2011-26635. Disclosure of Information; Privacy Act Regulations; Notice and Amendments

AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Final rule.

SUMMARY:

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), abolished the Office of Thrift Supervision (OTS) and, as of July 21, 2011, the statutorily prescribed transfer date (Transfer Date), the functions and regulations of the OTS relating to savings and loan holding companies, Federal savings associations, and State savings associations to the Board of Governors of the Federal Reserve System (FRB), the Office of the Comptroller of the Currency (OCC), and the FDIC, respectively. The Board of Directors is finalizing an interim rule that confirmed that, effective on the Transfer Date, the OTS Freedom of Information Act (FOIA) and Privacy Act (PA) regulations will not be enforced by the FDIC and that, instead, all FOIA and PA issues will be addressed under the FDIC's regulations involving disclosure of information and the PA, as amended.

DATES:

Effective Date: The effective date of the final rule is November 14, 2011.

FOR FURTHER INFORMATION CONTACT:

Ann Johnson Taylor, Counsel, Legal Division, [phone] or [e-mail]; Rodney D. Ray, Counsel, Legal Division, [phone] or [e-mail]; or Martin P. Thompson, Senior Review Examiner, Division of Risk Management Supervision, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

The Act, signed into law on July 21, 2010, substantially reorganized the regulation of savings associations and their holding companies. Beginning July 21, 2011, the Transfer Date established in Dodd-Frank, functions formerly performed by the OTS were divided among the FRB, OCC, and FDIC. Section 316(b) of the Act provides that all orders, resolutions, determinations, and regulations issued, made, prescribed, or allowed to become effective by the OTS that were in effect on the day before the Transfer Date continue in effect and are enforceable by the appropriate successor Federal banking agency until modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.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 323(b) of the Act also provides for the transfer on the Transfer Date of OTS property, including books, accounts, records, reports, files, memoranda, paper, reports of examination, work papers, and correspondence relating to such reports, to the respective agencies, that were used by the OTS on the day before the Transfer Date to support OTS functions.

Section 316(c) of the Act further provides for the identification of OTS regulations relating to the supervision of State savings associations to be transferred to the FDIC. On July 6, 2011, the OCC and FDIC published a Joint Notice (Notice) in the Federal Register identifying OTS regulations that will be continued and enforced by each agency. In the Notice, the FDIC indicated that it did not intend to continue or enforce existing OTS regulations regarding the Freedom of Information Act or Privacy Act.

II. The Final Rule

On June 21, 2011, the FDIC published for comment an interim rule providing the public with notice that the FDIC would apply the FDIC's existing FOIA and PA regulations, as of the Transfer Date, to all records or other matters transferred from the OTS to the FDIC. The interim rule also included certain technical amendments to the FDIC's existing regulations and substituted the Bureau of Consumer Financial Protection for the OTS as a Federal financial institution supervisory agency, for purposes of § 309.6, to which exempt records could be disclosed.^[1]

Although the interim rule became effective for all existing and future FOIA and PA issues involving state savings associations as of the Transfer Date, the interim rule prescribed a 30-day comment period. The comment period ended on August 22, 2011 and no comments were received.

The final rule corrects an erroneous facsimile number contained in § 309.5(b)(1)(ii) of the interim rule.

III. Regulatory Analysis and Procedure

A. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., (RFA) applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed in the interim rule, since the FDIC determined that good cause existed to waive the general notice and comment requirements of the APA, the requirement to prepare a final regulatory flexibility analysis, as described at 5 U.S.C. 604 of the RFA does not apply to this final rule.

B. Small Business Regulatory Enforcement Fairness Act

The Office of Management and Budget (OMB) has determined that the final rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA) (5 U.S.C. 801, et seq.). As required by SBREFA, the FDIC will file the appropriate reports with Congress and the General Accounting Office so that the final rule may be reviewed.

C. Paperwork Reduction Act

No collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) are contained in the final rule.

D. Plain Language

Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has sought to present the final rule in a simple and straightforward manner and received no comments on the interim rule.

E. Riegle Community Development and Regulatory Improvement Act

The final rule does not impose any new reporting or disclosure requirements on insured depository institutions under the Riegle Community Development and Regulatory Improvement Act.

List of Subjects in 12 CFR Parts 309 and 310

• Banks, banking
• Freedom of information
• Privacy
• Savings associations

For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation adopts the interim final rule published June 21, 2011, at 76 FR 35963, as final with the following change:

PART 309—DISCLOSURE OF INFORMATION

1. The authority citation for part 309 continues to read as follows:

Authority: 5 U.S.C. 552; 12 U.S.C. 1819 “Seventh” and “Tenth.”

§ 309.5

[Amended]

2. In § 309.5, in paragraph (b)(1)(ii), remove the fax number “[phone]: and add in its place the fax number “[phone]”

By order of the Board of Directors.

Dated at Washington, DC this 11th day of October 2011.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

Footnotes

1.  76 FR 35963 (June 21, 2011).