This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

5904 

Vol. 74, No. 21 

Tuesday, February 3, 2009 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 337 

RIN 3064–AD41 

Interest Rate Restrictions on 

Institutions That Are Less Than 

Well-Capitalized 

AGENCY: Federal Deposit Insurance 

Corporation (FDIC). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The FDIC is proposing to 

amend its regulations relating to the 

interest rate restrictions that apply to 

insured depository institutions that are 

not well capitalized. Under the 

proposed rule, such insured depository 

institutions generally would be 

permitted to offer the ‘‘national rate’’ 

plus 75 basis points. The ‘‘national rate’’ 

would be defined, for deposits of similar 

size and maturity, as an average of rates 

paid by all insured depository 

institutions and branches for which data 

are available. For those cases in which 

the ‘‘national rate’’ does not represent 

the prevailing rate in a particular 

market, as indicated by available 

evidence, the depository institution 

would be permitted to offer the 

prevailing rate plus 75 basis points. 

The purpose of this proposed rule is 

to clarify the interest rate restrictions for 

certain insured depository institutions 

and examiners. 

DATES: Written comments must be 

received by the FDIC no later than April 

6, 2009. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Agency Web Site: http:// 

www.fdic.gov/regulations/laws/federal. 

Follow the instructions for submitting 

comments. 

• E-mail: Comments@FDIC.gov. 

Include ‘‘Part 337—Interest Rate 

Restrictions’’ in the subject line of the 

message. 

• Mail: Robert E. Feldman, Executive 

Secretary, Attention: Comments, Federal 

Deposit Insurance Corporation, 550 17th 

Street, NW., Washington, DC 20429. 

• Hand Delivery/Courier: Comments 

may be hand-delivered to the guard 

station located at the rear of the FDIC’s 

550 17th Street building (accessible 

from F Street) on business days between 

7 a.m. and 5 p.m. 

Public Inspection: Submissions must 

include the agency name (FDIC) and 

also must use the title ‘‘Part 337— 

Interest Rate Restrictions.’’ All 

comments generally will be posted 

without change (including any personal 

information) on the agency’s Web Site 

at: http://www.fdic.gov/regulations/ 

laws/federal/propose.html. Paper copies 

of public comments may be ordered 

from the Public Information Center by 

telephone at (877) 275–3342 or (703) 

562–2200. 

FOR FURTHER INFORMATION CONTACT: 

Louis J. Bervid, Senior Examination 

Specialist, Division of Supervision and 

Consumer Protection, (202) 898–6896 or 

lbervid@fdic.gov; or Christopher L. 

Hencke, Counsel, Legal Division, (202) 

898–8839 or chencke@fdic.gov, Federal 

Deposit Insurance Corporation, 550 17th 

Street, NW., Washington, DC 20429. 

SUPPLEMENTARY INFORMATION: 

I. Section 29 of the Act 

Section 29 of the Federal Deposit 

Insurance Act (‘‘FDI Act’’) provides that 

an insured depository institution that is 

not well capitalized may not accept 

deposits by or through deposit brokers. 

See 12 U.S.C. 1831f(a). Notwithstanding 

this prohibition, section 29 also 

provides that an adequately capitalized 

institution may accept brokered 

deposits if it obtains a waiver from the 

FDIC. See 12 U.S.C. 1831f(c). In 

contrast, an undercapitalized institution 

may not accept brokered deposits under 

any circumstances. See 12 U.S.C. 

1831f(a) and (c). 

The purpose of section 29 generally is 

to limit the acceptance or solicitation of 

deposits by insured depository 

institutions that are not well capitalized. 

This purpose is promoted through two 

means: (1) The prohibition against the 

acceptance of brokered deposits by 

depository institutions that are less than 

well capitalized (as described above); 

and (2) certain restrictions on the 

interest rates that may be paid by such 

institutions. In enacting section 29, 

Congress added the interest rate 

restrictions to prevent such institutions 

from avoiding the prohibition against 

the acceptance of brokered deposits by 

soliciting deposits internally through 

‘‘money desk operations.’’ Congress 

viewed the gathering of deposits by 

weaker institutions through either 

brokers or ‘‘money desk operations’’ as 

potentially an unsafe or unsound 

practice. See H.R. Conf. Rep. No. 101– 

222 at 402–403 (1989), reprinted in 1989 

U.S.C.C.A.N. 432, 441–42. 

Section 29 imposes interest rate 

restrictions on different categories of 

insured depository institutions that are 

less than well capitalized: (1) 

Adequately capitalized institutions with 

waivers to accept brokered deposits; (2) 

adequately capitalized institutions 

without waivers to accept brokered 

deposits; and (3) undercapitalized 

institutions. The statutory restrictions 

for each category are described in detail 

below. 

Adequately capitalized institutions 

with waivers to accept brokered 

deposits. Institutions in this category 

may not pay a rate of interest on 

deposits that ‘‘significantly exceeds’’ the 

following: ‘‘(1) The rate paid on deposits 

of similar maturity in such institution’s 

normal market area for deposits 

accepted in the institution’s normal 

market area; or (2) the national rate paid 

on deposits of comparable maturity, as 

established by the [FDIC], for deposits 

accepted outside the institution’s 

normal market area.’’ 12 U.S.C. 1831f(e). 

In this category, an institution must 

adhere to (or not ‘‘significantly exceed’’) 

the prevailing rates in its own ‘‘normal 

market area’’ only with respect to 

deposits accepted from that market area. 

For other deposits, the institution is 

permitted to offer (but not ‘‘significantly 

exceed’’) the ‘‘national rate’’ established 

by the FDIC. Thus, an institution in this 

category is not permitted to outbid local 

institutions for local deposits but is 

permitted to compete with non-local 

institutions for non-local deposits. 

Adequately capitalized institutions 

without waivers to accept brokered 

deposits. In this category, institutions 

may not offer rates that ‘‘are 

significantly higher than the prevailing 

rates of interest on deposits offered by 

other insured depository institutions in 

such depository institution’s normal 

market area.’’ 12 U.S.C. 1831f(g)(3). In 

other words, the institution must adhere 


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1Prior to 1992, the term ‘‘normal market area’’ 

was defined in a footnote in section 337.6. Under 

this definition, a depository institution’s ‘‘normal 

market area’’ depended upon the institution’s 

advertising practices in soliciting deposits. See 12 

CFR 337.6(a)(1)(ii) (1992) (footnote 11). 

to the prevailing rates in its own 

‘‘normal market area’’ for all deposits 

(whether local or non-local). Thus, the 

institution will be unable to compete 

with non-local institutions for non-local 

deposits unless the rates in the 

institution’s own ‘‘normal market area’’ 

are competitive with the non-local rates. 

For institutions in this category, the 

statute restricts interest rates in an 

indirect manner. Rather than simply 

setting forth an interest rate restriction 

for adequately capitalized institutions 

without waivers, the statute defines the 

term ‘‘deposit broker’’ to include ‘‘any 

insured depository institution that is not 

well capitalized * * * which engages, 

directly or indirectly, in the solicitation 

of deposits by offering rates of interest 

which are significantly higher than the 

prevailing rates of interest on deposits 

offered by other insured depository 

institutions in such depository 

institution’s normal market area.’’ 12 

U.S.C. 1831f(g)(3). In other words, the 

depository institution itself is a ‘‘deposit 

broker’’ if it offers rates significantly 

higher than the prevailing rates in its 

own ‘‘normal market area.’’ Without a 

waiver, the institution cannot accept 

deposits from a ‘‘deposit broker.’’ Thus, 

the institution cannot accept these 

deposits from itself. In this indirect 

manner, the statute prohibits 

institutions in this category from 

offering rates significantly higher than 

the prevailing rates in the institution’s 

‘‘normal market area.’’ 

Undercapitalized institutions. In this 

category, institutions may not offer rates 

‘‘that are significantly higher than the 

prevailing rates of interest on insured 

deposits (1) in such institution’s normal 

market areas; or (2) in the market area 

in which such deposits would otherwise 

be accepted.’’ 12 U.S.C. 1831f(h). Thus, 

for deposits in its own ‘‘normal market 

area,’’ an undercapitalized institution 

must offer rates that are not 

‘‘significantly higher’’ than the local 

rates. For non-local deposits, the 

institution must offer rates that are not 

‘‘significantly higher’’ than either of the 

following: (1) The institution’s own 

local rates; or (2) the applicable nonlocal rates. In other words, the 

institution must adhere to the prevailing 

rates in its own ‘‘normal market area’’ 

for all deposits (whether local or nonlocal) and also must adhere to the 

prevailing rates in the non-local area for 

any non-local deposits. Thus, the 

institution will be unable to outbid nonlocal institutions for non-local deposits 

even if the non-local rates are lower 

than the rates in the institution’s own 

‘‘normal market area.’’ 

As described above, section 29 of the 

FDI Act imposes interest rate 

restrictions based on a depository 

institution’s capital category (and 

whether the depository institution has 

obtained a waiver to accept brokered 

deposits). Also, section 29 authorizes 

the FDIC to ‘‘impose, by regulation or 

order, such additional restrictions on 

the acceptance of brokered deposits by 

any institution as the [FDIC] may 

determine to be appropriate.’’ 12 U.S.C. 

1831f(f). This broad grant of authority 

does not refer to capital categories. 

Thus, the FDIC could adopt additional 

restrictions on the acceptance of 

brokered deposits without regard to 

capital categories. To date, the FDIC has 

not adopted any such additional 

restrictions, but the FDIC is interested in 

obtaining comments on whether the 

adoption of such restrictions would be 

appropriate. 

II. Section 337.6 of the FDIC’s 

Regulations 

The FDIC has implemented section 29 

of the FDI Act through section 337.6 of 

the FDIC’s regulations. See 12 CFR 

337.6. Section 337.6 adds several 

significant definitions to the statutory 

rules, including the following: (1) The 

‘‘national rate’’ is defined; (2) the terms 

‘‘significantly exceeds’’ and 

‘‘significantly higher’’ are defined; and 

(3) the term ‘‘market area’’ is defined. 

Each of these definitions, and the 

reasoning behind the definitions, are 

discussed in greater detail below. 

The ‘‘National Rate.’’ In section 337.6, 

the ‘‘national rate’’ is defined as follows: 

‘‘(1) 120 percent of the current yield on 

similar maturity U.S. Treasury 

obligations; or (2) In the case of any 

deposit at least half of which is 

uninsured, 130 percent of such 

applicable yield.’’ 12 CFR 

337.6(b)(2)(ii)(B). In defining the 

‘‘national rate’’ in this manner, the FDIC 

relied upon the fact that such a 

definition is ‘‘objective and simple to 

administer.’’ 57 FR 23933, 23938 (June 

5, 1992). By using percentages (120 

percent or 130 percent of the yield on 

U.S. Treasury obligations) instead of a 

fixed number of basis points, the FDIC 

hoped to ‘‘allow for greater flexibility 

should the spread to Treasury securities 

widen in a rising interest rate 

environment.’’ Id. In deciding not to 

rely on published deposit rates, the 

FDIC offered the following explanation: 

‘‘The FDIC believes this approach 

would not be timely because data on 

market rates must be available on a 

substantially current basis to achieve 

the intended purpose of this provision 

and permit institutions to avoid 

violations. At this time, the FDIC has 

determined not to tie the national rate 

to a private publication. The FDIC has 

not been able to establish that such 

published rates sufficiently cover the 

markets for deposits of different sizes 

and maturities.’’ Id. at 23939. 

‘‘Significantly Exceeds.’’ Through 

section 337.6, the FDIC has provided 

that a rate of interest ‘‘significantly 

exceeds’’ another rate, or is 

‘‘significantly higher’’ than another rate, 

if the first rate exceeds the second rate 

by more than 75 basis points. See 12 

CFR 337.6(b)(2)(ii), (b)(3)(ii) and (b)(4). 

In adopting this standard, the FDIC 

offered the following explanation: 

‘‘Based upon the FDIC’s experience with 

the brokered deposit prohibitions to 

date, it is believed that this number will 

allow insured depository institutions 

subject to the interest rate ceilings 

* * * to compete for funds within 

markets, and yet constrain their ability 

to attract funds by paying rates 

significantly higher than prevailing 

rates.’’ 57 FR at 23939. 

‘‘Market Area.’’ Section 337.6 defines 

‘‘market area’’ as follows: ‘‘A market 

area is any readily defined geographical 

area in which the rates offered by any 

one insured depository institution 

soliciting deposits in that area may 

affect the rates offered by other insured 

depository institutions operating in the 

same area.’’ 12 CFR 337.6(b)(4). In 

adopting this definition, the FDIC 

offered the following explanation: 

‘‘Under the final rule, the market area 

will be determined pragmatically, on a 

case-by-case basis, based on the evident 

or likely impact of a depository 

institution’s solicitation of deposits in a 

particular area, taking into account the 

means and media used and volume and 

sources of deposits resulting from such 

solicitation.’’ 57 FR at 23939. 

These rules and definitions in section 

337.6 have been difficult for insured 

depository institutions and examiners to 

apply. One issue is that section 337.6 

defines ‘‘market area’’ but does not 

define ‘‘normal market area.’’ 1 The 

latter term could be defined with 

reference to a depository institution’s 

location (such as the location of the 

main office or the location of branches); 

in the alternative, the term might be 

defined with reference to a depository 

institution’s marketing practices. Under 

these circumstances, institutions and 

examiners have struggled to determine 

‘‘normal market areas.’’ 

The problem with defining ‘‘normal 

market area’’ can be illustrated by an 

example. Two insured depository 


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institutions might maintain offices in 

the same area but have vastly different 

deposit gathering strategies. The first 

institution might concentrate on 

obtaining deposits from the local area; 

in contrast, the second institution might 

focus on a much wider area and each 

would tailor its rates to the deposits 

being solicited. 

This uncertainty has made it difficult 

for banks and regulators to administer 

the regulation. Also, this uncertainty 

appears to have resulted in the payment 

of high rates by less than well 

capitalized banks. For example, based 

on the most recent information 

currently available, the average 1-year 

certificate of deposit rate paid by less 

than well capitalized banks was 2.87 

while the average 1-year certificate of 

deposit rate paid by all insured banks 

and branches over the same period for 

which the FDIC had data was 2.18 

percent. In paying these rates, the banks 

have argued that such rates prevail in 

their ‘‘normal market areas.’’ 

Another issue is that the definition of 

the ‘‘national rate’’ is outdated. As 

discussed above, the ‘‘national rate’’ is 

defined as ‘‘120 percent of the current 

yield on similar U.S. Treasury 

obligations’’ (or 130 percent in the case 

of a deposit ‘‘at least half of which is 

uninsured’’). 12 CFR 337.6(b)(2)(ii)(B). 

In the past, this definition functioned 

well because rates on Treasury 

obligations tracked closely with rates on 

deposits. At present, however, the rates 

on Treasury obligations are low 

compared to deposit rates. 

Consequently, the ‘‘national rate’’ as 

defined in the FDIC’s regulations is 

artificially low. For example, at January 

4, 2009, the ‘‘national rate’’ as computed 

under section 337.6 for 1-year 

certificates of deposits was 0.48 percent 

while the average 1-year certificate of 

deposit rate paid by all insured banks 

and branches for which the FDIC had 

data was 1.95 percent. By setting a low 

rate, the FDIC’s regulations require some 

insured depository institutions to offer 

unreasonably low rates on some 

deposits, thereby restricting access even 

to market-rate funding. 

In response to these issues, the FDIC 

has decided to seek public comments on 

a proposed rule. The purpose of the 

proposed rule would be to provide 

insured depository institutions and 

examiners with a clear method for 

determining the highest permissible 

interest rates for those institutions that 

become less than well capitalized. 

Below, the operation of the proposed 

rule is explained in detail. 

III. The Proposed Rule 

The proposed rule would amend three 

paragraphs of § 337.6. Each of these 

paragraphs is discussed in turn below. 

Paragraph (a)(5)(iii). At present, this 

paragraph provides that the term 

‘‘deposit broker’’ includes ‘‘any insured 

depository institution that is not well 

capitalized, and any employee of any 

such insured depository institution, 

which engages, directly or indirectly, in 

the solicitation of deposits by offering 

rates of interest (with respect to such 

deposits) which are significantly higher 

than the prevailing rates of interest on 

deposits offered by other insured 

depository institutions in such 

depository institution’s normal market 

area.’’ 12 CFR 337.6(a)(5)(iii). This 

provision in the regulations is based 

upon corresponding language in the 

statute itself. See 12 U.S.C. 1831f(g)(3). 

As previously discussed, the effect of 

this provision is to prohibit adequately 

capitalized insured depository 

institutions from offering rates of 

interest significantly higher than the 

prevailing rates in the institution’s 

normal market area. 

Through the proposed rule, the FDIC 

would add the following sentence: ‘‘For 

purposes of this paragraph, the 

prevailing rates of interest in such 

depository institution’s normal market 

area shall be deemed to be the national 

rate as defined in paragraph (b)(2)(ii)(B) 

unless the FDIC determines, based on 

available evidence, that the prevailing 

rates differ from the national rate.’’ This 

amendment would serve the purpose of 

providing depository institutions and 

examiners with a clear method for 

determining the highest permissible 

interest rates. For example, the 

boundaries of a particular depository 

institution’s normal market area might 

be unclear. Further, insufficient 

evidence might be available as to the 

prevailing rates. 

Paragraph (b)(2)(ii)(B). At present, 

this paragraph defines the national rate 

as follows: ‘‘(1) 120 percent of the 

current yield on similar maturity U.S. 

Treasury obligations; or (2) In the case 

of any deposit at least half of which is 

uninsured, 130 percent of such 

applicable yield.’’ For the reasons 

previously explained, the FDIC believes 

that this definition is outdated. Through 

the proposed rule, the national rate 

would be redefined as ‘‘a simple average 

of rates paid by all insured depository 

institutions and branches for which data 

are available.’’ 

For the convenience of insured 

depository institutions and examiners, 

the FDIC would monitor the rates paid 

by insured depository institutions and 

use this data to calculate the ‘‘national 

rate.’’ Again, the national rate would be 

the average rate on deposits of similar 

size and maturity. 

Paragraph (b)(4). This paragraph 

defines the effective yields or prevailing 

rates in relevant markets. At present, 

this paragraph provides as follows: ‘‘For 

purposes of the [interest rate restrictions 

in § 337.6], the effective yields in the 

relevant markets are the average of 

effective yields offered by other insured 

depository institutions in the market 

area in which deposits are being 

solicited.’’ In addition, this paragraph 

defines ‘‘market area’’ as follows: ‘‘A 

market area is any readily defined 

geographical area in which the rates 

offered by any one insured depository 

institution soliciting deposits in that 

area may affect the rates offered by other 

insured depository institutions 

operating in the same area.’’ 

Though ‘‘market area’’ is defined, 

§ 337.6(b)(4) does not define ‘‘normal 

market area.’’ As previously noted, 

depository institutions and examiners 

have struggled in determining both what 

is a ‘‘normal market area’’ and what are 

the effective yields or prevailing rates in 

that area. Through the proposed rule, 

the FDIC would address this problem by 

replacing the language quoted above 

(defining ‘‘effective yield’’) with the 

following: ‘‘For purposes of [the interest 

rate restrictions in section 337.6], a 

presumption shall exist that the 

effective yield in the relevant market is 

the national rate as defined in paragraph 

(b)(2)(ii)(B) unless the FDIC determines, 

based on available evidence, that the 

effective yield differs from the national 

rate.’’ 

In most cases, under the proposed 

rule, determining a permissible rate 

would involve a simple two-step 

process. First, the insured depository 

institution would determine the 

national rate simply by obtaining 

information from the FDIC. Second, the 

institution or examiner would add 75 

basis points. In the absence of evidence 

that the applicable prevailing rate 

differs from the national rate, this twostep procedure would yield a 

permissible rate. 

The FDIC proposes to post the 

national rate for deposits of a particular 

size and maturity and also by posting 

the ‘‘rate cap’’ for such deposits. The 

‘‘rate cap’’ would be the national rate 

plus 75 basis points. Using data 

available to the FDIC as of January 4, 

2009, under this proposed rule, the 

FDIC would have published the 

following schedule of ‘‘national rates’’ 

and ‘‘rate caps.’’ This table would be 

published on the FDIC Web site and 

updated weekly. 


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Deposit products National 

rates Rate cap 

Non-maturity Products .................... 0.60 1.35 

1 month CD .......... 0.64 1.39 

3 month CD .......... 1.22 1.97 

6 month CD .......... 1.55 2.30 

12 month CD ........ 1.95 2.70 

24 month CD ........ 2.15 2.90 

36 month CD ........ 2.37 3.12 

60 month CD ........ 2.73 3.48 

In those cases in which evidence 

exists that the average rate in a relevant 

market exceeds the national rate, the 

bank would be permitted to offer the 

higher average rate plus 75 basis points. 

In most cases, however, the FDIC 

expects that the highest permissible rate 

would be the national rate plus 75 basis 

points. 

Through the proposed rule, the FDIC 

would not change its interpretation that 

an interest rate ‘‘significantly exceeds’’ 

a second rate, or is ‘‘significantly 

higher’’ than a second rate, if the first 

rate exceeds the second rate by more 

than 75 basis points. 

In making this proposal, the FDIC has 

relied upon the fact that competition for 

deposits among insured depository 

institutions has grown increasingly 

national in scope. This competition is 

largely the product of improvements in 

technology as well as the growth of a 

number of insured depository 

institutions into nationwide businesses. 

Today, a consumer can compare interest 

rates around the country simply by 

checking certain Web sites. In light of 

this development, the FDIC has 

concluded that the national rate (based 

on national averages) is a reasonable 

estimation of the prevailing rate in any 

market absent persuasive evidence to 

the contrary. 

The proposed rule would permit 

insured depository institutions that are 

not well capitalized to determine the 

highest permissible interest rates on 

deposits more simply. Rather than 

gathering information on the rates 

offered by all depository institutions in 

a particular market area (after 

determining the boundaries of the 

relevant market area) to determine the 

relevant prevailing rate for purposes of 

comparison, the insured depository 

institution could simply compare its 

rate to the FDIC’s national rate. Further, 

if the institution can demonstrate to the 

FDIC that the actual prevailing rate in 

the relevant market exceeds the 

‘‘national rate,’’ the institution would be 

permitted to offer the higher rate. By 

amending § 337.6 in this manner, the 

FDIC could simplify the interest rate 

restrictions while providing insured 

depository institutions with sufficient 

flexibility to respond to the market 

environment. 

Request for Comments 

The FDIC seeks comments on all 

aspects of the proposed rule. In 

particular, the FDIC requests comments 

on the following questions: 

1. Should the FDIC amend its 

definition of a ‘‘market area’’? Should 

the FDIC add a definition of ‘‘normal 

market area’’? If so, what should be the 

definition of an insured depository 

institution’s ‘‘normal market area’’? 

2. Should the FDIC create a 

presumption that the prevailing rate in 

any ‘‘market area’’ or ‘‘normal market 

area’’ is the national rate? If not, how 

should the FDIC determine the 

prevailing rate in a particular ‘‘market 

area’’ or ‘‘normal market area’’? 

3. Should the FDIC, in addition to 

publishing a ‘‘national rate’’ that can be 

used as a proxy for the ‘‘normal market 

area’’ rate, also provide a schedule that 

lists prevailing rates for maturities by 

state for those institutions soliciting 

deposits only in those states? 

4. Should the FDIC redefine the 

‘‘national rate’’? If so, should the FDIC 

define the ‘‘national rate’’ as ‘‘a simple 

average of rates paid by all insured 

depository institutions and branches for 

which data are available’’? If not, how 

should the FDIC define the ‘‘national 

rate’’? 

5. Should the definition of the 

‘‘national rate’’ be made more flexible? 

For example, in the event of changes in 

market conditions, should the FDIC 

possess the discretion to add or remove 

a multiplier to the ‘‘national rate’’ (so 

that the ‘‘national rate’’ might be the 

‘‘average of rates times 1.20’’ or some 

other multiplier)? 

6. Should the FDIC set forth a specific 

procedure for determining average or 

prevailing rates? For example, should 

the FDIC specify that data may be 

obtained from one or more private 

companies as to the rates paid by 

insured depository institutions? 

7. Should the FDIC establish a 

procedure for disseminating information 

about average rates or rate caps? For 

example, should the FDIC post such 

information on its Web site for use by 

insured depository institutions and 

examiners? 

8. Should the FDIC establish a 

procedure through which an insured 

depository institution could present 

evidence about the prevailing or average 

rates in a particular market? 

9. Under the FDIC’s regulations, a rate 

of interest ‘‘significantly exceeds’’ 

another rate, or is ‘‘significantly higher’’ 

than another rate, if the first rate 

exceeds the second rate by more than 75 

basis points. Should the FDIC change 

this standard? 

10. Should the FDIC adopt restrictions 

in addition to the current restrictions 

based on a depository institution’s 

capital category? 

Community Development and 

Regulatory Improvement Act 

The proposed rule does not impose 

any new reporting or disclosure 

requirements on insured depository 

institutions under the Riegle 

Community Development and 

Regulatory Improvement Act. 

Paperwork Reduction Act 

The proposed rule does not involve 

any new collections of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.). Consequently, no 

information collection has been 

submitted to the Office of Management 

and Budget for review. 

Regulatory Flexibility Act 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)), the FDIC certifies that the 

proposed rule will not have a significant 

impact on a substantial number of small 

entities. This conclusion is based upon 

the fact that the proposed rule would 

merely clarify the interest rate 

restrictions set forth in the Federal 

Deposit Insurance Act. The proposed 

rule would not impose any new 

restrictions. Indeed, under the proposed 

rule, the burden of complying with the 

interest rate restrictions would be eased 

because insured depository institutions 

that are not well capitalized (including 

any small entities) could rely on the 

‘‘national rate’’ determined by the FDIC. 

In those cases in which the insured 

depository institution believes that the 

rates in its ‘‘normal market area’’ exceed 

the ‘‘national rate,’’ the proposed rule 

would permit the institution to offer 

evidence of the ‘‘normal market area’’ 

rates just as the current rules permit 

institutions to offer evidence of ‘‘normal 

market area’’ rates. 

Impact on Families 

The FDIC has determined that the 

proposed rule would not affect family 

well-being within the meaning of 

section 654 of the Treasury and General 

Government Appropriations Act, 

enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681). 

Plain Language 

The FDIC has sought to present the 

proposed rule in a simple and 

straightforward manner. The FDIC 


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invites comments on whether the rule 

could be written so that it is easier to 

understand. 

List of Subjects in 12 CFR Part 337 

Banks, Banking, Reporting and 

recordkeeping requirements, Savings 

associations, Securities. 

For the reasons stated above, the 

Board of Directors of the Federal 

Deposit Insurance Corporation proposes 

to amend part 337 of title 12 of the Code 

of Federal Regulations as follows: 

1. The authority citation for part 337 

continues to read as follows: 

Authority: 12 U.S.C. 375a(4), 375b, 1816, 

1818(a), 1818(b), 1819, 1820(d)(10), 1821(f), 

1828(j)(2), 1831. 

2. In § 337.6, revise paragraphs 

(a)(5)(iii), (b)(2)(ii)(B) , and (b)(4) to read 

as follows: 

§ 337.6 Brokered deposits. 

(a) * * * 

(5) * * * 

(iii) Notwithstanding paragraph 

(a)(5)(ii) of this section, the term deposit 

broker includes any insured depository 

institution that is not well capitalized, 

and any employee of any such insured 

depository institution, which engages, 

directly or indirectly, in the solicitation 

of deposits by offering rates of interest 

(with respect to such deposits) which 

are significantly higher than the 

prevailing rates of interest on deposits 

offered by other insured depository 

institutions in such depository 

institution’s normal market area. For 

purposes of this paragraph, the 

prevailing rates of interest in such 

depository institution’s normal market 

area shall be deemed to be the national 

rate as defined in paragraph (b)(2)(ii)(B) 

of this section unless the FDIC 

determines, based on available 

evidence, that the prevailing rates differ 

from the national rate. 

* * * * * 

(b) * * * 

(2) * * * (ii) * * * 

(B) The national rate paid on deposits 

of comparable size and maturity for 

deposits accepted outside the 

institution’s normal market area. For 

purposes of this paragraph (b)(2)(ii)(B), 

the national rate, which would be 

calculated and published by the FDIC, 

shall be a simple average of rates paid 

by all insured depository institutions 

and branches for which data are 

available. 

* * * * * 

(4) For purposes of the restrictions 

contained in paragraphs (b)(2)(ii)(A) and 

(b)(3)(ii) of this section, a presumption 

shall exist that the effective yield in the 

relevant market is the national rate as 

defined in paragraph (b)(2)(ii)(B) of this 

section unless the FDIC determines, 

based on available evidence, that the 

effective yield differs from the national 

rate. An effective yield on a deposit 

with an odd maturity violates 

paragraphs (b)(2)(ii)(A) and (b)(3)(ii) of 

this section if it is more than 75 basis 

points higher than the yield calculated 

by interpolating between the yields 

offered by other insured depository 

institutions on deposits of the next 

longer and shorter maturities offered in 

the market. A market area is any readily 

defined geographical area in which the 

rates offered by any one insured 

depository institution soliciting deposits 

in that area may affect the rates offered 

by other insured depository institutions 

operating in the same area. 

* * * * * 

Dated at Washington, DC, this 27th day of 

January, 2009. 

Authorized to be published in the Federal 

Register by Order of the Board of Directors 

of the Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. E9–2112 Filed 2–2–09; 8:45 am] 

BILLING CODE 6714–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R9–IA–2008–0123; 96100–1671– 

0000–B6] 

RIN 1018–AI83 

Endangered and Threatened Wildlife 

and Plants; Petition To Reclassify the 

Wood Bison From Endangered to 

Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce our 

90-day finding on a petition to reclassify 

the wood bison (Bison bison 

athabascae) from endangered to 

threatened throughout its range in the 

List of Endangered and Threatened 

Wildlife established under the 

Endangered Species Act of 1973 (Act), 

as amended (16 U.S.C. 1531 et seq.). We 

find that the petition presents 

substantial scientific and commercial 

information indicating that the 

petitioned action of reclassifying the 

wood bison from endangered to 

threatened status under the Act may be 

warranted. Therefore, we are initiating a 

status review of the wood bison to 

determine if reclassification, as 

petitioned, is warranted under the Act. 

To ensure that the status review is 

comprehensive, we are requesting 

submission of any new information on 

the wood bison since its original listing 

as endangered throughout its entire 

range under the predecessor of the Act 

on June 2, 1970 (35 FR 8491). At the 

conclusion of our status review, we will 

issue a 12-month finding on the 

petition, as provided in section 

4(b)(3)(B) of the Act. 

DATES: The finding announced in this 

document was made on January 14, 

2009. To be considered in the 12-month 

finding on this petition, we will accept 

comments and information from all 

interested parties until April 6, 2009. 

ADDRESSES: You may submit 

information, materials, and comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R9– 

IA–2008–0123; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive; 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Rosemarie Gnam, Ph.D., Chief, Division 

of Scientific Authority, U.S. Fish and 

Wildlife Service, 4401 N. Fairfax Drive, 

Room 110, Arlington, VA 22203; 

telephone 703–358–1708; facsimile 

703–358–2276; electronic mail 

ScientificAuthority@fws.gov. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Information Solicited 

We intend that any final action 

resulting from this status review will be 

as accurate and as effective as possible 

based on the best available scientific 

and commercial information. Therefore, 

we solicit information, comments, or 

suggestions on the wood bison from the 

public, concerned government agencies, 

the scientific community, or any other 

interested party. We are opening a 60- 

day public comment period to allow all 

interested parties an opportunity to 

provide information on the status of the 


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