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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Parts 338 and 390
RIN 3064AF35

Removal of Transferred Office of Thrift Supervision OTS Regulations Regarding Nondiscrimination Requirements Federal Deposit Insurance Corporation FDIC.
ACTION: Final rule.
AGENCY:

The Federal Deposit Insurance Corporation FDIC is rescinding and removing its regulation titled Nondiscrimination Requirements and amending its regulation titled Fair Housing to make it applicable to State savings associations. These actions will streamline the FDICs rules by eliminating unnecessary, inconsistent, and duplicative regulations, and ensure insured State nonmember banks and State savings associations generally will be subject to the same nondiscrimination requirements.
DATES: The final rule is effective on March 5, 2021. Compliance with 12 CFR
338.4b regarding displaying the current address of the FDICs Consumer Response Center on an Equal Housing Lender poster is mandatory on February 3, 2022.
FOR FURTHER INFORMATION CONTACT:
Navid Choudhury, Counsel, Legal Division, 202 8986526, nchoudhury@
fdic.gov; Jamie Goodson, Senior Policy Analyst, 202 8986685, jagoodson@
fdic.gov; Ernestine Ward, Policy Analyst, 202 8983812, erward@
fdic.gov; and Evelyn Manley, Fair Lending Specialist, 202 8983775, emanley@fdic.gov, Division of Depositor and Consumer Protection.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

I. Background Title III of 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,2 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 316b of the Dodd-Frank Act 3 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. Section 316b states that if the 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 316c 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 which would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDICs 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
Although section 312b2BiII of the Dodd-Frank Act 6 granted the OCC
rulemaking authority relating to both State and Federal savings associations, the Dodd-Frank Act did not generally affect the FDICs existing authority to issue regulations under the Federal Deposit Insurance Act FDI Act and other laws as the appropriate Federal banking agency or under similar statutory terminology. Section 312c of the Dodd-Frank Act amended the definition of appropriate Federal banking agency contained in section 3q of the FDI Act 7 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, except in limited circumstances in which certain rulemaking authority is specifically given to another agency, 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 generally authorized to issue, modify and rescind regulations involving such associations, insured State nonmember 3 Codified
1 Dodd-Frank
Wall Street Reform and Consumer Protection Act, Public Law 111203, 124 Stat. 1376
2010.
2 Codified at 12 U.S.C. 5411.

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at 12 U.S.C. 5414b.
at 12 U.S.C. 5414c.
5 76 FR 39247 July 6, 2011.
6 Codified at 12 U.S.C. 5412b2BiII.
7 12 U.S.C. 1813q.
4 Codified
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banks, and insured branches of foreign banks.
As noted, on June 14, 2011, operating pursuant to this authority, the FDICs Board of Directors reissued and redesignated certain transferred OTS
regulations. These transferred OTS
regulations were published as new FDIC
regulations in the Federal Register on August 5, 2011.8 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS regulations and might later recommend incorporating them into other FDIC regulations, amending them, or rescinding them, as appropriate.
One of the OTS rules transferred to the FDIC requires State savings associations to not discriminate with respect to lending, employment, and other services provided. The OTS rule, formerly found at 12 CFR part 528 part 528, was transferred to the FDIC with only technical changes and is now found in the FDICs rules at part 390, subpart G, entitled Nondiscrimination Requirements.
II. The Proposal A. Removal of Part 390, Subpart G, Nondiscrimination Requirements On September 25, 2020, the FDIC
published a notice of proposed rulemaking NPR or proposal regarding the removal of part 390, subpart G 85 FR 60389. Although few provisions of part 390, subpart G, have a direct counterpart within the FDICs regulations, the provisions are largely duplicative of regulations implementing Federal laws Equal Credit Opportunity Act ECOA, Fair Housing Act FHA, Equal Employment Opportunity Act EEOA, and other laws concerning nondiscrimination in lending, employment, and services implemented by other agencies.
Regarding the functions of the former OTS that were transferred to the FDIC, section 316b3 of the Dodd-Frank Act 9 provides that the former OTS
regulations will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law. After careful review of part 390, subpart G, the FDIC, as the appropriate Federal banking agency for State savings associations, proposed to rescind and remove part 390, subpart G, in its entirety, because, as discussed in the NPR, it is duplicative, unnecessary, and burdensome to require State savings 8 76
9 12

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FR 47652 Aug. 5, 2011.
U.S.C. 5414b3.

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