47050 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Rules and Regulations 

This rule does not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

onion handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

In addition, as noted in the initial 

regulatory flexibility analysis, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this rule. 

Further, the Committee’s meeting was 

widely publicized throughout the South 

Texas onion industry and all interested 

persons were invited to attend the 

meeting and participate in Committee 

deliberations. All Committee meetings 

are public meetings and all entities, 

both large and small, are able to express 

their views. 

This action also affirms information 

contained in the interim final rule 

concerning Executive Orders 12866 and 

12988, the Paperwork Reduction Act (44 

U.S.C. Chapter 35), and the E-Gov Act 

(44 U.S.C. 101). 

Comments on the interim final rule 

were required to be received on or 

before June 23, 2009. No comments 

were received. Therefore, for the reasons 

given in the interim final rule, we are 

adopting the interim final rule as a final 

rule, without change. 

To view the interim final rule, go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=AMS-FV09-0012. 

After consideration of all relevant 

material presented, it is found that 

finalizing the interim final rule, without 

change, as published in the Federal 

Register (74 FR 18621; April 24, 2009) 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 959 

Marketing agreements, Onions, 

Reporting and recordkeeping 

requirements. 

PART 959—[AMENDED] 

■ Accordingly, the interim final rule 

amending 7 CFR part 959 which was 

published at 74 FR 18621 on April 24, 

2009, is adopted as a final rule without 

change. 

Dated: September 9, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–22115 Filed 9–14–09; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 329 

RIN 3064–AD46 

Interest on Deposits 

AGENCY: Federal Deposit Insurance 

Corporation (FDIC). 

ACTION: Final rule. 

SUMMARY: The Federal Deposit 

Insurance Corporation (FDIC) is 

amending its regulations to eliminate 

restrictions on certain kinds of transfers 

from savings deposits for state chartered 

banks that are not members of the 

Federal Reserve System and insured 

branches of foreign banks. The Board of 

Governors of the Federal Reserve 

System (the FRB) has already amended 

its regulations to eliminate these 

restrictions for member banks. Because 

this change is ministerial, the FDIC has 

determined for good cause that public 

notice and comment is unnecessary and 

impracticable under the Administrative 

Procedure Act (the APA) and is 

implementing this change by means of 

a final rule without notice and 

comment. 

DATES: This rule is effective on 

September 15, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Mark Mellon, Counsel, Legal Division, 

(202) 898–3884 or Samuel Frumkin, 

Senior Policy Analyst (Compliance), 

Compliance Policy Section, Division of 

Supervision and Consumer Protection, 

(202) 898–6602, 550 17th Street, NW., 

Washington, DC 20429. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. FRB Amendments to Regulation D 

On May 20, 2009, the FRB announced 

the approval of final amendments to 12 

CFR part 204, Reserve Requirements of 

Depository Institutions (Regulation D). 

Among other changes, the amendments 

will eliminate restrictions on certain 

types of transfers that consumers can 

make from savings deposits. See 74 FR 

25629 (May 29, 2009). The changes were 

effective 30 days from the date of 

publication in the Federal Register, that 

is, July 2, 2009. 

Prior to the FRB amendments, 

Regulation D limited the number of 

‘‘convenient’’ transfers and withdrawals 

from savings deposits to not more than 

six per month. Within this overall limit 

of six, not more than three transfers or 

withdrawals could be made by check, 

debit card, or similar order made by the 

depositor and payable to third parties 

(the three transfer sublimit). Under the 

FRB final amendments, the permissible 

monthly number of transfers or 

withdrawals from savings deposits by 

check, debit card, or similar order 

payable to third parties has been 

increased from three to six. In other 

words, while the FRB has decided to 

retain the overall six-transfer limit for 

savings deposits, it has eliminated the 

three-transfer sublimit within the 

overall limit that applied to transfers or 

withdrawals from savings deposits by 

check, debit card, or similar order 

payable to third parties. The FRB 

decided to eliminate the three transfer 

sublimit because distinctions between 

such transfers and other types of preauthorized or automatic transfers 

subject to the six-per-month limit were 

no longer logical in light of 

technological advances. See 74 FR 

25631. 

B. FDIC Responsibilities Under Section 

18(g) of the Federal Deposit Insurance 

(FDI) Act 

Section 18(g) of the FDI Act (12 U.S.C. 

1828(g)) provides that the Board of 

Directors of the FDIC shall by regulation 

prohibit the payment of interest or 

dividends on demand deposits in 

insured nonmember banks and in 

insured branches of foreign banks. 

Accordingly, the FDIC promulgated 

regulations prohibiting the payment of 

interest or dividends on demand 

deposits at 12 CFR part 329. See 51 FR 

10808 (Mar. 31, 1986). Section 18(g) of 

the FDI Act also provides that the FDIC 

shall make such exceptions to this 

prohibition as are prescribed with 

respect to demand deposits in member 

banks by section 19 of the Federal 

Reserve Act, as amended, or by 

regulation of the FRB. 

Generally, member banks, state 

nonmember banks and insured branches 

of foreign banks are subject to the 

statutory prohibition and exceptions to 

that prohibition, although under 

different statutes and regulations. From 

time to time the FRB issues or 

authorizes a new exception to the 

prohibition applicable to member banks, 

and the FDIC later issues or authorizes 

a similar exception affecting state 

nonmember banks and insured branches 

of foreign banks, as is the case in this 

particular rulemaking. Note, however, 

that under section 329.3 of part 329, 

state nonmember banks and insured 

branches of foreign banks are already 

subject to the same exceptions to the 

prohibition that member banks are 

subject to, regardless of whether the 

FDIC has issued or authorized the 

specific exception. See 63 FR 8341 (Feb. 

19, 1998). 


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Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Rules and Regulations 47051 

1Paragraph (1) of 12 U.S.C. 1832(a) authorizes 

banks to let certain depositors make withdrawals 

from interest-bearing deposits by negotiable or 

Continued 

C. Amendments to Sections 329.1(b)(3) 

and 329.102 of Part 329 

Therefore, in accord with the FRB 

amendments to Regulation D, the FDIC 

is amending the part 329 definition of 

‘‘demand deposit’’ to eliminate the three 

transfer sublimit. This will be done by 

eliminating the first proviso of 

subsection 329.1(b)(3). A minor change 

is also made to the interpretive rule set 

forth in section 329.102 to make it 

conform to section 329.1(b)(3) as 

amended by this rule. 

II. Exemption From Public Notice and 

Comment 

The FDIC is required by law to 

promulgate the same exception to the 

prohibition against the payment of 

interest on demand deposits that has 

been prescribed with respect to demand 

deposits in member banks by the FRB 

by regulation. Given this statutory 

requirement, the FDIC has no discretion 

in this matter, but must instead 

eliminate the three transfer sublimit for 

state nonmember banks and insured 

branches of foreign banks in the same 

way that the FRB has done for member 

banks. Moreover, under section 329.3 of 

FDIC Rules and Regulations, state 

nonmember banks and insured branches 

of foreign banks are already covered by 

the FRB elimination of the three transfer 

sublimit when that regulatory change 

becomes effective on July 2, 2009. As a 

result, amending part 329 to eliminate 

reference to the three transfer sublimit 

would essentially only be an official 

recognition by the FDIC of an already 

established requirement. 

For these reasons, the FDIC has thus 

determined for good cause that public 

notice and comment is unnecessary and 

impracticable under the APA (5 U.S.C. 

553(b)(3)(B)), and that the rule should 

be published in the Federal Register as 

a final rule. 

III. Effective Date 

For the same reasons that the FDIC 

has determined that public notice and 

comment is unnecessary and 

impractical for good cause, the FDIC 

also finds that it has good cause to adopt 

an effective date that would be less than 

30 days after the date of publication in 

the Federal Register pursuant to the 

APA (5 U.S.C. 553(d)). The amendment 

to Part 329 will be effective as of the 

date of its publication in the Federal 

Register. 

IV. Regulatory Flexibility Act 

An initial regulatory flexibility 

analysis under the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 603) is 

required only when an agency must 

publish a general notice of proposed 

rulemaking. As already noted, the FDIC 

has determined that publication of a 

notice of proposed rulemaking is not 

necessary for this final rule. 

Accordingly, the RFA does not require 

an initial regulatory flexibility analysis. 

Nevertheless, the FDIC has considered 

the likely impact of the rule on small 

entities and believes that the rule will 

not have a significant impact on a 

substantial number of small entities. 

V. Small Business Regulatory 

Enforcement Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA) (Pub. L. 104–121, 110 Stat. 

857) provides generally for agencies to 

report rules to Congress and for 

Congress to review such rules. The 

reporting requirement is triggered in 

instances where the FDIC issues a final 

rule as defined by the APA (5 U.S.C. 551 

et seq.). Because the FDIC is issuing a 

final rule as defined by the APA, the 

FDIC will file the reports required by 

the SBREFA. 

VI. The Treasury and General 

Government Appropriations Act, 1999 

Assessment of Federal Regulations and 

Policies on Families 

The FDIC has determined that this 

final rule will not affect family wellbeing within the meaning of section 654 

of the Treasury and General 

Government Appropriations Act, 1999 

(Pub. L. 105–277, 112 Stat. 2681 (1998)). 

VII. Paperwork Reduction Act 

No collection of information pursuant 

to section 3504(h) of the Paperwork 

Reduction Act of 1980 (44 U.S.C. 3501 

et seq.) is contained in this rule. 

Consequently, no information has been 

submitted to the Office of Management 

and Budget for review. 

VIII. Riegle Community Development 

and Regulatory Improvement Act 

The final rule does not impose any 

new reporting or disclosure 

requirements on insured depository 

institutions under the Riegle 

Community Development and 

Regulatory Improvement Act. 

IX. Plain Language 

Section 722 of the Gramm-LeachBliley Act, Public Law 106–102, 113 

Stat. 1338, 1471 (Nov. 12, 1999), 

requires the Federal banking agencies to 

use plain language in all proposed and 

final rules published after January 1, 

2000. The final rule makes part 329 

plainer by eliminating unnecessary 

language. 

X. Authority for the Regulation 

This regulation is authorized by the 

FDIC’s general rulemaking authority. 

Specifically, 12 U.S.C. 1819(a)(Tenth) 

provides the FDIC with general 

authority to issue such rules and 

regulations as it deems necessary to 

carry out the statutory mandates of the 

FDI Act and other laws that the FDIC is 

charged with administering or 

enforcing. Moreover, as previously 

noted, section 18(g) of the FDI Act 

provides that the FDIC shall make such 

exceptions to the statutory prohibition 

against the payment of interest on 

demand deposits as are prescribed with 

respect to demand deposits in member 

banks by section 19 of the Federal 

Reserve Act, as amended, or by 

regulation of the FRB (12 U.S.C. 

1828(g)). 

List of Subjects in 12 CFR Part 329 

Banks, Banking, Interest rates. 

■ For the reasons set out in the 

preamble, the Board of Directors of the 

FDIC hereby amends part 329 of title 12 

of the Code of Federal Regulations as 

follows: 

PART 329—INTEREST ON DEPOSITS 

■ 1. The authority for part 329 

continues to read as follows: 

Authority: 12 U.S.C. 1819, 1828(g), 

1832(a). 

■ 2. Section 329.1 is amended by 

revising paragraph (b)(3) to read as 

follows: 

§ 329.1 Definitions. 

* * * * * 

(b)* * * 

(3) Any other deposit from which, 

under the terms of the deposit contract, 

the depositor is authorized to make, 

during any month or statement cycle of 

at least four weeks, more than six 

transfers by means of a preauthorized or 

automatic transfer or telephonic 

(including data transmission) 

agreement, order or instruction, which 

transfers are made to another account of 

the depositor at the same bank, to the 

bank itself, or to a third party, provided 

that no deposit specified in this 

paragraph (3) will be deemed to be a 

demand deposit if the entire beneficial 

interest of the deposit is held by a 

depositor identified in paragraph (2) of 

section 2(a) of Public Law 93–100 (12 

U.S.C. 1832(a)(2)).1

* * * * * 


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47052 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Rules and Regulations 

transferable instruments for the purpose of making 

transfers to third parties—i.e., to hold deposits 

commonly called NOW accounts. 

Paragraph (2) of 12 U.S.C. 1832(a) provides: 

‘‘Paragraph (1) shall apply only with respect to 

deposits or accounts which consist solely of funds 

in which the entire beneficial interest is held by one 

or more individuals or by an organization which is 

operated primarily for religious, philanthropic, 

charitable, educational, political, or other similar 

purposes and which is not operated for profit, and 

with respect to deposits of public funds by an 

officer, employee, or agent of the United States, any 

State, county, municipality, or political subdivision 

thereof, the District of Columbia, the 

Commonwealth of Puerto Rico, American Samoa, 

Guam, any territory or possession of the United 

States, or any political subdivision thereof.’’ 

1 16 U.S.C. 839c(c). 

2 16 U.S.C. 839c(c)(1). 

3This rate is generally a lower rate. 

4See CP Nat’l Corp. v. BPA, 928 F.2d 905, 907 

(9th Cir. 1991) (quoting Public Utility Commissioner 

of Oregon v. BPA, 583 F. Supp. 752, 754 (D.Or. 

1984)). 

5 16 U.S.C. 839c(c)(7). 

6 16 U.S.C. 839c(c)(7)(A)–(C). 

7 Methodology for Sales of Electric Power to 

Bonneville Power Administration, Order No. 400, 

FERC Stats. & Regs. ¶ 30,601, at 31,161–62 (1984), 

reh’g denied, Order No. 400–A, 30 FERC ¶ 61,108 

(1985). 

8 16 U.S.C. 824, 824d, 824e. 

9Order No. 400, FERC Stats. & Regs. ¶ 30,601 at 

31,161–62. 

■ 3. Section 329.102 is amended by 

revising the introductory text to read as 

follows: 

§ 329.102 Deposits described in 

§ 329.1(b)(3). 

This interpretive rule explains the 

proviso of § 329.1(b)(3). 

* * * * * 

Dated this 9th day of September 2009. 

By order of the Board of Directors. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. E9–22070 Filed 9–14–09; 8:45 am] 

BILLING CODE 6714–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 301 

[Docket Nos. EF08–2011–000 and RM08–20– 

000; Order No. 726; 128 FERC ¶ 61,222] 

Sales of Electric Power to the 

Bonneville Power Administration; 

Revisions to Average System Cost 

Methodology 

Issued September 4, 2009. 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Final rule. 

SUMMARY: The Federal Energy 

Regulatory Commission grants final 

approval to the revised methodology for 

determining the average system cost 

(ASC) used by Bonneville Power 

Administration in its Residential 

Exchange Program. 

DATES: Effective Date: This final rule is 

effective October 15, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Peter Radway (Technical Information), 

Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, Phone: 202– 

502–8782, e-mail: 

peter.radway@ferc.gov. 

Julia A. Lake (Legal Information), 

Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, Phone: 202– 

502–8370, e-mail: julia.lake@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Jon Wellinghoff, 

Chairman; Suedeen G. Kelly, Marc Spitzer 

and Philip D. Moeller. 

Order No. 726 

Final Rule 

Issued September 4, 2009 

1. The Federal Energy Regulatory 

Commission grants final approval of the 

Bonneville Power Administration’s 

(Bonneville) new methodology for 

determining the average system cost 

(ASC) of a utility’s resources under 

section 5(c) of the Pacific Northwest 

Electric Power Planning and 

Conservation Act (Northwest Power 

Act).1

I. Background 

2. Section 5(c) of the Northwest Power 

Act provides for a Residential Exchange 

Program, which is designed to make the 

benefits of Bonneville’s relatively low 

preference power rates available to 

residential customers of investor-owned 

utilities in the Pacific Northwest. 

Although the Residential Exchange 

Program is available to any Pacific 

Northwest utility, the primary 

beneficiaries of the exchange are 

investor-owned utilities. Under the 

Residential Exchange Program, a utility 

may sell power to Bonneville at the 

average system cost of that utility’s 

resources.2 Bonneville then sells the 

same amount of power back to the 

utility at Bonneville’s priority firm 

exchange rate.3 The power exchange is 

generally viewed as a paper 

transaction.4 In almost all instances, 

Bonneville makes a payment to the 

utility for the difference between the 

utility’s average system cost and 

Bonneville’s priority firm exchange rate, 

multiplied by the utility’s residential 

and small farm load. 

3. The Northwest Power Act does not 

define what constitutes the average 

system cost of a utility’s resources. 

Instead, the Northwest Power Act grants 

Bonneville’s Administrator the 

authority to establish a methodology for 

determining and exchanging utility’s 

average system cost through a 

stakeholder process in consultation with 

the Northwest Power Planning Council, 

Bonneville’s customers, and appropriate 

State regulatory bodies in the region.5

The Northwest Power Act, however, 

directs the Administrator to exclude the 

following three types of costs from the 

average system cost: (1) The cost of 

additional resources in an amount 

sufficient to serve any new large single 

load of the utility; (2) the cost of 

additional resources in an amount 

sufficient to meet any additional load 

outside the region occurring after 

December 5, 1980; and (3) any cost of 

any generating facility which is 

terminated prior to initial operation.6

Outside these explicit exclusions, the 

Northwest Power Act is silent on the 

costs that may be included or excluded 

in the average system cost. Bonneville’s 

Administrator decides what costs 

should be considered when calculating 

the average system cost, and what 

process should be used to make that 

determination. 

4. The Commission’s role in this 

exchange program is two-fold. First, 

under section 5(c)(7) of the Northwest 

Power Act, while Bonneville develops a 

methodology for determining a utility’s 

ASC (after consulting with various 

affected groups), the Commission must 

‘‘review and approve’’ the methodology. 

Neither the statute nor its legislative 

history explains the nature of this 

review.7

5. The Commission’s second role in 

the exchange program arises from its 

Federal Power Act (FPA) 8 responsibility 

to review the wholesale sales rates of 

individual public utilities, essentially 

investor-owned utilities; the 

Commission reviews the rates for such 

sales from the investor-owned utilities 

to Bonneville based on the ASC 

methodology. The Commission’s 

existing rules (18 CFR 35.30 and 35.31) 

provide that the Commission will accept 

under the FPA any sale to Bonneville 

that is based on application of an 

approved ASC methodology.9

6. On July 14, 2008, Bonneville filed 

a proposed revised ASC methodology to 

replace the then-current ASC 

methodology approved by the 

Commission on a final basis in 1984, 

and codified in part 301 of the 

Commission’s regulations (July 2008 


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