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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.
Signed in Washington, DC, on December 21, 2020.
Treena V. Garrett, Federal Register Liaison Officer, U.S.
Department of Energy.
FR Doc. 202028599 Filed 11121; 8:45 am BILLING CODE 645001P

FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 308
RIN 3064AF69

FDIC Rules of Practice and Procedure;
Technical Revisions Federal Deposit Insurance Corporation.
ACTION: Final rule.
AGENCY:

The Federal Deposit Insurance Corporation FDIC is amending its rules of practice and procedure to codify the agencys longstanding practice of having certain adjudicative functions performed by an inferior officer of the United States appointed by the FDICs Board of Directors Board. Additionally, the FDIC is making other technical edits to its rules of practice and procedure to update references to certain positions within the FDIC Legal Division whose titles are outdated.
DATES: The final rule is effective on January 12, 2021.
FOR FURTHER INFORMATION CONTACT:
Romulus A. Johnson, Counsel, Legal Division, 202 8983820, romjohnson@
fdic.gov; Josephine M. Bahn, Senior Attorney, Legal Division, 202 898
6576, jbahn@fdic.gov; or Nicholas S.
Kazmerski, Counsel, Legal Division, 202 8983524, nkazmerski@fdic.gov.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

I. Background Administrative enforcement proceedings brought by the FDIC are subject to the Administrative Procedure Act APA, 5 U.S.C. 551 et seq., and the FDIC Rules of Practice and Procedure, 12 CFR part 308. Under part 308, evidentiary hearings and related proceedings are generally presided over by an Administrative Law Judge ALJ.
See generally, 5 U.S.C. 556; 12 CFR
308.5, and 308.3. Additionally, part 308
provides that certain procedural and adjudicative functions are reserved to
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the Executive Secretary of the FDIC.
These functions include but are not limited to: 1 Serving in place of an ALJ
when no ALJ has jurisdiction over an administrative proceeding; 2 issuing rulings in certain administrative proceedings; and 3 serving as the custodian of records for administrative proceedings. See generally, 12 CFR
308.102b and 308.105.
On June 21, 2018, the U.S. Supreme Court held that the ALJs employed by the U.S. Securities and Exchange Commission SEC were inferior officers of the United States under the Appointments Clause of the United States Constitution because these ALJs hold a continuing office established by law, and they exercise significant discretion in connection with certain important functions when presiding over administrative hearings. Lucia v.
SEC, 138 S. Ct. 2044, 20532054 2018
Lucia. As inferior officers, the Supreme Court held that the SECs ALJs are subject to the Appointments Clause and as such, can only be appointed by the President, Courts of Law or Heads of Departments. See, Lucia, 138 S. Ct. 2044, 2046.
Although the Lucia decision did not directly affect the FDIC or the ALJs for the FDIC, the Board nevertheless elected to formally appoint the ALJs that preside over FDIC enforcement proceedings. The ALJs who were serving at the time of the Lucia decision were appointed by the Board on July 19, 2018. See FDIC Board Resolution 085152. Since that time, the Board has appointed all ALJs that preside over FDIC enforcement proceedings.
Since the Lucia decision, the FDIC has received questions regarding whether the FDICs Executive Secretary was also appointed in a manner consistent with the Supreme Courts ruling in Lucia. In fact, the Board duly appointed the FDICs current Executive Secretary as an inferior officer on June 22, 1997, pursuant to Article II of the United States Constitution and 12 U.S.C.
1819a Fifth allowing the FDIC to appoint by its Board of Directors such officers and employees as are not otherwise provided for in this chapter.
Nonetheless, in the interest of transparency and to assuage any outstanding concerns about this issue, we are amending part 308 to clarify and to expressly provide that such adjudicative functions will continue to be performed by an inferior officer of the United States Administrative Officer that has been duly appointed by the Board.
In addition to clarifying that these adjudicative functions are performed by an Administrative Officer that is duly
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appointed by the Board, the FDIC is making technical changes to part 308 to update outdated references to certain position titles.
II. Exemption From Public Notice and Comment Section 553 of the Administrative Procedure Act APA 5 U.S.C. 553 sets forth requirements for providing the general public notice of, and the opportunity to comment on, proposed agency rules. However, unless notice or hearing is required by statute, those requirements do not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. See 5 U.S.C.
553bA.
The FDIC is updating part 308, its rules of practice and procedure, to substitute the Administrative Officer for the Executive Secretary in multiple places. Since the changes relate to agency organization, procedure, or practice, the rules are being published in final form without public notice and comment.
III. Regulatory Analysis A. Congressional Review Act Under the Congressional Review Act CRA, before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containingi a copy of the rule; ii a concise general statement relating to the rule, including whether it is a major rule; and iii the proposed effective date of the rule. 1 The CRA
further defines the term rule as having the meaning given such term in section 551, except that such term does not includeA any rule of particular applicability . . . ; B any rule relating to agency management or personnel; or C any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. 2
The FDIC is updating part 308, its rules of practice and procedure, to clarify that certain adjudicative functions, specified in part 308 as being performed by the FDICs Executive Secretary or Assistant Executive Secretary, will be performed by an Administrative Officer or Assistant Administrative Officer who has been duly appointed by the Board.
Additionally, the FDIC is updating outdated references to certain position titles in part 308. These amendments do not constitute substantive changes, but merely conform the titles in the 1
2

5 U.S.C. 801a1A.
5 U.S.C. 8043.

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