Banking and Finance Law Daily FDIC amends rules of practice and procedure
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Monday, January 11, 2021

FDIC amends rules of practice and procedure

By Colleen M. Svelnis, J.D.

The FDIC has amended certain rules clarifying which type of officer will perform certain adjudicative functions, along with other technical edits.

The Federal Deposit Insurance Corporation has issued a final rule amending its rules of practice and procedure to codify the agency’s longstanding practice of having certain adjudicative functions performed by an inferior officer of the United States appointed by the FDIC’s Board of Directors. The agency also made 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of practice and procedure to update references to certain positions within the FDIC Legal Division whose titles are outdated. The final rule is effective upon publication in the Federal Register on Jan. 12, 2021.

Following clarifications on the role of administrative law judges in the 2018 Supreme Court decision in Lucia v. SEC, the FDIC is clarifying that these adjudicative functions are performed by an Administrative Officer that is duly appointed by the Board. To this end, the FDIC is amending 12 CFR Part 308 to clarify and to expressly provide that certain 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.

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 FDIC’s Executive Secretary or Assistant Executive Secretary, will be performed by an "Administrative Officer" or "Assistant Administrative Officer" who has been duly appointed by the FDIC’s Board. The notice substitutes 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.

Additionally, the FDIC is making technical changes to part 308 to update outdated references to certain position titles. These amendments do not constitute substantive changes, but merely conform the titles in the regulation to the current titles of these positions.

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