only two IDIs have
outstanding OTACs, totaling
approximately $300,000. However, both
institutions are subsidiaries of large
banking organizations and therefore do
not qualify as small entities under the
RFA. Therefore, this aspect of the
proposed rule would not affect any
small, FDIC-insured institutions. The
FDIC invites comments on all aspects of
the supporting information provided in
this RFA section. In particular, would
this proposed rule have any significant
effects on small entities that the FDIC
has not identified?
Federal Deposit Insurance Corporation.
Dated at Washington, DC, on September
26, 2019.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2019–21322 Filed 10–2–19; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 390
RIN 3064–AF15
Removal of Transferred OTS
Regulations Regarding Accounting
Requirements for State Savings
Associations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of proposed rulemaking.
SUMMARY: In order to streamline Federal
Deposit Insurance Corporation (FDIC)
regulations, the FDIC proposes to
rescind and remove from the Code of
Federal Regulations rules entitled
Accounting Requirements (part 390,
subpart T) 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). The proposed rule
would rescind and remove part 390,
subpart T (including the Appendix to 12
CFR 390.384) because the financial
statement and disclosure requirements
set forth in part 390, subpart T are
substantially similar to, although more
detailed than, otherwise applicable
financial statement form and content
requirements and disclosure
requirements that a State savings
VerDate Sep<11>2014 17:07 Oct 02, 2019 Jkt 250001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\03OCP1.SGM 03OCP1
52828 Federal Register / Vol. 84, No. 192 / Thursday, October 3, 2019 / Proposed Rules
1 12 U.S.C. 78a et seq.
2 Public Law 111–203, 124 Stat. 1376 (2010).
3 12 U.S.C. 5411.
4 12 U.S.C. 5414(b).
5 12 U.S.C. 5414(c).
6 76 FR 39246 (July 6, 2011).
7 12 U.S.C. 5412(b)(2)(B)(i)(II).
8 12 U.S.C. 1811 et seq.
9 12 U.S.C. 5412(c)(1).
10 12 U.S.C. 1813(q).
11 Section 376 of the Dodd Frank Act amended
section 3(a) of the Exchange Act. See, 15 U.S.C.
78c(a)(34).
12 12 U.S.C. 78a et seq.
13 76 FR 47652 (Aug. 5, 2011).
association must satisfy under federal
banking or securities laws or
regulations.
DATES: Comments must be received on
or before November 4, 2019.
ADDRESSES: You may submit comments
by any of the following methods:
• FDIC Website: https://
www.fdic.gov/regulations/laws/federal/.
Follow instructions for submitting
comments on the agency website.
• Email: Comments@fdic.gov. Include
RIN 3064–AF15 on the subject line of
the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street NW, Washington, DC 20429.
• Hand Delivery 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.
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
Please include your name, affiliation,
address, email address, and telephone
number(s) in your comment. 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 https://www.fdic.gov/regulations/
laws/federal/, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT:
Maureen Loviglio, Senior Staff
Accountant, Division of Risk
Management Supervision, (202) 898–
6777, MLoviglio@FDIC.gov; Suzanne
Dawley, Counsel, Legal Division, (202)
898–6509, sudawley@FDIC.gov.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
The policy objectives of the proposed
rule are twofold. The first is to simplify
the FDIC’s regulations by removing
unnecessary regulations, or realigning
existing regulations in order to improve
the public’s understanding and to
improve the ease of reference. The
second is to promote parity between
State savings associations and State
nonmember banks by making both
classes of institutions subject to the
same accounting requirements. Thus, as
further detailed in this section, the FDIC
proposes to rescind and remove from
the Code of Federal Regulations rules
entitled Accounting Requirements (part
390, subpart T) applicable to State
savings associations. Such requirements
prescribe definitions, public accountant
qualifications, and the form and content
of financial statements pertaining to
certain securities and their related
transaction documents. Transaction
documents may include proxy
statements and offering circulars in
connection with a conversion, any
offering of securities by a State savings
association, and filings by State savings
associations requiring financial
statements under the Securities
Exchange Act of 1934 (Exchange Act).1
The FDIC has determined that the
additional financial disclosure
requirements required by part 390,
subpart T for State savings associations
are substantially similar to, although
more detailed than, otherwise
applicable financial statement form and
content requirements and disclosure
requirements that State nonmember
banks must satisfy under federal
banking or securities laws or
regulations. Therefore, the FDIC is
proposing to remove part 390, subpart T
and apply existing disclosure
requirements, and related form and
content of financial statements
requirements to State savings
associations.
II. Background
A. The Dodd-Frank Act
The Dodd-Frank Act, 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.2 Beginning July 21, 2011,
the transfer date established by section
311 of the Dodd-Frank Act,3 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. Section 316(b)
of the Dodd-Frank Act,4 provides the
manner of treatment for all orders,
resolutions, determinations, regulations,
and advisory materials issued, made,
prescribed, or allowed to become
effective by the OTS. The section
provides that, if such 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.
Pursuant to section 316(c) of the
Dodd-Frank Act,5 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, 2011.6
Although section 312(b)(2)(B)(i)(II) of
the Dodd-Frank Act 7 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 (FDI Act) 8 and other laws
as the ‘‘appropriate Federal banking
agency’’ or under similar statutory
terminology. Section 312(c)(1) of the
Dodd-Frank Act 9 revised the definition
of ‘‘appropriate Federal banking
agency’’ contained in section 3(q) of the
FDI Act,10 to add 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.
Further, section 376 of the Dodd Frank
Act 11 grants rulemaking and
administrative authority to the FDIC
over the Exchange Act 12 filings of State
savings associations.
As noted, on June 14, 2011, operating
pursuant to this authority, the FDIC’s
Board of Directors reissued and re-
designated certain transferring
regulations of the former OTS. These
transferred OTS regulations were
published as new FDIC regulations in
the Federal Register on August 5,
2011.13 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
VerDate Sep<11>2014 17:07 Oct 02, 2019 Jkt 250001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\03OCP1.SGM 03OCP1
1 12 U.S.C. 78a et seq.
2 Public Law 111–203, 124 Stat. 1376 (2010).
3 12 U.S.C. 5411.
4 12 U.S.C. 5414(b).
5 12 U.S.C. 5414(c).
6 76 FR 39246 (July 6, 2011).
7 12 U.S.C. 5412(b)(2)(B)(i)(II).
8 12 U.S.C. 1811 et seq.
9 12 U.S.C. 5412(c)(1).
10 12 U.S.C. 1813(q).
11 Section 376 of the Dodd Frank Act amended
section 3(a) of the Exchange Act. See, 15 U.S.C.
78c(a)(34).
12 12 U.S.C. 78a et seq.
13 76 FR 47652 (Aug. 5, 2011).
association must satisfy under federal
banking or securities laws or
regulations.
DATES: Comments must be received on
or before November 4, 2019.
ADDRESSES: You may submit comments
by any of the following methods:
• FDIC Website: https://
www.fdic.gov/regulations/laws/federal/.
Follow instructions for submitting
comments on the agency website.
• Email: Comments@fdic.gov. Include
RIN 3064–AF15 on the subject line of
the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street NW, Washington, DC 20429.
• Hand Delivery 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.
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
Please include your name, affiliation,
address, email address, and telephone
number(s) in your comment. 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 https://www.fdic.gov/regulations/
laws/federal/, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT:
Maureen Loviglio, Senior Staff
Accountant, Division of Risk
Management Supervision, (202) 898–
6777, MLoviglio@FDIC.gov; Suzanne
Dawley, Counsel, Legal Division, (202)
898–6509, sudawley@FDIC.gov.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
The policy objectives of the proposed
rule are twofold. The first is to simplify
the FDIC’s regulations by removing
unnecessary regulations, or realigning
existing regulations in order to improve
the public’s understanding and to
improve the ease of reference. The
second is to promote parity between
State savings associations and State
nonmember banks by making both
classes of institutions subject to the
same accounting requirements. Thus, as
further detailed in this section, the FDIC
proposes to rescind and remove from
the Code of Federal Regulations rules
entitled Accounting Requirements (part
390, subpart T) applicable to State
savings associations. Such requirements
prescribe definitions, public accountant
qualifications, and the form and content
of financial statements pertaining to
certain securities and their related
transaction documents. Transaction
documents may include proxy
statements and offering circulars in
connection with a conversion, any
offering of securities by a State savings
association, and filings by State savings
associations requiring financial
statements under the Securities
Exchange Act of 1934 (Exchange Act).1
The FDIC has determined that the
additional financial disclosure
requirements required by part 390,
subpart T for State savings associations
are substantially similar to, although
more detailed than, otherwise
applicable financial statement form and
content requirements and disclosure
requirements that State nonmember
banks must satisfy under federal
banking or securities laws or
regulations. Therefore, the FDIC is
proposing to remove part 390, subpart T
and apply existing disclosure
requirements, and related form and
content of financial statements
requirements to State savings
associations.
II. Background
A. The Dodd-Frank Act
The Dodd-Frank Act, 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.2 Beginning July 21, 2011,
the transfer date established by section
311 of the Dodd-Frank Act,3 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. Section 316(b)
of the Dodd-Frank Act,4 provides the
manner of treatment for all orders,
resolutions, determinations, regulations,
and advisory materials issued, made,
prescribed, or allowed to become
effective by the OTS. The section
provides that, if such 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.
Pursuant to section 316(c) of the
Dodd-Frank Act,5 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, 2011.6
Although section 312(b)(2)(B)(i)(II) of
the Dodd-Frank Act 7 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 (FDI Act) 8 and other laws
as the ‘‘appropriate Federal banking
agency’’ or under similar statutory
terminology. Section 312(c)(1) of the
Dodd-Frank Act 9 revised the definition
of ‘‘appropriate Federal banking
agency’’ contained in section 3(q) of the
FDI Act,10 to add 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.
Further, section 376 of the Dodd Frank
Act 11 grants rulemaking and
administrative authority to the FDIC
over the Exchange Act 12 filings of State
savings associations.
As noted, on June 14, 2011, operating
pursuant to this authority, the FDIC’s
Board of Directors reissued and re-
designated certain transferring
regulations of the former OTS. These
transferred OTS regulations were
published as new FDIC regulations in
the Federal Register on August 5,
2011.13 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
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