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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations
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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and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.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 316c of the Dodd-Frank Act,4 on June 14, 2011, the FDICs Board of Directors Board 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, 2011.5
Although section 312b2BiII of the Dodd-Frank Act 6 granted the OCC
rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDICs existing authority to issue regulations under the Federal Deposit Insurance Act FDI Act 7 and other laws as the appropriate Federal banking agency or under similar statutory terminology. Section 312c1 of the Dodd-Frank Act 8 revised the definition of appropriate Federal banking agency contained in section 3q of the FDI Act,9 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 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 Statelicensed branches of foreign banks.
As noted above, on June 14, 2011, operating pursuant to this authority, the Board issued a list of regulations of the former OTS that the FDIC would enforce with respect to State savings associations. On that same date, the Board reissued and redesignated certain regulations transferred from the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.10 When the FDIC republished the transferred OTS regulations as new FDIC regulations, it specifically noted 4 Codified
at 12 U.S.C. 5414c.
FR 39246 July 6, 2011.
6 Codified at 12 U.S.C. 5412b2BiII.
7 12 U.S.C. 1811 et seq.
8 Codified at 12 U.S.C. 5412c1.
9 12 U.S.C. 1813q.
10 76 FR 47652 Aug. 5, 2011.
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that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC regulations, amending them, or rescinding them, as appropriate.11
B. Transferred OTS Regulations Transferred to the FDICs Part 390, Subpart Y
A subset of the regulations transferred to the FDIC from the OTS concerns prompt corrective action provisions applicable to State savings associations.
The OTS regulations, formerly found at 12 CFR part 565, 565.7, 565.8, 565.9
and 565.10, were transferred to the FDIC
with only nomenclature changes and now comprise part 390, subpart Y. Each provision of part 390, subpart Y, is discussed in Part III of this SUPPLEMENTARY INFORMATION section, below. The FDIC has conducted a careful review and comparison of part 390, subpart Y. As discussed in Part III
of this SUPPLEMENTARY INFORMATION
section, the FDIC is rescinding part 390, subpart Y, because the FDIC considers the provisions related to State savings associations contained in part 390, subpart Y, substantially similar to similar regulations related to state nonmember banks. The FDIC will combine the regulations to make clear the same procedures apply to all FDIC-supervised institutions.
III. Proposed Rule On September 28, 2020, the FDIC
published a notice of proposed rulemaking NPR regarding the removal of part 390, subpart Y formerly OTS 12
CFR part 565, 565.7, 565.8, 565.9 and 565.10, which addressed prompt corrective action provisions applicable to State savings associations.12 The NPR
proposed removing part 390, subpart Y, from the Code of Federal Regulations, because, after careful review, the FDIC
concluded that the retention of part 390, subpart Y, is unnecessary and that rescission of subpart Y in its entirety would streamline the FDIC rules and regulations. The regulations related to State savings associations will be incorporated into part 308, subpart Q as described below. Part 390, subpart Y, also references savings and loan holding companies. When the regulation was transferred from the OTS, the references to any company that controls the State savings association were not deleted with the other technical amendments.
The FDIC is not the appropriate successor agency for supervision of savings and loan holding companies.

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76 FR 47653.
FR 60738 Sept. 28, 2020.

Under the Dodd-Frank Act, supervision of savings and loan holding companies was transferred to the Federal Reserve Board.13 The provisions in the FDIC
regulations relating to any company that controls the State savings association will therefore be set aside and not incorporated into the existing FDIC regulations at part 308, subpart Q, addressing FDIC-supervised institutions.
Consistent with its legal authority to issue and modify regulations as the appropriate Federal banking agency under section 3q of the Federal Deposit Insurance Act, the FDIC also proposed to amend and revise provisions of part 308, subpart Q, to clarify and state explicitly the regulations apply to all FDIC-supervised institutions.
A. Comparison of Other Applicable Statutes and Regulations With the Transferred OTS Regulations To Be Rescinded 12 CFR 390.456Directives To Take Prompt Corrective Action Section 390.456 describes the administrative procedures for the FDIC
to issue a directive to take prompt corrective action against a State savings association. These administrative procedures were initially found at 12
CFR 565.7 and are equivalent to the administrative procedures relating to FDIC-supervised banks found at 12 CFR
308.201.
The FDIC proposed that 390.456 be rescinded in its entirety. The amendments to subpart Q will clarify in a single location that the regulations apply to all FDIC-supervised institutions. Therefore, it is not necessary to have a regulation specifically applicable to State savings associations.
12 CFR 390.457Procedures for Reclassifying a State Savings Association Based on Criteria Other Than Capital Section 390.457 describes the administrative procedures to reclassify a State savings association based on criteria other than capital. This section describes how the FDIC may consider other unsafe or unsound practices to lower a State saving associations capital category under part 324. The section also details the procedures for notifying the State saving association and contesting the determination. These administrative procedures were initially found at 12 CFR 565.8 and were recently modified to account for
11 See 12 85

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U.S.C. 5412b1.

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