Federal Deposit Insurance Act: Regulators' Use of Systemic Risk Exception Raises Moral Hazard Concerns and Opportunities Exist to Clarify the Provision
Released: 2010-04-15T00:00:00

Letter

Background

The dramatic decline in the U.S. housing market that began in 2006 precipitated a decline in the price of mortgage-related assets, particularly mortgage assets based on subprime loans, in 2007. Some institutions found themselves so exposed that they were threatened with failure, and some failed because they were unable to raise capital or obtain liquidity as the value of their portfolios declined. Other institutions, ranging from government-sponsored enterprises such as Fannie Mae and Freddie Mac to large securities firms, were left holding “toxic” mortgages or mortgage- related assets that became increasingly difficult to value, were illiquid, and potentially had little worth. Moreover, investors not only stopped buying private-label securities backed by mortgages but also became reluctant to buy securities backed by other types of assets. Because of uncertainty about the liquidity and solvency of financial entities, the prices banks charged each other for funds rose dramatically, and interbank lending conditions deteriorated sharply. The resulting liquidity and credit crunch made the financing on which businesses and individuals depend increasingly difficult to obtain. By late summer of 2008, the ramifications of the financial crisis ranged from the continued failure of financial institutions to increased losses of individual savings and corporate investments and further tightening of credit that would exacerbate the emerging global economic slowdown.

Treasury and federal financial regulators play a role in regulating and monitoring the financial system. Historically, Treasury’s mission has been to act as steward of U.S. economic and financial systems. Among its many activities, Treasury has taken a leading role in addressing underlying issues such as those precipitating the recent financial crisis. The key federal banking regulators include the following: The Federal Reserve, an independent agency that is responsible for conducting the nation’s monetary policy by influencing the monetary and credit conditions in the economy in pursuit of maximum employment, stable prices, and moderate long-term interest rates; supervising and regulating bank holding companies and state-chartered banks that are members of the Federal Reserve System; and maintaining the stability of the financial system and containing systemic risk that may arise in financial markets through its role as lender of last resort; FDIC, an independent agency created to help maintain stability and public confidence in the nation’s financial system by insuring deposits, examining and supervising insured state-chartered banks that are not members of the Federal Reserve System, and resolving failed or failing banks; OCC, which charters and supervises national banks; and the Office of Thrift Supervision, which supervises savings associations (thrifts) and savings and loan holding companies.

In 1991, Congress enacted FDICIA in response to the savings and loan crisis. FDICIA enacted a number of reforms, including some designed to address criticisms that federal regulators had not taken prompt and forceful actions to minimize or prevent losses to the deposit insurance funds caused by bank and thrift failures. Among other things, FDICIA amended the FDI Act by establishing a rule requiring FDIC to follow the least costly approach when resolving an insured depository institution. Specifically, under the least cost rule, FDIC must resolve a troubled insured depository institution using the method expected to have the least cost to the deposit insurance fund and cannot use the fund to protect uninsured depositors and creditors who are not insured depositors if such protection would increase losses to the fund. To make a least-cost determination, FDIC must (1) consider and evaluate all possible resolution alternatives by computing and comparing their costs on a present-value basis, and (2) select the least costly alternative on the basis of the evaluation. Under the least-cost requirements, FDIC generally has resolved failed or failing banks using three basic methods, which do not constitute open bank assistance. These are: (1) directly paying depositors the insured amount of their deposits and disposing of the failed bank’s assets (deposit payoff and asset liquidation); (2) selling only the bank’s insured deposits and certain other liabilities, and some of its assets, to an acquirer (insured deposit transfer); and (3) selling some or all of the failed bank’s deposits, certain other liabilities, and some or all of its assets to an acquirer (purchase and assumption). According to FDIC officials, they have most commonly used purchase and assumption, as it is often the least costly and disruptive alternative.

FDICIA also amended the FDI Act to create an exception to the least-cost requirements, known as the systemic risk exception, that allows FDIC assistance without complying with the least cost rule if compliance would have “serious adverse effects on economic conditions and financial stability”—that is, would cause systemic risk—and if such assistance would “avoid or mitigate such adverse effects.” FDIC may act under the exception only under the process specified in the statute. The FDIC Board of Directors and the Board of Governors of the Federal Reserve System each must recommend use of the exception by a vote of not less than two- thirds of their respective members and deliver a written recommendation to the Secretary of the Treasury. Based on a review of the FDIC and Federal Reserve recommendations, the Secretary of the Treasury, in consultation with the President, may make a systemic risk determination authorizing FDIC to take action or provide assistance that does not meet the least-cost requirements. For example, under a systemic risk determination, FDIC is not bound to identify and follow the least-cost resolution strategy and may provide assistance (such as debt or deposit guarantees) that protects uninsured depositors and creditors, who otherwise might suffer losses under a least-cost method such as a purchase and assumption or depositor payoff. Until recently, the systemic risk exception required FDIC to recover any resulting losses to the insurance fund by levying one or more emergency special assessments on insured depository institutions. Congress amended this requirement in May 2009 to also authorize assessments on bank holding companies, and savings and loan holding companies. Finally, the systemic risk exception includes requirements that serve to ensure accountability for regulators’ use of this provision. The Secretary of the Treasury must notify Congress in writing of any systemic risk determination and must document each determination and retain the documentation for GAO review, and GAO must report its findings to Congress.

Documentation Evidences Interagency Collaboration, but Announcements of FDIC Actions That Did Not Result in a Systemic Risk Determination Create Accountability and Transparency Concerns

On five occasions, collaboration among high-level officials at Treasury, FDIC, and the Federal Reserve resulted in the announcement of emergency actions that would require a systemic risk exception. FDIC and the Federal Reserve provided written recommendations to the Secretary of the Treasury for all five announced actions, but the Secretary has made a determination on only three of these announcements. Treasury made the first two determinations concurrent with the initial announcements, and the third determination was made nearly 2 months after the announcement of action. Treasury has not made a determination on the remaining two announced actions which have not been implemented to date. Such announcements can affect market expectations and contribute to moral hazard, but the announcements alone—absent a Treasury determination— do not trigger requirements established by Congress for documentation and communication of the agencies’ use of the systemic risk exception. Such requirements serve to ensure transparency and accountability related to the application of the systemic risk exception.

Treasury, FDIC, and the Federal Reserve Collaborated before Announcing Emergency Actions

On five occasions between late 2008 and early 2009, regulators announced potential emergency actions that would require a systemic risk determination before they could be implemented. In each case, a liquidity crisis—either at a single institution or across the banking industry— triggered discussions among FDIC, Federal Reserve, and Treasury officials about whether to invoke the systemic risk exception. According to regulators, these discussions generally occurred among high-level officials at the three agencies over a period of a few days, through e-mail, memorandums, telephone calls, and emergency meetings. The regulators shared and analyzed information, such as data describing the liquidity pressures facing financial institutions, to help them understand the financial condition of the troubled institutions and the potential systemic implications of complying with the least-cost resolution requirements. In the second section of this report, we discuss in detail publicly available information about the financial condition of the institutions that received emergency assistance, the basis for each decision to invoke the systemic risk exception, and the actions that FDIC took under the provision.

Following these collaborations, FDIC and Federal Reserve staff submitted documentation of their analyses and recommendations to support invoking the systemic risk exception to their respective Boards. In each of the five cases, FDIC’s Board of Directors and Federal Reserve Board members voted in favor of recommending a systemic risk determination, and FDIC and the Federal Reserve provided written recommendations to the Secretary of the Treasury (see fig. 1). On each occasion, the regulators issued public statements announcing planned FDIC actions that would require a systemic risk determination for implementation. The Secretary of the Treasury made a determination in response to three of the five recommendations (Wachovia, TLGP, and Citigroup); therefore, we reviewed, as provided by the mandate, documentation related to these three cases. Treasury documents that we reviewed indicate that the Secretary of the Treasury signed and approved the determinations (as required by the FDI Act) and authorized FDIC to take planned action after having reviewed the FDIC and the Federal Reserve’s written recommendations and consulted with the President. Also as required by the FDI Act, Treasury sent letters to Congress to notify the relevant committees of all three determinations.

Announcements of Emergency Actions without a Systemic Risk Determination Diminish the Level of Transparency and Accountability Intended by Congress

In all five cases, planned emergency actions were announced by regulators, but Treasury did not make an immediate determination for three of these announcements and still has not made a determination to date in two of them. In two cases, Wachovia and TLGP, Treasury made a determination before regulators finalized the terms of the assistance. According to Treasury, FDIC, and Federal Reserve officials, they publicly announced emergency assistance prior to a Treasury determination in these cases to reassure the markets that the government was committed to supporting financial market stability. In the Citigroup case, the public announcement preceded Treasury’s determination by about 2 months.

Specifically, on November 23, 2008, Treasury, FDIC, and the Federal Reserve jointly announced an agreement-in-principle to assist Citigroup. FDIC and the Federal Reserve delivered written recommendations by early December 2008 and Treasury signed the determination in January 2009 when the finalized agreement was executed.

Since the Citigroup determination, Treasury has not made determinations following two announcements of emergency actions and those announced initiatives have not been implemented. On January 16, 2009, FDIC announced an agreement-in-principle with Bank of America to share losses on a fixed pool of Bank of America assets. Although FDIC and the Federal Reserve provided written recommendations in support of a determination, according to Treasury and FDIC officials, the Secretary of the Treasury did not make a determination at the time because the terms of the agreement had not been finalized. In May 2009, Bank of America requested a termination of the term sheet for the announced guarantee of up to $118 billion in assets by the U.S. government and in September 2009, the parties to the agreement-in-principle executed a termination agreement in which Bank of America agreed to pay $425 million to Treasury, the Federal Reserve, and FDIC. Similarly, on March 23, 2009, FDIC and Treasury announced the creation of the PPIP’s LLP, but Treasury has not yet made a determination. According to a Treasury official with whom we spoke, Treasury has delayed making a determination while regulators considered how to structure the program.

While important to stabilizing markets, the public announcement of planned actions can serve as a de facto determination by implying that Treasury has made a systemic risk determination. An announcement alone could have given rise to some of the benefits of a systemic risk determination, while similarly generating the potential for negative incentives such as moral hazard. For example, although FDIC did not provide assistance to Bank of America, the announcement of the planned Bank of America guarantees signaled regulators’ willingness to provide such assistance and may have achieved to some degree the intended effect of increasing market confidence in Bank of America. The agreement requiring Bank of America to pay a $425 million termination fee recognized that although the parties never entered into a definitive documentation of the transaction, Bank of America received value from the announced term sheet, including benefits in terms of market confidence in the institution.

Although the effects of announcements and determinations can be similar, determinations must be conducted under procedural and documentation requirements that do not apply to announcements. Under the determination process, Treasury must consider recommendations from FDIC and the Federal Reserve, consult with the President before making a determination, and document its reasons for making a determination and retain the documentation for later review. Treasury must also notify Congress in writing of each systemic risk determination. None of these requirements applies when a determination is not made.

We acknowledge that Treasury is not required to make a determination within a set period and recognize the need for some flexibility during crisis situations. However, absent a determination, the agency is not required to follow the formal process put in place by Congress to ensure transparency and accountability in the application of the systemic risk exception. Therefore, when a determination is not made along with the announced actions, Congress cannot be assured that Treasury’s reasoning would be open to the same scrutiny required in connection with a formal systemic risk determination because Treasury does not have to act upon the FDI Act’s documentation and accountability measures. For instance, Congress cannot be assured that the documentation required to support a determination will be or has been generated, even when the announcement by the agencies can have some of the same effects a systemic risk determination would have. Furthermore, uncertainty in de facto determination situations can arise because Treasury is not required to communicate that it will not make a systemic risk determination for an announced action. For example, since the announcement proposing the creation of the PPIP’s LLP in March 2009, it has not been clear whether Treasury intends to make a systemic risk determination, raising questions about whether Treasury will make a determination to authorize the program.

Systemic Risk Determinations Authorized FDIC Guarantees That Regulators Determined Were Needed to Avert Adverse Effects on Financial and Economic Conditions

The Secretary of the Treasury’s three systemic risk determinations authorized FDIC guarantees that FDIC, the Federal Reserve, and Treasury determined were needed to avoid or mitigate further serious adverse effects on already deteriorating financial and economic conditions. Treasury invoked the exception so that FDIC could provide assistance to Wachovia and its insured institution subsidiaries, the banking industry as a whole (through TLGP), and Citigroup and its insured institution subsidiaries.

FDIC Protection against Large Losses on Wachovia Assets Was Intended to Facilitate an Orderly Sale to Citigroup and Avert a Resolution with Potentially Systemic Consequences

In describing the basis for the first systemic risk determination in September 2008, Treasury, FDIC, and the Federal Reserve noted that mounting problems at Wachovia could have led to a failure of the firm, which in turn could have exacerbated the disruption in the financial markets. At the time, the failures and near-failures of several large institutions had increased stress in key funding markets. As noted earlier, by late summer 2008, the potential ramifications of the financial crisis included the continued failure of financial institutions and further tightening of credit that would exacerbate the emerging global economic slowdown that was beginning to take shape. In this environment, many financial institutions, including Wachovia, were facing difficulties in raising capital and meeting their funding obligations. In its recommendation, FDIC said that the rapidly deteriorating financial condition of Wachovia Bank, N.A.—Wachovia’s largest bank subsidiary— was due largely to its portfolio of payment-option adjustable-rate mortgage (ARM) products, commercial real-estate portfolio, and weakened liquidity position. Over the first half of 2008, Wachovia had suffered more than $9 billion in losses due in part to mortgage-related asset losses and investors increasingly had become concerned about the firm’s prospects, given the worsening outlook for home prices and mortgage credit quality. In addition, during the week preceding Treasury’s determination, Wachovia’s stock price declined precipitously and the spreads on credit default swaps that provide protection against losses on Wachovia’s debt widened, indicating that investors considered a Wachovia default increasingly likely. FDIC consulted with Treasury and the Federal Reserve in conducting an analysis of Wachovia’s liquidity and determined that Wachovia would soon be unable to meet its funding obligations as a result of strains on its liquidity, particularly from projected outflows of deposits and retail brokerage accounts.

Treasury, FDIC, and the Federal Reserve Determined a Least-Cost Resolution of Wachovia Would Likely Exacerbate Market Strains

In considering actions to avert a Wachovia failure, Treasury determined that a least-cost resolution of Wachovia’s bank and thrift subsidiaries, without protecting creditors and uninsured depositors, could—in light of conditions in the financial markets and the economy at the time—weaken confidence and exacerbate liquidity strains in the banking system. FDIC could have effected a least-cost resolution of Wachovia Bank, N.A. through a depositor payoff or purchase and assumption transaction following appointment of FDIC as the receiver of the bank’s assets. FDIC and the Federal Reserve projected that either of these least-cost resolution options would have resulted in no cost to the deposit insurance fund, but that either option likely would have imposed significant losses on subordinated debtholders and possibly senior note holders. In addition, Treasury, the Federal Reserve, and FDIC expected these resolution options to impose losses on foreign depositors, a significant funding source for several large U.S. institutions. Their concerns over the possible significant losses to creditors holding Wachovia subordinated debt and senior debt were reinforced by the recent failure of Washington Mutual, a large thrift holding company. According to Treasury’s determination, under the least- cost resolution of Washington Mutual, senior and subordinated debtholders of the holding company and its insured depository subsidiaries suffered large losses. Treasury, FDIC, and the Federal Reserve expressed concern that imposing similarly large losses on Wachovia’s creditors and foreign depositors could intensify liquidity pressures on other U.S. banks, which were vulnerable to a loss of confidence by creditors and uninsured depositors (including foreign depositors), given the stresses already present in the financial markets at that time. According to FDIC and Federal Reserve documents, Wachovia’s sudden failure would have led to investor concern about direct exposures of other financial institutions to Wachovia. Furthermore, a Wachovia failure also could have led investors and other market participants to doubt the financial strength of other institutions that might be seen as similarly situated. In particular, the agencies noted that a Wachovia failure could intensify pressures on other large banking organizations that, like Wachovia, reported they were well capitalized but continued to face investor concerns about deteriorating asset quality. At the time of the Wachovia determination, the Emergency Economic Stabilization Act had not yet been passed and, thus, the authorities under that law to create the Troubled Asset Relief Program (TARP) were not available to help mitigate these effects. Furthermore, a least-cost resolution of Wachovia, N.A. could have negatively affected the broader economy, because with banks experiencing reduced liquidity and increased funding costs, they would be less willing to lend to businesses and households.

In recommending a systemic risk determination, the Federal Reserve and FDIC described the extent of Wachovia’s interdependencies and the potential for disruptions to markets in which it played a significant role. The Federal Reserve listed the top financial entities exposed to Wachovia, noting that mutual funds were prominent among these counterparties. In addition, FDIC expressed concern that a Wachovia failure could result in losses for mutual funds holding its commercial paper, accelerating runs on those and other mutual funds. The Federal Reserve also noted that Wachovia was a major participant in the full range of major domestic and international clearing and settlement systems and that a least-cost resolution would likely have raised some payment and settlement concerns.

Treasury, FDIC, and the Federal Reserve concluded that FDIC assistance under the systemic risk exception could avert the potential systemic consequences of a least-cost resolution of Wachovia’s bank and thrift subsidiaries. In particular, they determined that authorizing FDIC guarantees to protect against losses to Wachovia’s uninsured creditors would avoid or mitigate the potential for serious adverse effects on the financial system and the economy by facilitating the acquisition of Wachovia’s banking operations by Citigroup.

FDIC Loss-Sharing Agreement Intended to Avert Likely Additional Market Strains from a Least-Cost Resolution

On September 29, 2008, pursuant to Treasury’s systemic risk determination, FDIC announced that it had agreed to provide protection against large losses on a fixed pool of Wachovia assets to facilitate the orderly sale of Wachovia’s banking operations to Citigroup and avert an imminent failure that might exacerbate the serious strains then affecting the financial markets, financial institutions, and the economy. On September 28, 2008, Citigroup and Wells Fargo both submitted bids to FDIC to acquire Wachovia’s banking operations with FDIC open bank assistance in the form of loss sharing on Wachovia assets. The Citigroup and Wells Fargo bids differed in terms of the amount of losses each proposed to absorb and the result of the bidding process held by FDIC was the acceptance of Citigroup’s bid. After agreeing with FDIC to a loss- sharing agreement on selected Wachovia assets, Citigroup announced that it would acquire Wachovia’s banking operations for $2.2 billion and assume the related liabilities, including senior and subordinated debt obligations and all of Wachovia’s uninsured deposits. Under the agreement, Citigroup agreed to absorb the first $42 billion of losses on a $312 billion pool of loans and FDIC agreed to assume losses beyond that. To compensate FDIC for its assumption of this risk, Citigroup agreed to grant FDIC $12 billion in preferred stock and warrants. A few days after the announcement of the proposed Citigroup acquisition, Wachovia announced that it would instead merge with Wells Fargo in a transaction that would include all of Wachovia’s operations and, in contrast to the bids submitted days earlier by Citigroup and Wells Fargo, require no FDIC assistance. As a result, the FDIC loss-sharing agreement on Wachovia assets was not implemented and no assistance was provided under the systemic risk exception.

Although the loss-sharing agreement never took effect, the announcement of the Citigroup acquisition and loss-sharing agreement may have helped to avert a Wachovia failure with potential systemic consequences. While acknowledging that isolating the impact of FDIC’s assistance from other factors is difficult, Treasury and FDIC officials with whom we spoke said that one measure of the success of the loss-sharing agreement was that Wachovia was able to remain open and meet its funding obligations on Monday, September 29, 2008. In particular, the determination and the announcement of Citigroup’s assumption of debt and deposit liabilities of Wachovia and its insured bank and thrift subsidiaries may have helped to allay the concerns of creditors and depositors that might otherwise have withdrawn liquidity support. As Wachovia did not fail, the extent to which a Wachovia failure would have had adverse effects on financial stability is not known.

TLGP Determination Was Intended to Help Restore Confidence and Liquidity to the Banking System, but Highlights Need for Clarification of the Systemic Risk Exception

In describing the basis for the second systemic risk determination, which authorized TLGP, Treasury, FDIC, and the Federal Reserve said that disruptions in credit markets posed a threat to the ability of many institutions to fund themselves and lend to consumers and businesses. In a memorandum provided to Treasury, FDIC noted that the reluctance of banks and investment managers to lend to other banks and their holding companies made finding replacement funding at a reasonable cost difficult for these financial institutions. The TED spread—a key indicator of credit risk that gauges the willingness of banks to lend to other banks—peaked at more than 400 basis points in October 2008, likely indicating an increase in both perceived risk and in risk aversion among investors (see fig. 2). In addition to disruptions in interbank lending, financial institutions also faced difficulties raising funds through commercial paper and asset- backed securitization markets. The resulting credit crunch made the financing on which businesses and individuals depend increasingly difficult to obtain. In addition, FDIC was concerned that large outflows of uninsured deposits could strain many banks’ liquidity. According to FDIC officials with whom we spoke, they were not tracking outflows of these deposits, but relied on anecdotal reports from institutions and the regulators serving as their primary supervisors.

In light of the liquidity strains many institutions faced, Treasury, FDIC, and the Federal Reserve determined that resolving institutions on a bank-by- bank basis in compliance with least-cost requirements would result in adverse impacts on financial stability and the broader economy. In its recommendation letter, FDIC concluded that the threat to the market for bank debt was a systemic problem that threatened the stability of a significant number of institutions, thereby increasing the potential for failures of these institutions and losses to the Deposit Insurance Fund. The Federal Reserve reasoned, among other things, that the failures and least- cost resolutions of a number of institutions could impose unexpected losses on investors and further undermine confidence in the banking system, which already was under extreme stress. Treasury concurred with FDIC and the Federal Reserve in determining that relying on the least-cost resolution process would not sufficiently address the systemic threat to bank funding and the broader economy.

Treasury concluded that FDIC actions under a systemic risk exception would avoid or mitigate adverse effects that would have resulted if assistance were provided subject to the least cost rules. Specifically, Treasury, FDIC, and the Federal Reserve advised that certain FDIC debt and deposit guarantees—otherwise subject to the prohibition against use of the Deposit Insurance Fund to protect uninsured depositors and creditors who are not insured depositors—could address risk aversion among institutions and investors that had become reluctant to provide liquidity to financial institutions and their holding companies. In a memorandum describing the basis for TLGP determination, Treasury explained the need for emergency actions in the context of a recent agreement among the United States and its G7 colleagues to implement a comprehensive action plan to provide liquidity to markets and prevent the failure of any systemically important institution, among other objectives. To implement the G7 plan, several countries had already announced programs to guarantee retail deposits and new debt issued by financial institutions. Treasury noted that if the United States did not take similar actions, global market participants might turn to institutions and markets in countries where the perceived protections were the greatest.

TLGP Determination Highlights the Need for Clarification of Requirements and Authorized Assistance under the Systemic Risk Exception

Some have noted that under a possible reading of the exception, the statute may authorize assistance only to particular institutions, based on those institutions’ specific problems, not, as was done in creating TLGP, systemic risk assistance based on problems affecting the banking industry as a whole. Treasury, FDIC, and the Federal Reserve considered this and other legal issues in recommending and making TLGP determination. The agencies believe the statute could have been drafted more clearly and that it can be interpreted in different ways. They concluded, however, that under a permissible interpretation, assistance may be based on industry- wide concerns. They also concluded that a systemic risk determination waives all of the normal statutory restrictions on FDIC assistance and then creates new authority to provide assistance, both as to the types of aid that may be provided and the entities that may receive it. Under this reading, the agencies believe the statutory criteria were met in the case of TLGP and that the assistance was authorized.

We examined these issues as part of our review of the basis of the systemic risk determinations made to date. As detailed in appendix II, the recent financial crisis is the first time the agencies have relied on the systemic risk exception since its enactment in 1991, and no court to date has ruled on when or how it may be used. We found there is some support for the agencies’ position that the exception authorizes assistance of some type under TLGP facts, as well as for their position that the exception permits assistance to the entities covered by this program. There are a number of questions concerning these interpretations, however. In the agencies’ view, for example, some of the statutory provisions are ambiguous. What is clear, however, that the systemic risk exception overrides important statutory restrictions designed to minimize costs to the Deposit Insurance Fund, and in the case of TLGP, that the agencies used it to create a broad-based program of direct FDIC assistance to institutions that had never before received such relief—”healthy” banks, bank holding companies, and other bank affiliates. Because application of the systemic risk exception raises novel legal and policy issues of significant public interest and importance, and because of the need for clear direction to the agencies in a time of financial crisis, the requirements and the assistance authorized under the systemic risk exception may require clarification by Congress.

FDIC Established TLGP to Promote Confidence and Liquidity in the Banking System

In October 2008, FDIC created TLGP to complement the TARP Capital Purchase Program and the Federal Reserve’s Commercial Paper Funding Facility and other liquidity facilities in restoring confidence in financial institutions and repairing their capacity to meet the credit needs of American households and businesses. TLGP’s Debt Guarantee Program (DGP) was designed to improve liquidity in term-funding markets by guaranteeing certain newly issued senior unsecured debt of financial institutions and their holding companies. According to FDIC officials, by guaranteeing payment of these debt obligations, DGP was intended to address the difficulty that creditworthy institutions were facing in replacing maturing debt because of risk aversion in the markets. TLGP’s Transaction Account Guarantee Program (TAGP) also was created to stabilize an important source of liquidity for many financial institutions. TAGP temporarily extended an unlimited deposit guarantee to certain non- interest-bearing transaction accounts to assure holders of the safety of these deposits and limit further outflows. By facilitating access to borrowed funds at lower rates, Treasury, FDIC, and the Federal Reserve expected TLGP to free up funding for banks to make loans to creditworthy businesses and consumers. Furthermore, by promoting stable funding sources for financial institutions, they intended TLGP to help avert bank and thrift failures that would impose costs on the insurance fund and taxpayers and potentially contribute to a worsening of the crisis.

TLGP Requirements Were Structured to Prevent Costs to the Insurance Fund

FDIC structured TLGP requirements to provide needed assistance to insured banks while avoiding costs to the deposit insurance fund. According to FDIC officials, in designing TLGP, FDIC sought to achieve broad participation to avoid the perception that only weak institutions participated and to help ensure collection of fees needed to cover potential losses. Initially, all eligible institutions, which included insured depository institutions, their holding companies, and qualified affiliates, were enrolled in TLGP for 30 days at no cost and only those that participated in DGP or TAGP (or both) after the opt-out date became subject to fee assessments. Table 1 provides additional details related to TLGP features and requirements. As of March 31, 2009, among depository institutions with assets over $10 billion, 92 percent and 94 percent had opted into DGP and TAGP, respectively. According to one regulatory official, this high participation rate indicated that many large institutions judged the benefits of the program to outweigh fee and other costs. However, while seeking to encourage broad participation, TLGP was not intended to prop up nonviable institutions, according to FDIC officials. The TLGP rule allowed FDIC to prospectively cancel eligibility for DGP if an institution had weak supervisory ratings. According to FDIC officials, some financial institutions were privately notified by their regulatory supervisors that they were not eligible to issue TLGP-guaranteed debt. In addition, FDIC required all parts of a holding company to make the same decision about TLGP participation to prevent an entity from issuing guaranteed debt through its weakest subsidiary.

As of December 31, 2009, FDIC had collected $11.0 billion in TLGP fees and surcharges and incurred claims of $6.6 billion on TLGP guarantees. All of the claims to date, except for one $2 million claim under DGP, have come from TAGP, under which FDIC has collected $639 million in fees. Since the creation of TLGP, bank failures have been concentrated among small banks (assets under $10 billion), which as a group have not been significant participants in DGP. Although the high number of small bank failures has resulted in higher-than-expected costs under TAGP, FDIC officials still expect total TLGP fees collected to exceed the costs of the program. At the end of the program, FDIC will be permitted to account for any excess TLGP fees as income to the deposit insurance fund. If a supportable and documented analysis demonstrates that TLGP assets exceed projected losses, FDIC may recognize income to the deposit insurance fund prior to the end of the program. As noted earlier, in the event that TLGP results in losses to the deposit insurance fund, FDIC would be required to recover these losses through one or more special assessments.

FDIC Guarantees Lowered Certain Funding Costs and Some Indicators Suggest Improvements in the Credit Markets

Since TLGP was creted in Octoer 200, FDIC has extended oth component of the progrm. In Mrch 2009, FDIC extended the finl dte for new det issuance nder DGP from Jne 30, 2009, to Octoer 31, 2009, nd in Aust 2009, extended the TAGP for 6 month, throgh Jne 30, 2010. FDIC offici with whom we poke said they consulted with other regtor in determining th epte temic rik determintion was not reqired for thee extenion. Thee offici noted tht economic conditiond improved t the time of the extenion, but hd not yet retrned to precri condition. FDIC noted the need to ensure n orderly phase-ot of TLGP assnce nd otlined certin higher fee reqirement for intittion chooing to contine prticiption past the originl end dte. Art of the DGP extenion, FDIC eablihed new surchrge eginning on April 1, 2009, for certin det issued prior to the originl Jne 2009 dedline nd for ll det issued nder the extenion. In extending TAGP, FDIC nnonced tht eligile intittion not opting ot of the 6-month extenion wold subject to higher fee based on the intittion’ rik ctegory as determined y regtor assssment. effective in improving short-term and intermediate-term funding markets. In addition, FDIC officials with whom we spoke said that although they do not track outflows of deposits of transaction accounts covered under TAGP, several institutions have told them that TAGP was helpful in stemming such outflows.

DGP conclded on Octoer 31, 2009, for mot entitierticipting in the progrm. To frther ensure n orderly phase-ot of the progrm, FDIC eablihed limited emergency guantee fcility throgh which eligile entitie (pon ppliction nd FDIC pprovl) cold issue guanteed det throgh April 30, 2010, subject to minimnnualized assssment of 300 bas point. In April 2010, FDIC’ Bord of Director pproved n interim rle to extend the TAGP ntil Decemer 31, 2010, nd give the Bord dicretion to extend the progrm to the end of 2011, if necessary.

Moreover, some market observers have commented that FDIC’s assumption of risk through the debt guarantees enabled many institutions to obtain needed funding at significantly lower costs. Eligible financial institutions and their holding companies raised more than $600 billion under DGP, which concluded on October 31, 2009, for most participating entities. Notably, several large financial holding companies each issued tens of billions of dollars of TLGP-guaranteed debt and most did not issue senior unsecured debt outside DGP before April 2009. Although determining the extent to which FDIC guarantees lowered debt costs is difficult, a U.S. government guarantee significantly reduces the risk of loss and accordingly, and would be expected to substantially reduce the interest rate lenders charge for TLGP-guaranteed funds. By comparing yields on TLGP-guaranteed debt to yields on similar debt issued without FDIC guarantees, some market observers have estimated that FDIC guarantees lowered the cost of certain debt issues by more than 140 basis points. To the extent that TLGP helped banking organizations to raise funds during a very difficult period and to do so at substantially lower cost than would otherwise be available, it may have helped improve confidence in institutions and their ability to lend. However, some market observers have expressed concern that the large volume of issuance under TLGP could create difficulties associated with rolling over this debt in a few years when much of this debt matures in a short time frame. According to one financial analyst with whom we spoke, potential difficulties associated with rolling over this debt could be mitigated by any improvements in other funding markets, such as asset-backed securitization markets.

FDIC Protection against Large Losses on Citigroup Assets Was Part of a Package of Government Assistance Intended to Forestall a Resolution with Potential Systemic Consequences

In describing the basis for the third systemic risk determination, Treasury, FDIC, and the Federal Reserve cited concerns similar to those discussed in connection with the Wachovia determination. During November 2008, severe economic conditions persisted despite new Federal Reserve liquidity programs and the announcements of the Treasury’s Capital Purchase Program and FDIC’s TLGP. Similar to Wachovia, Citigroup had suffered substantial losses on mortgage-related assets and faced increasing pressures on its liquidity as investor confidence in the firm’s prospects and the outlook for the economy declined. On Friday, November 21, 2008, Citigroup’s stock price fell below $4, down from over $14 earlier that month. In their memoranda supporting their recommendations for a systemic risk determination, FDIC and the Federal Reserve expressed concern that Citigroup soon would be unable to meet its funding obligations and expected deposit outflows. FDIC concluded that the government funding support otherwise available to Citigroup through the Federal Reserve’s lending programs such as the Commercial Paper Funding Facility and the Primary Dealer Credit Facility and TLGP provided the firm with short-term funding relief but would not be sufficient to help Citigroup withstand the large deposit outflows regulators expected if confidence in the firm continued to deteriorate.

Treasury, FDIC, and the Federal Reserve Concluded That a Least-Cost Resolution of Citigroup’s Insured Depository Institution Subsidiaries Would Likely Exacerbate Market Strains

As was the case with Wachovia, Treasury, FDIC, and the Federal Reserve were concerned that the failure of a firm of Citigroup’s size and interconnectedness would have systemic implications. They determined that resolving the company’s insured institutions under the least-cost requirements likely would have imposed significant losses on Citigroup’s creditors and on uninsured depositors, thus threatening to further undermine confidence in the banking system. According to Treasury, a least-cost resolution would have led to investor concern about the direct exposures of other financial firms to Citigroup and the willingness of U.S. policymakers to support systemically important institutions, despite Treasury’s recent investments in Citigroup and other major U.S. banking institutions. In its recommendation to Treasury, the Federal Reserve listed the banking organizations with the largest direct exposures to Citigroup and estimated that the most exposed institution could suffer a loss equal to about 2.6 percent of its Tier 1 regulatory capital. Furthermore, Treasury, FDIC, and the Federal Reserve were concerned that a failure of Citigroup, which reported that it was well-capitalized (as did Wachovia at the time of the first systemic risk determination), could lead investors to reassess the riskiness of U.S. commercial banks more broadly. In comparison to Wachovia, Citigroup had a much larger international presence, including more than $500 billion of foreign deposits—compared to approximately $30 billion for Wachovia. Given Citigroup’s substantial international presence, imposing losses on uninsured foreign depositors under a least-cost framework could have intensified global liquidity pressures and increased funding pressures on other institutions with significant amounts of foreign deposits. For example, this could have caused investors to raise sharply their assessment of risks of investing in U.S. banking organizations, making raising capital and other funding more difficult.

In addition to the potential serious adverse effects on credit markets, Treasury, FDIC, and the Federal Reserve expressed concern that a Citigroup failure could disrupt other markets in which Citigroup was a major participant. Citigroup participated in a large number of payment, settlement, and counterparty arrangements within and outside the United States. The Federal Reserve expressed concern that Citigroup’s inability to fulfill its obligations in these markets and systems could lead to widespread disruptions in payment and settlement systems worldwide, with important spillover effects back to U.S. institutions and other markets. Citigroup was a major player in a wide range of derivatives markets, both as a counterparty for over-the-counter trades and as a broker and clearing firm for trades on exchanges. If Citigroup had failed, many of the firm’s counterparties might have faced difficulties replacing existing contracts with Citigroup, particularly given concerns about counterparty credit risk at the time.

Treasury, FDIC, and the Federal Reserve determined that FDIC assistance under the systemic risk exception, which would complement other U.S. federal assistance and TARP programs, would promote confidence in Citigroup. Specifically, they determined that if the systemic risk exception were invoked, FDIC could provide guarantees that would help protect Citigroup from outsize losses on certain assets and thus reduce investor uncertainty regarding the potential for additional losses to weaken Citigroup. In addition, such actions could help to reassure depositors and investors that the U.S. government would take necessary actions to stabilize systemically important U.S. banking institutions.

Assistance to Citigroup Included a Loss-Sharing Agreement and Capital Infusion Intended to Restore Confidence and Promote Financial Stability

On November 23, 2008, Treasury, FDIC, and the Federal Reserve announced a package of assistance to Citigroup, including a loss-sharing agreement on a fixed pool of Citigroup’s assets, to help restore confidence in the firm and maintain financial stability. By providing protection against large losses on these assets, regulators hoped to promote confidence among creditors and depositors providing liquidity to the firm to avert a least-cost resolution with potential systemic risk consequences. In particular, the loss-sharing agreement limited the potential losses Citigroup might suffer on a fixed pool of approximately $300 billion of loans and securities backed by residential and commercial real estate and other such assets. Under the final agreement executed on January 15, 2009, Citigroup agreed to absorb the first $39.5 billion in losses plus 10 percent of any remaining losses incurred. Ninety percent of covered asset losses exceeding $39.5 billion would be borne by Treasury and FDIC, with maximum guarantee payments capped at $5 billion and $10 billion, respectively. In addition, if all of these loss protections were exhausted, the Federal Reserve Bank of New York committed to allow Citigroup to obtain a nonrecourse loan equal to the aggregate value of the remaining covered asset pool, subject to a continuing 10 percent loss-sharing obligation of Citigroup. Citigroup issued FDIC and Treasury approximately $3 billion and $4 billion of preferred stock, respectively, for bearing the risk associated with the guarantees. The Federal Reserve loan, if extended, would have borne interest at the overnight index swap rate plus 300 basis points. Citigroup also received a $20 billion capital infusion from the TARP’s Targeted Investment Program, in addition to the initial $25 billion capital infusion received from TARP’s Capital Purchase Program in October 2008. In addition, the agreement subjected Citigroup to specific limitations on executive compensation and dividends during the loss share period.

FDIC Assistance May Have Helped to Ensure Continued Access to Funding for Citigroup

Isolating the impact of FDIC assistance to Citigroup is difficult, but according to Treasury and FDIC, the package of assistance provided by regulators may have helped to allow Citigroup to continue operating by encouraging private sector sources to continue to provide liquidity to Citigroup during the crisis. According to one FDIC official, one measure of success was that Citigroup could do business in Asia the business day following the announcement. With the package of assistance, regulators hoped to improve the confidence of creditors and certain depositors, facilitating Citigroup’s funding. Changes in the market’s pricing of Citigroup’s stock and its default risk, as measured by credit default swap spreads, indicate that the November 23, 2008, announcement boosted market confidence in the firm, at least temporarily. From a closing price of $3.77 on Friday, November 21, 2008, Citigroup’s common stock price rose 58 percent on Monday, November 24 and more than doubled by the end of the week. However, market confidence in Citigroup fell sharply again in early 2009 before the company’s stock price recovered and stabilized in spring 2009.

On December 23, 2009, Citigroup announced that it had reached an agreement with FDIC, the Federal Reserve Bank of New York, and Treasury to terminate the loss-sharing and residual financing agreement. As part of the termination agreement, Citigroup agreed to pay a $50 million termination fee to the Federal Reserve. As of September 30, 2009, Citigroup reported that it had recognized $5.3 billion of losses on the pool of assets covered by the loss-sharing agreement. These losses did not reach the thresholds that would trigger payments by Treasury or FDIC. In July 2009, the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) announced plans to audit the asset guarantees provided to Citigroup. According to SIGTARP, this audit is to examine why the guarantees were provided, how the guaranteed assets were structured, and whether Citigroup’s risk controls were adequate to prevent government losses. At the close of this review, the SIGTARP review was ongoing.

Systemic Risk Determinations and Related Federal Assistance Raise Concerns about Moral Hazard and Market Discipline That May Be Addressed by Potential Regulatory Reforms

While the systemic risk determinations and associated federal assistance may have helped to contain the crisis by mitigating potential systemic adverse effects, they may have induced moral hazard—encouraging market participants to expect similar emergency actions in future crises, thereby weakening their incentives to properly manage risks and also creating the perception that some firms are too big to fail. Federal assistance required for large and important institutions, such as non-bank holding companies, whose activities could affect the financial system, also highlighted gaps in the current regulatory regime, including inconsistent supervision and regulatory standards and lack of resolution authority for these institutions. Regulators, the Administration and Congress currently are considering financial regulatory reform proposals that could help address these concerns. Reforms that would enhance the supervision of financial institutions—particularly large financial holding companies— whose market discipline is likely to have been weakened by the recent exercises of the systemic risk exceptions are essential.

Federal Assistance Could Exacerbate Moral Hazard and Reduce Potential for Market Discipline Particularly for the Largest U.S. Financial Institutions

While the federal assistance authorized by the systemic risk determinations may have helped to contain the financial crisis by mitigating potential adverse systemic effects that would have resulted from traditional FDIC assistance, they may have exacerbated moral hazard, particularly for large financial institutions. According to regulators and some economists, the expansion of deposit insurance under TAGP, in which most insured depository institutions of all sizes participated, could weaken incentives for newly protected, larger depositors to monitor their banks, and in turn banks may be more able to engage in riskier activities. According to some economists, the higher the deposit insurance guarantee, the greater the risk of moral hazard. In principle, deposit insurance helps prevent bank runs by small depositors, while lack of insurance encourages (presumably better informed) large depositors to protect their deposits by exerting discipline on risk taking by banks.

Unlike the broad participation in TAGP, the majority of institutions that participate in DGP are large financial institutions. In addition, according to FDIC data, most of the senior unsecured debt under DGP has been issued by the largest U.S. financial institutions. Market observers with whom we spoke said that small banks did not participate in DGP as generally they primarily rely on deposits for funding. The bank debt guarantees, according to some economists, allow large financial institutions to issue debt without regard for differences in their risk profiles and can weaken the incentives for creditors to monitor bank performance and exert discipline against excessive risk taking for these institutions. In general, some economists said that to help mitigate moral hazard, it is important to specify when the extra deposit insurance and debt guarantee programs will end. Further, while recognizing that uncertainty about the duration of the crisis makes it difficult to specify timetables for phasing out guarantees, some economists said it is important to provide a credible “exit strategy” to prevent further disruption in the financial markets when withdrawing government guarantees. In addition, some economists noted that while government guarantees can be withdrawn once the crisis abates, a general perception may persist that a government guarantee always will be made available during a crisis—thus perpetuating the risk for moral hazard.

Similarly, while the assistance to open banks authorized by the systemic risk determinations may have helped to contain the crisis by stabilizing the large and other financial institutions and mitigating potential systemic adverse effects, it also may have exacerbated moral hazard. According to regulators and market observers, assistance to open banks may weaken the incentives of large uninsured depositors, creditors, and investors to discipline large complex financial institutions deemed too big to fail. Federal Reserve Chairman Bernanke stated in March 2009 to the Council on Foreign Relations that the belief of market participants that a particular institution is considered too big to fail has many undesirable effects. He explained such perceptions reduce market discipline, encourage excessive risk taking by the firm, and provide artificial incentives for firms to grow. He also noted these beliefs can create an unlevel playing field, in which smaller firms may not be regarded as having implicit government support. Similarly, others have noted how such perceptions may encourage risk taking—for example, that large financial institutions are given access to the credit markets at favorable terms without consideration of the institutions’ risk profile because creditors and investors believe their credit exposure is reduced since they believe the government will not allow these firms to fail.

Limitations in Financial Regulatory Framework Restrict Regulators’ Ability to Mitigate Impact of Weakened Incentives but Some Reform Proposals May Help Address These Concerns

Although regulators’ use of the systemic risk exception may weaken incentives of institutions to properly manage risk, the financial regulatory framework could serve an important role in restricting the extent to which they engage in excessive risk-taking activities as a result of weakened market discipline. Responding to the recent financial crisis, recent actions by the Federal Reserve as well as proposed regulatory reform and new FDIC resolution authority could help address concerns raised about the potential conduct ( to monitor and control risks) of institutions receiving federal assistance or subject to the systemic risk determinations.

Enhanced Supervision of Systemically Important Institutions

In an effort to mitigate moral hazard and weakened market discipline for large complex financial institutions including those that received federal assistance, regulators, the administration, and Congress are considering regulatory reforms to enhance supervision of these institutions. These institutions not only include large banks but also nonbank institutions. In the recent crisis, according to a testimony by FDIC Chairman Bair, bank holding companies and large nonbank affiliates have come to depend on the banks within their organizations as a source of funding. Bank holding companies must, under Federal Reserve regulations, serve as the source of strength for their insured institution subsidiaries. Subject to the limits of sections 23A and 23B of the Federal Reserve Act, however, bank holding companies and their nonbank affiliates may rely on the depository institution for funding. Also, according to regulators, institutions that were not bank holding companies (such as large thrift holding companies, investment banks, and insurance organizations) were responsible for a disproportionate share of the financial stress in the markets in the past 2 years and the lack of a consistent and coherent regulatory regime for these institutions helped mask problems until they were systemic and gaps in the regulatory regime constrained the government’s ability to deal with them once they emerged.

Legislation has been proposed to create enhanced supervision and regulation for any systemically important financial institution, regardless of whether the institution owns an insured depository institution. The proposals would establish a council chaired by the Secretary of the Treasury with voting members comprising the chairs of the federal financial regulators which would oversee systemic risk and help identify systemically important companies. An institution could be designated “systemically important” if material financial distress at the firm could threaten financial stability or the economy. Systemically important institutions would be regulated by the Federal Reserve under enhanced supervisory and regulatory standards and stricter prudential standards.

Regulators and market observers generally agree that these systemically important financial institutions should be subject to progressively tougher regulatory standards to hold adequate capital and liquidity buffers to reflect the heightened risk they pose to the financial system. They also generally agree that systemically important firms should face additional capital charges based both on their size and complexity. Such capital charges (and perhaps also restrictions on leverage and the imposition of risk-based insurance premiums on systemically important or weak insured depository institutions and risky activities) could help ensure that institutions bear the costs of growth and complexity that raise systemic concerns. Regulators and market observers believe that imposing systemic risk regulation and its associated safeguards will strengthen the ability of these firms to operate in stressed environments while the associated costs can provide incentives to firms to voluntarily take actions to reduce the risks they pose to the financial system. Under legislative proposals, these institutions also would be subject to a prompt corrective action regime that would require the firm or its supervisors to take corrective actions as the institutions’ regulatory capital level or other measures of financial strength declined, similar to the existing prompt corrective action regime for insured depository institutions under the FDI Act.

Regulators also are considering regulatory reforms to improve the overall risk management practices of systemically important institutions. The Federal Reserve has proposed standards for compensation practices across all banking organizations it supervises to encourage prudent risk taking by creating incentives focusing on long-term rather than short-term performance. Regulators noted that compensation practices that create incentives for short-term gains may overwhelm the checks and balances meant to mitigate excessive risk taking. In its proposal for financial regulatory reform, Treasury recommended that systemically important financial institutions be expected to put in place risk management practices commensurate with the risk, complexity, and scope of their operations and be able to identify firmwide risk concentrations (such as credit, business lines, liquidity) and establish appropriate limits and controls around these concentrations. Also, under Treasury’s proposal, to measure and monitor risk concentrations, these institutions would be expected to be able to identify and report aggregate exposures quickly on a firmwide basis.

Regulators also have indicated the need for measures to improve their oversight of risk management practices by these institutions. In our prior work on regulatory oversight of risk management at selected large institutions, we found that oversight of institutions’ risk management systems before the crisis illustrated some limitations of the current regulatory system. For example, regulators were not looking across groups of institutions to effectively identify risks to overall financial stability. In addition, primary, functional, and holding company regulators faced challenges aggregating certain risk exposures within large, complex financial institutions. According to testimony by a Federal Reserve official, the recent crisis highlighted the need for a more comprehensive and integrated assessment of activities throughout bank holding companies—a departure from the customary premise of functional regulation that risks within a diversified organization can be managed properly through supervision focused on individual subsidiaries within the firm. Accordingly, the bank supervisors, led by the Federal Reserve, recently completed the Supervisory Capital Assessment Program, which reflects some of the anticipated changes in the Federal Reserve’s approach to supervising the largest banking organizations. The Supervisory Capital Assessment Program involved aggregate analyses of the 19 largest bank holding companies, which according to Federal Reserve testimony, accounted for a majority of the assets and loans within the financial system. Bank supervisors evaluated on a consistent basis the expected performance of these firms under baseline and more-adverse-than- expected scenarios, drawing on individual firm information and using independently estimated outcomes. In addition, according to the agency’s officials, the Federal Reserve is creating an enhanced quantitative surveillance program for the largest and most complex firms, that will use supervisory information, firm-specific data analysis, and market-based indicators to identify emerging systemic risks as well as risks to specific firms.

Some economists argue that a formal designation of systemically important institutions would have significant, negative competitive consequences for other firms and could encourage designated firms to take excessive risk because they would be perceived to be too big to fail. Instead some argue that a market stability regulator should be authorized to oversee all types of financial markets and all financial services firms, whether otherwise regulated or unregulated. Market observers also point out factors that complicate such determinations and make maintaining an accurate list of such institutions difficult. Aside from asset size and degree of leverage, they include degree of interconnectivity to other financial institutions, risks of activities in which they engage, nature of compensation practices, and degree of concentration of financial assets and activities. Moreover, maintaining a list would require regular monitoring in order to ensure the list was kept up to date, and some risky institutions would likely go unidentified, at least for a time. Such designation also would likely depend on factors outside the firm, such as economic and financial conditions. However, supervisors would presumably be doing much of the monitoring activity regardless of the existence of a public list, and they would have to establish standards, including assumptions regarding the economic and financial circumstances assumed when making such designations. It is important for Congress and regulators to subject systemically important institutions to stricter regulatory requirements and oversight in order to restrict excessive risk-taking activities as a result of weakened market discipline particularly after the use of federal assistance during the crisis to stabilize such institutions.

Resolution Authority for Systemically Important Institutions

The recent crisis also highlighted how a lack of a resolution authority for failing bank holding companies including those subject to the systemic risk determinations as well as nonbank financial firms such as Bear Stearns, Lehman Brothers, and American International Group, Inc. (AIG), complicated federal government responses. For example, regulators invoked the systemic risk exception to assist bank holding companies and savings and loan holding companies to prevent systemic disruptions in the financial markets and provided emergency funding to AIG, and in doing so potentially contributed to a weakening of incentives at these institutions and similarly situated large financial institutions to properly manage risks. According to regulators, the lack of a resolution authority for systemically important institutions also contributes to a belief by market participants that the government will not allow these institutions to fail and thereby weakens market discipline. Proposals for consideration by Congress include providing federal resolution authority for large financial holding companies deemed systemically important. One purpose of this authority would be to encourage greater market discipline and limit moral hazard by forcing market participants to realize the full costs of their decisions. In order to achieve its intended purpose, the use of a new resolution authority must be perceived by the market to be credible. The authority would need to provide for a regime to resolve systemically important institutions in an orderly manner when the stability of the financial system is threatened. As noted in our prior work, a regulatory system should have adequate safeguards that allow financial institution failures to occur while limiting taxpayers’ exposure to financial risk while minimizing moral hazard.

Regulators and market observers generally agree that a credible resolution authority to resolve a distressed systemically important institution in an orderly manner would help to ensure that no bank or financial firm would be too big to fail. Such authority would encourage market discipline if it were to provide for the orderly allocation of losses to risk takers such as shareholders and unsecured creditors, and allow for the replacement of senior management. It also should help to maintain the liquidity and key activities of the organization so that the entity could be resolved in an orderly fashion without disrupting the functioning of the financial system. Unlike the statutory powers that exist for resolving insured depository institutions, the current bankruptcy framework available to resolve large complex nonbank financial entities and financial holding companies was not designed to protect the stability of the financial system. Without a mechanism to allow for an orderly resolution for a failure of a systemically important institution, failures of such firms could lead to a wider panic as indicated by the problems experienced after the failure of such large financial companies as Lehman Brothers, and near failures of Bear Stearns and AIG.

Proposed new authority for resolution of a systemically important failing institution would provide for a receiver to resolve the institution in an orderly way. Government assistance such as loans, guarantees, or asset purchases would be available only if the institution is in government receivership. The receiver would have authority to operate the institution, enforce or repudiate its contracts, and pay its claims as well as remove senior management. In addition, shareholders and creditors to the firm would absorb first losses in the resolution. However, imposing losses on unsecured debt investors of large, interconnected, and systemically important firms might be inconsistent with maintaining financial stability during a crisis. In particular, faced with the potential failures of Wachovia and Citigroup, Treasury, FDIC, and the Federal Reserve concluded that the exercise of authority under the systemic risk exception was necessary because the failure of these firms would have imposed large losses on creditors and threatened to undermine confidence in the banking system. An effective resolution authority must properly balance the need to encourage market discipline with the need to maintain financial stability, in particular in a crisis scenario. One market observer argued that no such losses would be taken immediately by creditors because the objective of the resolution authority is to prevent a disorderly failure in which such creditors suffer immediate losses. Therefore an appropriate degree of flexibility would mean that some of an institution’s creditors might be protected, at least to some extent, against losses where doing so would be necessary to protect the stability of the financial system. Other features of the resolution authority would continue to promote market discipline even if some credit obligations were honored, because shareholders and senior management would still suffer losses. A regulatory official stated that the intertwining of functions among an institution’s affiliates can present significant issues when winding down the institution and recommended requirements that mandate greater functional autonomy of holding company affiliates. In addition, some economists and market observers also have recommended that regulators break up large institutions in resolution to limit a continuation of too-big-to-fail problems. That is, when a regulator assumes control of a troubled important financial institution, it should make reasonable efforts to break up the institution before returning it to private hands or to avoid selling it to another institution when the result would create a new systemically important institution. It is important for Congress and regulators to establish a credible resolution process to allow for an orderly resolution of a failed systemically important institution thereby helping to ensure that no bank or financial firm would be too big to fail.

Conclusions

The recent financial crisis underscored how quickly liquidity can deteriorate at a financial institution. As a result, regulators’ deliberations about whether to invoke the systemic risk exception often occurred under severe time constraints. Treasury, FDIC, and the Federal Reserve collaborated prior to making announcements intended to reassure the markets, but the lack of a determination after two of these announcements of planned FDIC assistance under the systemic risk exception heightened the risk that such actions will be undertaken without appropriate transparency and accountability. Specifically, such an announcement signals regulators’ willingness to provide assistance and may give rise to moral hazard. However, in cases where Treasury does not make a determination, FDI Act requirements for communication and documentation do not apply. Therefore, when a determination is not made along with the announced actions, Congress cannot be assured that Treasury’s reasoning would be open to the same scrutiny required in connection with a formal systemic risk determination. Furthermore, uncertainty in these situations can arise because there is no requirement for Treasury to communicate that it will not make a systemic risk determination for an announced action.

Our review of Treasury’s systemic risk determinations highlights that the announced FDIC actions were made to reduce strains on the deteriorating markets and to promote confidence and stability in the banking system. Regarding the systemic risk determinations, the regulators concluded that resolving the depository institutions at issue under the traditional least- cost approach would have worsened adverse conditions in the economy and in the financial system. While it is difficult to isolate the impact of those actions from other government assistance, the actions seem to have reassured investors and depositors at the particular banks and encouraged them to continue to provide liquidity, thereby allowing the banks to keep operating. In the case of TLGP, some regulators and market observers have attributed short-term benefits to FDIC guarantees on certain debt obligations, citing improved cost and availability of credit for many institutions.

However, with respect to TLGP determination, some have noted that under a possible reading of the systemic risk exception, the statute may authorize assistance only to particular institutions based on those institutions’ specific problems, not systemic risk assistance based on problems affecting the banking industry as a whole. Treasury, FDIC, and the Federal Reserve considered this and other legal issues in recommending and making TLGP determination. The agencies believe the statute could have been drafted more clearly and that it can be interpreted in different ways. They concluded, however, that under a permissible interpretation, assistance may be based on industry-wide concerns. They also concluded that a systemic risk determination waives all of the normal statutory restrictions on FDIC assistance and then creates new authority to provide assistance, both as to the types of aid that may be provided and the entities that may receive it. Under this reading, the agencies believe the statutory criteria were met in the case of TLGP and that the assistance was authorized. We examined these issues as part of our review of the basis of the systemic risk determinations made to date. We found there is some support for the agencies’ position that the exception authorized systemic risk assistance of some type under TLGP facts, as well as for their position that the exception permits assistance to the entities covered by this program. There are a number of questions concerning these interpretations, however. For example, the agencies agree that some of the statutory provisions are ambiguous. Because application of the systemic risk exception raises novel legal and policy issues of significant public interest and importance, and because of the need for clear direction to the agencies in a time of financial crisis, the requirements and assistance authorized under the systemic risk exception may require clarification by Congress.

Systemic risk assistance also raises long-term concerns about moral hazard and weakened market discipline, particularly for large complex financial institutions. This involves a trade-off between the short-term benefits to markets, the economy, and business and households of federal action and the long-term effects of any federal action on market discipline. While the financial regulatory framework can serve an important role in restricting excessive risk-taking activities as a result of weakened market discipline, the financial crisis revealed limitations in this framework. In particular, these limitations include inconsistent oversight of large financial holding companies (bank versus nonbank). Another limitation was a weakness in the risk management practices of these companies. Legislators and regulators currently are considering regulatory proposals to subject systemically important institutions, including those whose market discipline is likely to have been weakened by the recent exercises of the systemic risk exception, to stricter regulatory standards such as higher capital and stronger liquidity and risk management requirements. Furthermore, according to regulators, the lack of resolution authority for systemically important institutions contributes to a belief by market participants that the government will not allow these institutions to fail and thereby weakens incentives for market participants to monitor the risks posed by these institutions. Legislation has been proposed to expand resolution authority to large financial holding companies deemed systemically important that is intended to impose greater market discipline and limit moral hazard by forcing market participants to face significant costs from their risk-taking decisions. It is important for the use of a new resolution authority to be perceived by the market to be credible for it to help achieve the intended effects.

Matters for Congressional Consideration

To help ensure transparency and accountability in situations where FDIC, the Federal Reserve, and Treasury publicly announce intended emergency actions but Treasury does not make a systemic risk determination required to implement them, Congress should consider requiring Treasury to document and communicate to Congress the reasoning behind delaying or not making a determination.

Recent application of the systemic risk exception raises novel legal and policy issues, including whether the exception may be invoked based only on the problems of particular institutions or also based on problems of the banking industry as a whole, and whether and under what circumstances assistance can be provided to “healthy” institutions, bank holding companies, and other bank affiliates. Because these issues are of significant public interest and importance, as Congress debates the modernization and reform of the financial regulatory system, Congress should consider enacting legislation clarifying the requirements and assistance authorized under the systemic risk exception. Enacting more explicit legislation would provide legal clarity to the banking industry and financial community at large, as well as helping to ensure ultimate accountability to taxpayers.

As Congress contemplates reforming the financial regulatory system, Congress should ensure that systemically important institutions receive greater regulatory oversight. This could include such things as more consistent and enhanced supervision of systemically important institutions and other regulatory measures, such as higher capital requirements and stronger liquidity and risk management requirements and a resolution authority for systemically important institutions to mitigate risks to financial stability.

Agency Comments and Our Evaluation

We provided a draft of this report to the Federal Reserve, FDIC and Treasury for their review and comment. The Federal Reserve and Treasury provided us with written comments. These comments are summarized below and reprinted in appendixes III and IV, respectively. FDIC did not provide written comments. We also received technical comments from the Federal Reserve, FDIC, and Treasury that we have incorporated in the report where appropriate.

In its comments, the Federal Reserve agreed with our findings that while the agencies’ actions taken under the systemic risk exception were important components of the response by the government to the financial crisis, these actions have the potential to increase moral hazard and reinforce perceptions that some firms are too big to fail. In order to mitigate too big to fail and risks to financial stability, the Federal Reserve stated that it agrees with our matter for Congressional consideration that all systemically important financial institutions be subject to stronger regulatory and supervisory oversight and that a resolution system be put in place that would allow the government to manage the failure of these firms in an orderly manner.

Treasury also commented that it agreed with our findings and our matter for Congressional consideration for greater regulatory oversight of the largest, most interconnected financial firms and resolution authority to wind down failing nonbank financial firms in a manner that mitigates the risks that their failure would pose to financial stability and the economy.

We are sending copies of this report to the Chairman of the Board of Governors of the Federal Reserve System; the Chairman of FDIC; the Secretary of the Treasury; and other interested parties. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov.

If you or your staff have any questions regarding this report, please contact me at (202) 512-8678 or williamso@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Appendix I: Objectives, Scope, and Methodology

To describe the steps taken by the Federal Deposit Insurance Corporation (FDIC) and the Board of Governors of the Federal Reserve System (Federal Reserve) to make the recommendations and the Department of the Treasury (Treasury) to make determinations in some cases, we reviewed documentation of recommendations that FDIC and the Federal Reserve made for Wachovia, the Temporary Liquidity Guarantee Program (TLGP), Citigroup, Bank of America, and the Public-Private Investment Programs proposed Legacy Loans Program (LLP) as well as documentation of Treasury’s determination for Wachovia, TLGP, and Citigroup. We also reviewed press releases by the agencies announcing the respective intended actions. In addition, to gain an understanding of how the agencies collaborated prior to the announcements of emergency actions, we interviewed officials from Treasury, FDIC, and the Federal Reserve. We also spoke with these officials about the status of emergency actions that were announced, but did not result in a systemic risk determination by Treasury. Finally, we reviewed the Federal Deposit Insurance Act (FDI Act) requirements for transparency and accountability with respect to the use of the systemic risk provision and analyzed the implications of announcements that are not followed by a Treasury determination that would trigger these requirements.

To describe the basis for each determination and the purpose of actions taken pursuant to each determination we reviewed and analyzed documentation of Treasury’s systemic risk determinations and the supporting recommendations that FDIC and the Federal Reserve made for Wachovia, TLGP, and Citigroup. We interviewed officials from Treasury, FDIC, the Federal Reserve, and the Office of the Comptroller of the Currency (OCC) to gain an understanding of the basis and authority for each determination and the purpose of the actions taken under each determination. We also interviewed three economists, one banking industry association, and a banking analyst. In addition, we collected and analyzed various data to illustrate financial and economic conditions at the time of each determination and the actions taken pursuant to each determination.

We examined whether the legal requirements for making the systemic risk determination with respect to TLGP were met and whether the assistance provided under that program was authorized under the systemic risk exception. For this legal analysis, we reviewed and analyzed the FDI Act, its legislative history including the Federal Deposit Insurance Corporation Improvement Act (FDICIA), and other relevant legislation. We reviewed FDIC regulations and policy statements as well as written background material prepared by the agencies. We obtained the legal views of Treasury, FDIC, and the Federal Reserve on the agencies’ legal authority to establish TLGP, and also obtained the views of banking law specialists in private practice and academia on these issues.

In describing the likely effects of each determination on the incentives and conduct of insured depository institutions and uninsured depositors, as well as assessing proposals to mitigate moral hazard created by such federal assistance, we reviewed and analyzed the research reports of one credit rating agency, Congressional testimonies of regulators and market observers, proposed legislation, and academic studies. We interviewed officials from Treasury, FDIC, the Federal Reserve, and OCC as well as one academic, and three market observers to gain an understanding of how each determination and action impact the incentives and conduct of insured depository institution and uninsured depositors. Finally, we reviewed prior GAO work on the financial regulatory system.

We conducted this performance audit from October 2008 to April 2010 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Analysis of Legal Authority for the Temporary Liquidity Guarantee Program (TLGP)

Appendix II: Analysis of Legal Authority for the Temporary Liquidity Guarantee Program (TLGP)

Introduction and Summary of Conclusions As part of our review of the basis of the systemic risk determinations made to date under the Federal Deposit Insurance Act’s (“FDI Act”) systemic risk exception, we examined whether the legal requirements for making such determinations were met with respect to the Temporary Liquidity Guarantee Program (“TLGP”) and whether the assistance provided under that program was authorized under the exception. We note that the recent financial crisis is the first time that Treasury, FDIC, and the Federal Reserve (“the agencies”) have relied on the exception since its enactment as part of the Federal Deposit Insurance Corporation Improvement Act (“FDICIA”) in 1991, and that no court to date has ruled on when or how the exception may be used. We also acknowledge the volatile economic circumstances under which the agencies created TLGP.

The agencies believe that while the statute could have been drafted more clearly and that it can be interpreted in different ways, under a permissible interpretation, a systemic risk determination may be based on adverse circumstances affecting the banking industry as a whole—the situation that prompted creation of TLGP—as well as on adverse circumstances of one or more particular banking institutions. The agencies also believe a systemic risk determination waives all of the normal statutory restrictions on FDIC assistance, as well as creating new authority to provide assistance, both as to the types of aid that may be provided and the entities that may receive it. Under this reading, the agencies believe that the statutory criteria were met in the case of TLGP and that the assistance was authorized.

We agree there is some support for the agencies’ position that the statute authorizes systemic risk assistance of some type under TLGP facts, as well as for their position that the exception permits assistance to the entities covered by TLGP. There are a number of questions concerning these interpretations, however. In the agencies’ view, for example, some of the statutory provisions are ambiguous. What is clear, however, is that the systemic risk exception overrides important statutory restrictions designed to minimize costs to the Deposit Insurance Fund, and, in the case of TLGP, that the agencies used it to create a broad-based program of direct FDIC assistance to institutions that had never before received such relief—”healthy” banks, bank holding companies, and other bank affiliates. Because these novel legal issues are matters of significant public interest and importance, and because of the need for clear direction to the agencies in a time of financial crisis, we recommend that Congress consider enacting legislation clarifying the requirements and the assistance authorized under the exception.

Background on FDIC’s Statutory Authority to Use the Deposit Insurance Fund As described in greater detail in this report, TLGP provided direct assistance, backed by FDIC’s Deposit Insurance Fund, both to insured depository institutions and to their holding companies and other bank affiliates. The FDI Act normally permits Deposit Insurance Fund- supported assistance only to insured depository institutions, however, and allows assistance to operating (“open”) insured depository institutions (so- called “open bank assistance”) only in three situations, and then only by certain means. As specified in section 13(c) of the FDI Act: “(c) Assistance to insured depository institutions “(1) is authorized . . . to make loans to, to make deposits in, to purchase the assets or securities of, to assume the liabilities of, or to make contributions to, any insured depository institution— “(A) if such action is taken to prevent the default of such “(B) if, with respect to an insured bank in default, such action is taken to restore such insured bank to normal operation; or “(C) if, when severe financial conditions exist which threaten the stability of a significant number of insured depository institutions or of insured depository institutions possessing significant financial resources, such action is taken in order to lessen the risk to the posed by such insured depository institution under such threat of instability.”

12 U.S.C. § 1823(c)(1)(A)-(C).

The FDI Act contains a number of additional restrictions on when and how the FDIC may use Deposit Insurance Fund monies: First, before FDIC may provide assistance to an open bank, FDI Act section 13(c)(8) normally requires it to make a formal determination that the bank is in “troubled condition” under specific undercapitalization and other criteria and that the bank meets other requirements. FDIC must publish notice of any such determination in the Federal Register.

Second, if FDIC decides to provide assistance, the assistance normally must meet so-called “least-cost requirements” in FDI Act section 13(c)(4). Section 13(c)(4)(A) requires FDIC to determine, using financial data about a specific institution, that the proposed assistance is necessary to meet FDIC’s deposit-insurance obligations with respect to the institution’s insured deposits and is the least costly of all possible methods of meeting those obligations. Section 13(c)(4)(E) prohibits FDIC from providing assistance to creditors or non-insured depositors of the institution if doing so would increase losses to the Fund beyond those that otherwise might result from protecting insured depositors.

Third, FDI Act section 11(a)(4)(C) normally prohibits FDIC from using the Fund to benefit affiliates or shareholders of an assisted depository institution in any way, regardless of whether such assistance would cause a loss to the Fund.

The agencies believe, however, that if Treasury makes an emergency determination under the systemic risk exception, this waives all of the foregoing requirements and also creates new authority to provide any type of assistance to any type of entity, as long as the assistance is deemed necessary to avoid or mitigate systemic risk. Specifically, the words of the statute require Treasury to determine: (i) that “compliance with subparagraphs (A) and (E) with respect to an insured depository institution would have serious adverse effects on economic conditions or financial stability”; and (ii) that “any action or assistance under . . . would avoid or mitigate” such effects. If Treasury makes this determination, the FDIC may then “take other action or provide assistance under this section as necessary to avoid or mitigate such effects.” The statute imposes significant deliberative and consultative requirements on the process for making such a determination: it must be made by the Secretary of the Treasury; the Secretary must receive written recommendations from both the FDIC Board of Directors and the Federal Reserve Board of Governors, each made pursuant to at least a two-thirds vote; and the Secretary must consult with the President.

The Agencies’ Reliance on the Systemic Risk Exception to Create TLGP The agencies agree that without Treasury’s systemic risk determination for TLGP in October 2008, the above statutory restrictions would have prohibited FDIC assistance to most of TLGP recipients, either because the entities would not have met the statutory “troubled condition criteria” for open banks (in the case of many TLGP participants) or because they were bank holding companies or other affiliates of insured depository institutions for which FDIC assistance normally is unavailable. The agencies clearly followed the requisite process in issuing the determination: FDIC and the Federal Reserve both submitted unanimous written recommendations in favor of Treasury making a systemic risk determination; the Secretary consulted with the President; and the Secretary signed a formal determination on October 14, 2008. Acknowledging that the systemic risk exception can be interpreted in different ways, the agencies believe they also met the statute’s substantive requirements under a permissible interpretation of the statute. We discuss below two key legal issues that the agencies considered in making their recommendations and determination. 1. Authority to Provide Assistance Based on Problems of the Banking Industry As a Whole In invoking the exception for the other two systemic risk determinations made to date—with respect to Wachovia in September 2008 and Citigroup in January 2009—the agencies concluded, based on the facts of those specific institutions, that providing least-cost assistance to those entities’ insured institutions would have had “serious adverse effects on economic conditions or financial stability”—that is, would have caused systemic risk. The agencies applied the exception differently for TLGP determination: they made what they characterized as a “generic systemic risk determination” made “generically for all institutions,” that is, a determination made with respect to “the U.S. banking system in general” and “insured depository institutions in general.” According to the agencies, they took this approach because the problem at hand was not limited to weakness in one or more individual institutions, but was a banking system problem, an overall scarcity of liquidity caused by lack of interaction among institutions. The agencies therefore concluded that providing assistance on a bank-by-bank basis would not have relieved the existing instability in the industry and that waiting to provide bank-by- bank relief after individual banks had begun to fail would not have mitigated further systemic risk. The agencies also believed that a bank- specific, wait-for-failure approach would have been more costly than TLGP assistance provided.

The agencies believe these facts supported the required statutory finding that “compliance with with respect to an insured depository institution” would cause systemic risk, in that they showed that having to apply the least-cost requirements on a bank-by-bank basis (“compliance with the . . . requirements with respect to an . . . institution”) would have caused systemic risk. The agencies also believe the statute permits a generic rather than a bank-specific determination because under general statutory construction and grammar rules reflected in the Dictionary Act, 1 U.S.C. § 1, the required finding regarding compliance “with respect to an institution” can be read as “compliance with respect to one or more institutions” unless statutory context indicates otherwise.

Some have noted that a possible reading of the exception authorizes assistance only to particular institutions, based on those institutions’ specific problems, not, as was done in creating TLGP, systemic risk assistance to all institutions based on problems affecting the banking industry in general. In our view, the language, context, and history of the exception do not clearly restrict its use to assistance to specific institutions. The statute does not prescribe a detailed method by which Treasury must determine whether “compliance . . . would cause systemic risk,” and we agree with the agencies that “compliance . . . with respect to an institution” means the determination can be based on the circumstances of more than one bank—that is, “an institution” can mean “one or more institutions.”

As to whether the statute permits a determination to be made generically based on industry-wide problems at insured depository institutions apart from the health of any particular institution, nothing in the legislative history of the exception explicitly refutes the agencies’ position that the statute permits such a generic determination. The debate leading to enactment of FDICIA centered on FDIC’s role in resolving “too big to fail” institutions whose collapse might pose a risk to the entire financial system, rather than on banking system-wide problems already posing serious risk. However, nothing indicates Congress intended to preclude use of the exception when, as with the facts leading to TLGP, an adverse systemic condition is itself the cause of imminent bank failures and the agencies determine that individual least-cost resolutions would not adequately address the condition and in fact would worsen it. While Congress’ intent to further restrict the FDIC’s authority to provide open bank assistance is clear from the significant new limitations it imposed in FDICIA, Congress’ simultaneous enactment of the systemic risk exception indicated a parallel objective to avoid wholesale systemic failure. In light of these objectives and the language of the statute, we believe there is some support for the agencies’ position that the law does not require an institution-specific evaluation where it would result in systemic risk. Unexcelled Chemical Corp. v. United States, 345 U.S. 59 (1953) (laws written in comprehensive terms apply to unanticipated circumstances if they reasonably fall within the scope of the statutory language); see generally GAO-08-606R (March 31, 2008) at 13-18.

In sum, given Treasury’s factual determination that systemic risk would have resulted from application of the least-cost requirements to the circumstances leading to creation of TLGP, we believe there is some support for the agencies’ legal position that systemic risk assistance of some type was authorized. Whether the particular TLGP assistance provided was within the scope authorized by the systemic risk exception was a second issue the agencies considered, and which we now address. 2. Authority to Provide Assistance to Non-”Troubled” Banks, Bank Holding Companies, and Other Bank Affiliates In addition to considering whether the banking industry-wide liquidity crisis could be mitigated by providing systemic risk relief, the agencies considered whether the statute authorized relief for all of the entities they believed should receive assistance. The agencies addressed whether the language of the statute—authorizing FDIC, in the event of a systemic risk determination, to “take other action or provide assistance under this section as necessary to avoid or mitigate” systemic risk—waived the statute’s other restrictions, and they concluded that it both waived the restrictions and then gave FDIC new authority to provide assistance even beyond that otherwise authorized by the FDI Act, as long as the assistance was “necessary to avoid or mitigate” systemic risk. Under this interpretation, the agencies believe FDIC had authority to provide TLGP assistance directly to bank holding companies and other bank affiliates, as well as to insured depository institutions that FDIC had not determined met the statutory troubled-condition criteria (and would not have met them in most cases because most of the institutions were “healthy” under the statutory standards).

The agencies base their interpretation in part on Congress’ use of the disjunctive term “or” in authorizing “other action or . . . assistance under this section,” noting that “or” generally indicates an intention to differentiate between two phrases. They also rely on a statutory construction principle known as the “grammatical rule of the last antecedent,” where a limiting phrase—here, “under this section”— generally should be read as modifying only the words immediately preceding it—here, “assistance,” not “other action.” In the agencies’ view, a systemic risk determination creates two distinct options for assistance: (1) “other action,” that is, “action” “other” than assistance allowed by FDI Act section 13; and (2) assistance allowed by section 13. “Other action” is not subject to the restrictions on section 13 assistance, in the agencies’ view, because by definition it is not section 13 assistance, while “assistance under this section” remains subject to those restrictions unless explicitly waived by the systemic risk exception, as in the case of the least- cost requirements. Under this interpretation, TLGP’s aid to all open healthy (non-”troubled”) banks, considered as a whole, was authorized because it constituted “other action” not subject to the section 13(c)(8) ban on relief to healthy open banks, rather than “assistance under this section” which would have prohibited relief to the same institutions if considered individually. Likewise, according to the agencies, TLGP’s direct assistance to bank holding companies and other bank affiliates constituted “other action” rather than “assistance under this section.”

The agencies’ reading of the statute raises several issues. First, while rules of grammar and statutory construction can provide general guidance about what Congress intended, the actual context and structure of the statute are of equal if not paramount importance. Here, Congress’ interchangeable use of the terms “action” and “assistance” throughout section 13 suggests it did not intend to differentiate between those terms when it used them in section 13(c)(4)(G), the systemic risk exception. For example, although Congress entitled section 13(c), the general FDI Act provision authorizing FDIC aid to open insured institutions, as “Assistance to insured depository institutions,” it then used the term “action” to identify each circumstance in which such assistance is authorized. See, e.g., 12 U.S.C. §§ 1823(c)(1)(A)-(C), 1823(c)(2), 1823(c)(4)(E). This suggests Congress created only one basic option for systemic risk relief: action or assistance, authorized by section 13 and related restrictions, except restrictions expressly waived by the systemic risk exception. The sequence of the terms “other action” and “assistance” in the statute supports this reading, because if Congress intended to create two types of relief—one subject to the section 13 restrictions and the other subject to no restrictions—arguably it would have reversed the order and authorized “assistance under this section or other action” rather than “other action or assistance under this section.”

Second, the fact that the systemic risk exception explicitly waives the least-cost requirements, by two specific references to “subparagraphs (A) and (E),” but waives none of the other statutory requirements, also supports the one-option interpretation because it suggests Congress did not intend its authorization of “other action” to override other statutory restrictions. In this regard, FDIC has long recognized, since promulgation of its revised Open Bank Assistance Policy in 1992, that the section 13(c)(8) restrictions against assistance to healthy open banks apply even when there is a systemic risk determination and that these restrictions must be met prior to providing systemic risk assistance. FDIC thus applied the restrictions as part of its recommendation for the Citigroup systemic risk determination in January 2009, and determined that the open insured depository institutions there were “troubled,” thus qualifying for open bank—and systemic risk—assistance. In FDIC’s view, its position that the Citigroup systemic risk determination did not waive (c)(8) for open depository institutions is consistent with its position that TLGP determination did waive (c)(8) for open depository institutions, because the former constituted “assistance under this section” relief while the latter constituted “other action” relief. FDIC’s 1992 Open Bank Assistance Policy did not address this aspect of the systemic risk exception, FDIC told us, because until TLGP, no one had considered t possibility of systemic risk stemming from industry-wide conditions rathehe r than bank-specific conditions. We recognize that FDIC’s interpretation has evolved in response to new circumstances, but we believe its current and arguably inconsistent “other action” interpretation is subject to questionfor the reasons noted above.

Third, the practical effect of a systemic risk determination under the agencies’ reading is to authorize any type of assistance to any type of entity, provided the aid is deemed necessary to avoid or mitigate systemic risk. This is because if relief does not meet the restrictions imposed on “assistance under this section,” the identical relief is by definition authorized as “other action.” If Congress had intended to give FDIC such broad new authority, however, it could have simply said so, authorizing FDIC to “take action” in the event of systemic risk. Instead, Congress added qualifying language apparently intended to limit FDIC’s options, only authorizing it to “take other action or provide assistance under this section.”

Finally, the overall legislative history of FDICIA also suggests Congress did not intend the exception to provide the breadth of new authority claimed by the agencies. FDICIA was aimed in part at curbing what Congress believed had been excessive costs of FDIC bank assistance that increased the exposure of the Deposit Insurance Fund. Congress therefore imposed new restrictions intended to raise, not lower, the bar for FDIC relief. Limits were added, for example, on which entities could receive assistance (e.g., only open banks in “troubled condition”) and how much assistance could be provided (least-cost). Congress also imposed so-called prompt corrective action mandates on the banking regulators, requiring them to take increasingly severe actions as an institution’s capital deteriorates. Additionally, like its predecessor exception, the systemic risk exception was enacted as part of a provision imposing cost-based limits on FDIC assistance—the least-cost requirements—rather than as a separate provision granting new authority. In light of FDICIA’s overarching remedial purposes, it is questionable that Congress would have intended to simultaneously provide FDIC with new and substantially broader authority than the agency had been given since its creation in 1933, and would have done so by means of an implication in a narrowed exception to a cost restriction. Commissioner v. Clark, 489 U.S. 726, 738- 39 (1989)(“Given that Congress has enacted a general rule . . ., we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception.”); Whitman v. American Trucking Ass’n, 531 U.S. 457, 468 (2001)(“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”) (citations omitted).

In response to these issues, the agencies make two additional points.

First, they suggest that any uncertainty regarding whether “other action” authorized TLGP assistance to bank holding companies was resolved by 2009 amendments to the systemic risk exception. At the time TLGP was created, the exception required FDIC to recover any losses to the Deposit Insurance Fund caused by its systemic risk assistance, but authorized recovery only from insured depository institutions. In response to concerns by FDIC and banking industry representatives that bank holding companies should also bear some of TLGP costs because they had received substantial assistance under the program, Congress modified the provision in May 2009 to permit assessments against bank holding companies as well as depository institutions. Pub. L. No. 111-22, sec. 204(d), codified at 12 U.S.C. § 1823(c)(4)(G)(ii). The agencies believe this confirms the FDIC’s authority to provide assistance to bank holding companies under TLGP because Congress did not simultaneously amend the exception to explicitly prohibit such assistance going forward. We agree the amendment provides some support for the agencies’ position under a general tenet of statutory construction that congressional awareness of an agency’s practice in implementing a statute, without striking down that practice, indicates congressional acquiescence in the agency’s interpretation.

Second, the agencies maintain that their interpretation of any ambiguous aspects of the systemic risk exception warrants substantial deference under the Supreme Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), and related cases. Under Chevron, when the meaning of a statute is unclear, either because the statute is silent on an issue or the language is ambiguous, an interpretation by an agency charged with the statute’s administration warrants substantial deference provided the interpretation is reasonable, even if it is not the only interpretation or the best interpretation. Whether and to what extent deference is warranted depends on factors including the agency’s specialized expertise in implementing the statute, whether the agency’s interpretation has been subjected to public scrutiny through public notice- and-comment rulemaking, and whether its interpretation is consistent with its previous pronouncements. United States v. Mead Corp., 533 U.S. 218, 227-29 (2001) (citations omitted). Under Mead, Chevron deference is warranted where the interpretation is made as part of an agency rulemaking or other agency action that Congress intended to carry the force of law, and, even if Chevron deference is not warranted, lesser deference is warranted under Skidmore v. Swift, 323 U.S. 134 (1944), if the agency’s interpretation is “persuasive” based on factors such as the thoroughness and validity of the agency’s reasoning, the consistency of its interpretation over time, and the formality of its action.

We believe these deference principles have some force as applied to the systemic risk exception and TLGP. Congress did not explicitly address whether FDIC may provide systemic risk relief directly to bank holding companies or healthy open banks, and a court arguably could find that the statute’s authorization of “other action or assistance under this section” is ambiguous. If it did, we believe the agencies’ reading might merit at least some degree of deference. Congress charged these three financial regulatory agencies with implementing the systemic risk exception, and charged FDIC with implementing other provisions of the FDI Act related to this exception. The agencies interpreted the exception to authorize assistance to holding companies, other bank affiliates, and non-troubled banks as part of the systemic risk determination, and FDIC exercised its general rulemaking authority to issue regulations establishing TLGP, including regulations providing for assistance to these entities. According to the agencies, their interpretation of what “other action or . . . assistance” authorizes was necessarily part of the rulemaking because critical aspects of the program—assistance to “healthy” banks, and to bank holding companies and other bank affiliates—were premised upon this interpretation and would otherwise have been prohibited. Further, FDIC’s rulemaking preambles asserted that TLGP was authorized by Treasury’s systemic risk determination. The fact that the regulations and preambles did not solicit public comment on the underlying legal interpretations—and in fact did not indicate what the interpretations were—did not disqualify them from Chevron deference, according to the agencies, because under other Supreme Court precedent, an agency’s interpretation of a statute may warrant deference if the interpretation was the only logical basis for a rulemaking, even if the agency does not disclose its interpretation. Finally, we note that the very process Congress established for issuance of systemic risk determinations reflects great congressional respect for the agencies’ judgment and expertise, if not a strict basis for legal deference to their interpretation of the statute.

We nonetheless believe the arguments for deference to the agencies’ interpretation are undercut by the statutory interpretation concerns discussed above, which raise questions about the persuasiveness of the agencies’ arguments, and by the different and arguably inconsistent positions taken by FDIC regarding whether the systemic risk exception waives the prohibition against assistance to “healthy” institutions.

We believe there is some support for the agencies’ position that the systemic risk exception authorizes assistance of some type under TLGP facts, as well as for their position that the exception permits assistance to the entities covered by this program. There are a number of questions concerning these interpretations, however. Because application of the systemic risk exception raises novel legal and policy issues of significant public interest and importance, and because of the need for clear direction to the agencies in a time of financial crisis, we recommend that Congress consider enacting legislation clarifying the requirements and assistance authorized under the exception. Congress is now debating modernization and reform of the financial regulatory system, including regulation that addresses systemic risk, and this may provide an opportunity for such congressional consideration. Enacting more explicit legislation will provide legal clarity to the agencies, the banking industry, and the financial community at large, and will help to ensure greater transparency and accountability to the taxpaying public.

Federal Deposit Insurance Act Section 13(c)(4)(G), Title 12, United States Code, Section 1823(c)(4)(G) § 1823. Corporation monies * * * (c) Assistance to insured depository institutions * * * (4) Least-cost resolution required * * * (G) Systemic risk (i) Emergency determination by Secretary of the Treasury Notwithstanding subparagraphs (A) and (E) , if, upon the written recommendation of the Board of Directors (upon a vote of not less than two-thirds of the members . . .) and the Board of Governors of the Federal Reserve System (upon a vote of not less than two-thirds of the members . . . ), the Secretary of the Treasury (in consultation with the President) determines that— (I) the Corporation’s compliance with subparagraphs (A) and (E) with respect to an insured depository institution would have serious adverse effects on economic conditions or financial stability; and (II) any action or assistance under this subparagraph would avoid or mitigate such adverse effects, the Corporation may take other action or provide assistance under this section as necessary to avoid or mitigate such effects. (ii) Repayment of loss (I)

The Corporation shall recover the loss to the Deposit Insurance Fund arising from any action taken or assistance provided with respect to an insured depository institution under clause (i) from 1 or more special assessments on insured depository institutions, depository institution holding companies (with the concurrence of the Secretary of the Treasury with respect to holding companies), or both, as the Corporation determines to be appropriate. (II) Treatment of depository institution holding companies For purposes of this clause, sections 1817(c)(2) and 1828(h) of this title shall apply to depository institution holding companies as if they were insured depository institutions.

The Corporation shall prescribe such regulations as it deems necessary to implement this clause. In prescribing such regulations, defining terms, and setting the appropriate assessment rate or rates, the Corporation shall establish rates sufficient to cover the losses incurred as a result of the actions of the Corporation under clause (i) and shall consider: the types of entities that benefit from any action taken or assistance provided under this subparagraph; economic conditions, the effects on the industry, and such other factors as the Corporation deems appropriate and relevant to the action taken or the assistance provided. Any funds so collected that exceed actual losses shall be placed in the Deposit Insurance Fund. (iii) Documentation required The Secretary of the Treasury shall— (I) document any determination under clause (i); and (II) retain the documentation for review under clause (iv). (iv) GAO review The Comptroller General of the United States shall review and report to the Congress on any determination under clause (i), including— (I) the basis for the determination; (II) the purpose for which any action was taken pursuant to such clause; and (III) the likely effect of the determination and such action on the incentives and conduct of insured depository institutions and uninsured depositors. (v) Notice (I)

The Secretary of the Treasury shall provide written notice of any determination under clause (i) to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Banking, Finance and Urban Affairs of the House of Representatives. (II) Description of basis of determination The notice under subclause (I) shall include a description of the basis for any determination under clause (i).

Appendix III: Comments from the Board of Governors of the Federal Reserve System

Appendix IV: Comments from the Department of the Treasury

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contacts named above, Karen Tremba (Assistant Director), Rachel DeMarcus, John Fisher, Kristopher Hartley, Michael Hoffman, Marc Molino, Akiko Ohnuma, Barbara Roesmann, Carla Rojas, Susan Sawtelle, and Paul Thompson made key contributions to this report.