Amendment of the Temporary Liquidity Guarantee Program To Extend the Debt Guarantee Program and To Impose Surcharges on Assessments for Certain Debt Issued on or After April 1, 2009, 26521-26525 [E9-12943]
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Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations
deposits of the next longer and shorter
maturities offered in the market.
Dated at Washington, DC, this 29th day of
May, 2009.
Authorized to be published in the Federal
Register by Order of the Board of Directors
of the Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. E9–12938 Filed 6–2–09; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 370
RIN 3064–AD37
Amendment of the Temporary Liquidity
Guarantee Program To Extend the
Debt Guarantee Program and To
Impose Surcharges on Assessments
for Certain Debt Issued on or After
April 1, 2009
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AGENCY: Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
SUMMARY: The FDIC is issuing this final
rule to amend the Temporary Liquidity
Guarantee Program (TLGP) by providing
a limited extension of the Debt
Guarantee Program (DGP) for insured
depository institutions (IDIs)
participating in the DGP. The extended
DGP also applies to other participating
entities; however, other participating
entities that did not issue FDICguaranteed debt before April 1, 2009 are
required to submit an application to and
obtain approval from the FDIC to
participate in the extended DGP. The
final rule imposes surcharges on certain
debt issued on or after April 1, 2009.
Any surcharge collected will be
deposited into the Deposit Insurance
Fund (DIF or Fund). The final rule also
establishes an application process
whereby entities participating in the
extended DGP may apply to issue nonFDIC-guaranteed debt during the
extension period. The final rule restates
without change the interim rule
published in the Federal Register by the
FDIC on March 23, 2009.1
DATES: Effective June 3, 2009.
FOR FURTHER INFORMATION CONTACT:
Mark L. Handzlik, Senior Attorney,
Legal Division, (202) 898–3990 or
mhandzlik@fdic.gov; Robert C. Fick,
Counsel, Legal Division, (202) 898–8962
or rfick@fdic.gov; A. Ann Johnson,
Counsel, Legal Division, (202) 898–3573
or aajohnson@fdic.gov; (for questions or
1 74
FR 12078 (March 23, 2009).
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comments related to applications) Lisa
D Arquette, Associate Director, Division
of Supervision and Consumer
Protection, (202) 898–8633 or
larquette@fdic.gov; Serena L. Owens,
Associate Director, Supervision and
Applications Branch, Division of
Supervision and Consumer Protection,
(202) 898–8996 or sowens@fdic.gov; Gail
Patelunas, Deputy Director, Division of
Resolutions and Receiverships, (202)
898–6779 or gpatelunas@fdic.gov;
Donna Saulnier, Manager, Assessment
Policy Section, Division of Finance,
(703) 562–6167 or dsaulnier@fdic.gov;
or Munsell St. Clair, Chief, Bank and
Regulatory Policy Section, Division of
Insurance and Research, (202) 898–8967
or mstclair@fdic.gov.
SUPPLEMENTARY INFORMATION
I. Background
The FDIC adopted the TLGP in
October 2008 following a determination
of systemic risk by the Secretary of the
Treasury (after consultation with the
President) that was supported by
recommendations from the FDIC and
the Board of Governors of the Federal
Reserve System (Federal Reserve).2 The
TLGP is part of a coordinated effort by
the FDIC, the U.S. Department of the
Treasury (Treasury), and the Federal
Reserve to address unprecedented
disruptions in credit markets and the
resultant inability of financial
institutions to fund themselves and
make loans to creditworthy borrowers.
The steps taken to stabilize the
nation’s financial system by the
Congress, the Treasury, and the federal
banking agencies have improved
conditions in the U.S. credit markets.
While liquidity in the financial markets
has not returned to pre-crisis levels, the
TLGP debt guarantee program has
benefited participating IDIs, bank and
certain savings and loan holding
companies, and certain of their affiliates
by improving their options for shortterm and intermediate-term funding.
On March 17, 2009, the FDIC’s Board
of Directors (Board) adopted an interim
rule that amended the TLGP by
providing for a limited extension of the
DGP, imposing surcharges on
assessments for certain debt issued on
or after April 1, 2009, and providing
procedures to enable participating
entities to issue certain non-guaranteed
debt.3 This amendment was designed to
reduce market disruption at the
conclusion of the TLGP by facilitating
the orderly phase-out of the DGP and
encouraging participating entities to use
the limited extension of the DGP to plan
for a successful return to sources of nonFDIC-guaranteed funding markets.
II. The Interim Rule
On March 17, 2009, the FDIC’s Board
adopted an interim rule with request for
comment that amended the TLGP by
providing for a limited extension of the
DGP, surcharges for certain debt
issuances, and procedures for
participating entities to issue certain
non-guaranteed debt. The interim rule
was published in the Federal Register
on March 23, 2009. As discussed in the
section that follows, commenters
generally favored the interim rule.
Accordingly, the FDIC is implementing
the interim rule as a final rule without
change.
III. Summary of Comments
The FDIC received two comments on
the interim rule from groups
representing the banking industry. Both
commenters supported the amendments
to the DGP made in the interim rule.
The commenters specifically
endorsed the surcharges placed on
certain FDIC-guaranteed debt and made
applicable to all participating entities
that issued FDIC-guaranteed debt after
April 1, 2009. In the event of the
diminution of the Deposit Insurance
Fund (DIF) caused by TLGP losses, if
any, the commenters noted that only
IDIs would be required to fund a special
assessment to replenish the DIF, though
IDIs have not been the primary users of
the program.4 Depositing surcharges
directly into the DIF was viewed by
these commenters as an appropriate
recognition of the possible exposure that
all IDIs, both participating and nonparticipating, could face in the event of
losses caused by the TLGP. The
commenters also welcomed the
potential for a corresponding decrease
in standard assessments for IDIs that
could result from the deposit of the
surcharges into the DIF.
3 74
FR 12078 (March 23, 2009).
204(d) of the Helping Families Save
Their Homes Act of 2009 (Pub. L. 111–22), enacted
on May 20, 2009, authorized the FDIC to impose a
special assessment on depository institution
holding companies (with the concurrence of the
Secretary of the Treasury) to recover losses to the
Deposit Insurance Fund arising from action taken
or assistance provided with respect to an insured
depository institution following a system risk
determination made pursuant to section
13(c)(4)(G)(i) of the Federal Deposit Insurance Act.
4 Section
2 See Section 13(c)(4)(G) of the Federal Deposit
Insurance Act (FDI Act), 12 U.S.C. 1823(c)(4)(G).
The determination of systemic risk authorized the
FDIC to take actions to avoid or mitigate serious
adverse effects on economic conditions or financial
stability, and the FDIC implemented the TLGP in
response.
Section 9(a) Tenth of the FDI Act, 12 U.S.C.
1819(a)Tenth, provides additional authority for the
establishment of the TLGP.
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One commenter applauded the FDIC’s
efforts to unwind the DGP as described
in the interim rule. The commenter
favorably noted that the interim rule
encouraged participating entities to
return to the non-FDIC-guaranteed debt
market by, for example, establishing
procedures for issuing non-FDICguaranteed debt during the extended
DGP and implementing the
aforementioned surcharges.
Noting the changes that have occurred
in the TLGP since its inception in
October 2008, one commenter suggested
that the FDIC provide a second
opportunity for eligible entities to optin to the program. As the FDIC stated in
the interim rule, the purpose of the
amendments to the TLGP are to ensure
an orderly phase-out of the program.
Providing a second opportunity to optin to the DGP would be contrary to this
effort. The FDIC believes that the TLGP
has provided reliable and cost-efficient
liquidity support to financial
institutions with demonstrated funding
needs. Institutions that have elected to
opt-out of the TLGP are perceived as
less likely to have such funding needs
and, therefore, the FDIC believes that
providing a second opportunity to optin to the DGP—as the program winds
down—would be of marginal benefit to
the industry.
One commenter suggested that the
interim rule be revised to permit an IDI
with capacity under its existing debt
limit to transfer that capacity to its
holding company so that the guaranteed
debt could be issued by the holding
company rather than by the IDI. Under
the TLGP, debt guarantee limits were
based on the liquidity needs of an entity
as determined by senior unsecured debt
outstanding on September 30, 2008 (or
2 percent of liabilities for IDIs without
any outstanding senior unsecured debt
on September 30, 2008). Holding
companies that regularly issued debt on
behalf of its subsidiary IDIs presumably
would have had such debt outstanding
on September 30, 2008, and their debt
guarantee limits for purposes of the
TLGP would have been established
accordingly. The purpose of the TLGP
was not to establish a new or expanded
debt market for holding companies.
Instead, a primary focus of the TLGP
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was to encourage interbank lending.
Without case-by-case analysis, the FDIC
believes it would be inconsistent with
the purpose of the TLGP to permit any
holding company that had not
previously issued debt on behalf of its
subsidiary IDI to rely on its IDI’s debt
limit to establish or enhance its own
debt issuances. The FDIC notes,
however, that part 370 permits any
participating entity to request an
increase in its debt guarantee limit, and
the FDIC will continue to consider such
applications on a case-by-case basis.5
IV. The Final Rule
The FDIC has implemented the
interim rule as a final rule without
change. As discussed below, the final
rule restates the three primary
amendments to the TLGP announced in
the interim rule: it provides for a limited
extension of the DGP; imposes
surcharges on assessments for certain
debt issuances; and establishes
procedures whereby a participating
entity can apply to issue certain debt
that is not guaranteed by the FDIC.
A. Extension of the Debt Guarantee
Program for IDIs Participating in the
TLGP
Under the version of the DGP that
existed before the interim rule was
issued, participating entities were
permitted to issue senior unsecured
debt until June 30, 2009. The FDIC
guarantee for such this debt extended
until the earlier of the maturity of the
debt or June 30, 2012.
Like the interim rule, the final rule
provides a limited four-month extension
for the issuance of debt under the DGP
and is consistent with extensions to
other liquidity programs recently
announced by the Federal Reserve.6 The
final rule permits all IDIs participating
in the DGP to issue FDIC-guaranteed
senior unsecured debt until October 31,
2009. For debt issued on or after April
5 12
CFR 370.3(h)(1)(i).
Monetary Press Release, Release Date:
February 3, 2009, https://www.federalreserve.gov/
newsevents/press/monetary/20090203a.htm (last
visited February 20, 2009) (announcing four-month
extensions until October 2009 of six liquidity
programs originally scheduled to expire in April
2009).
6 2009
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1, 2009, the final rule restates without
change those provisions of the interim
rule that extended the FDIC’s guarantee
until the earliest of the opt-out date, the
maturity of the debt, the mandatory
conversion date for mandatory
convertible debt, or December 31, 2012.
B. Extension of the Debt Guarantee
Program for Other Entities Participating
in the TLGP
As with the interim rule, the final rule
permits other participating entities that
issued FDIC-guaranteed debt before
April 1, 2009, to participate in the
extended DGP without application.
However, other participating entities
that did not issue FDIC-guaranteed debt
before April 1, 2009, are required to
apply to and receive approval from the
FDIC to participate in the extended
DGP.7 The deadline for submitting an
application to participate in the
extended DGP continues to be June 30,
2009. The FDIC will review such
applications on a case-by-case basis.
Absent such application and approval,
the FDIC’s guarantee will expire for
such entities no later than June 30,
2012.
This final rule will not change a
participating entity’s existing debt
guarantee limit or affect any conditions
that the FDIC may have placed on the
issuance of debt by an IDI or other
participating entity. In addition, the
FDIC reiterates that, consistent with
prudent liquidity management
practices, issuance levels under the DGP
should be consistent with existing
funding plans and estimated liquidity
needs. The chart that follows provides
a summary of the relevant dates for
entities that participate (and those that
do not participate) in the extended DGP.
7 Unlike IDIs (for whom the FDIC has either
primary or backup supervision authority) and other
participating entities that issued debt before April
1, 2009 (for whom the FDIC is aware of current debt
issuances and the evolving financial condition of
those entities), for other participating entities that
did not issue debt before April 1, 2009, the FDIC
has chosen to mitigate its risk during the extension
period by establishing an application process that
will enable the FDIC to become more familiar with
the current financial situation for these entities and
with their plans for issuing debt during the
extension period.
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26523
Application date
Issue date
Guarantee expiration date
IDIs currently participating in the
DGP, and other participating entities that have issued FDICguaranteed debt before April 1,
2009.
Not required to submit an application to participate in the extension of the DGP.
Senior unsecured debt may be
issued no later than Oct. 31,
2009.
For debt issued on or after April
1, 2009, FDIC-guarantee of
senior unsecured debt expires
on the earliest of the mandatory
conversion date for mandatory
convertible debt, the stated
date of maturity, or Dec. 31,
2012.
Other participating entities that
have not issued FDIC-guaranteed debt before April 1, 2009,
which have received approval to
participate in the extension of
the DGP.
Application due on or before June
30, 2009.
With FDIC approval, senior unsecured debt may be issued no
later than Oct. 31, 2009.
For debt issued on or after April
1, 2009, with FDIC approval,
FDIC-guarantee of senior unsecured debt expires on the earliest of the mandatory conversion date for mandatory convertible debt, the stated date of
maturity, or Dec. 31, 2012.
Other participating entities currently participating in the DGP,
but not participating in the extension of the DGP.
N/A ................................................
Senior unsecured debt may be
issued no later than June 30,
2009.
FDIC-guarantee of senior unsecured debt expires on the earliest of the mandatory conversion date for mandatory convertible debt, the stated date of
maturity, or June 30, 2012.
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C. Surcharges on Assessments for
Certain Debt Issued on or After April 1,
2009
As with the interim rule, surcharges
provided for in the final rule will
continue to be imposed on an
annualized basis and apply only to
FDIC-guaranteed debt with maturities
(or, in the case of mandatory convertible
debt, time periods to conversion) of at
least one year; the assessment rates for
shorter term FDIC-guaranteed debt
remain unchanged, as do the rates for
guaranteed debt issued before April 1,
2009.
For FDIC-guaranteed debt with
maturities (or, in the case of mandatory
convertible debt, time periods to
conversion) of at least one year issued
on or after April 1, 2009, until and
including June 30, 2009, and maturing
on or before June 30, 2012, the
annualized surcharge on the
assessments continues to be 10 basis
points for IDIs and 20 basis points for
other participating entities, as provided
for in the interim rule.
Like the interim rule, the final rule
also imposes an additional surcharge on
assessments for FDIC-guaranteed debt
issued under the extended DGP—that is,
FDIC-guaranteed debt issued after June
30, 2009 and on or before October 31,
2009, or FDIC-guaranteed debt issued on
or after April 1, 2009 with a maturity
date after June 30, 2012. The annualized
surcharge on the assessments for IDIs is
25 basis points. For other participating
entities that issued FDIC-guaranteed
debt under the DGP before April 1, 2009
(and for such entities that did not issue
FDIC-guaranteed debt under the DGP
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before April 1, 2009, but that have been
approved by the FDIC to participate in
the extended DGP), the annualized
surcharge on assessments is 50 basis
points.
The final rule provides that the
surcharges on assessments imposed on
both IDIs and other participating entities
remain the same as provided for in the
interim rule.8 As such, the surcharges
for IDIs would remain slightly lower
than those imposed on other entities
participating in the DGP. The FDIC
believes that this differential remains
appropriate because entities other than
IDIs, for which the FDIC has limited
supervisory authority, present more
uncertainty to the FDIC.
Unlike other TLGP fees, which are
reserved for possible TLGP losses and
not generally available for DIF purposes,
the amount of any surcharge collected
in connection with the extended DGP
will be deposited into the DIF and used
by the FDIC when calculating the
reserve ratio of the Fund. The FDIC has
every expectation that the TLGP will
pay for itself and has set TLGP fees
accordingly.
The surcharge provisions recognize
that a relatively small portion of the
industry is actively using the DGP, but
all IDIs ultimately bear the risk that a
systemic risk assessment might be
necessary to recover any excess losses
attributable to the program. The
surcharge is intended to compensate the
8 Recent amendments to the FDI Act provide the
FDIC with additional authority to make special
emergency assessments of both IDIs and depository
institution holding companies (with the
concurrence of the Secretary of the Treasury), if
necessary. See footnote 4.
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DIF members, even those that did not
issue FDIC-guaranteed debt, by
increasing funds deposited directly into
the DIF, for bearing the risk that TLGP
fees will be insufficient and that a
systemic risk assessment will be levied.
The surcharges also are intended to
reduce the subsidy provided by the DGP
and to encourage institutions to seek
funding in ways that do not involve
government guarantees, so that the DGP
can be unwound in an orderly fashion.
The DGP extension also partially
addresses potential competitive
disparities with similar programs in
other countries. The FDIC anticipates
that the amount of revenue that the
surcharge produces will enable the FDIC
to reduce the amount of the special
assessment provided for in the interim
rule adopted on February 27, 2009.9
D. Opportunity To Apply To Issue NonGuaranteed Debt
As with the interim rule, the final rule
provides that any entities participating
in the extended DGP may apply to the
FDIC to issue non-FDIC-guaranteed debt
after June 30, 2009. If approved, such
entities may issue non-guaranteed debt
after June 30, 2009, with any maturity
and without paying any additional fee
to the FDIC.10
9 See
74 FR 9525 (March 4, 2009).
participating entities elected to pay a fee
to issue long-term non-guaranteed debt that could
mature beyond June 30, 2012, pursuant to 12 CFR
370.6(f). These entities may continue to issue longterm non-guaranteed debt without additional
application to the FDIC.
If those entities are eligible to participate in the
extension of the TLGP, the final rule, like the
interim rule, requires such entities to apply to, and
10 Some
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V. Regulatory Analysis and Procedure
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A. Administrative Procedure Act
The process of amending Part 370 by
means of this final rule is governed by
the Administrative Procedure Act
(APA). Pursuant to section 553(b)(B) of
the APA, general notice and opportunity
for public comment are not required
with respect to a rule making when an
agency for good cause finds that ‘‘notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.’’ Consistent with
section 553(b)(B) of the APA, in
publishing the interim rule, the FDIC
invoked the good cause exception based
on the unprecedented disruption in
credit markets resulting from the severe
financial conditions that threaten the
nation’s economy and the stability of
the banking system. (Nonetheless, the
FDIC solicited comments on the interim
rule, and has fully considered the
comments that were submitted.) For
similar reasons, the FDIC confirms that
the good cause exception, provided for
in section 553(b)(B) of the APA, applies
to the final rule.
Section 553(d)(3) of the APA provides
that the publication of a rule shall be
made not less than 30 days before its
effective date, except ‘‘* * * (3) as
otherwise provided by the agency for
good cause found and published with
the rule.’’ For reasons that supported its
invocation of the good cause exception
to section 553(b)(B) of the APA, the
FDIC relied upon the good cause
exception to section 553(d)(3) and
published the interim rule with an
immediate effective date. For similar
reasons, the FDIC invokes the good
cause exception provided for in section
553(d)(3) and provides for an immediate
effective date for this final rule.
B. Riegle Community Development and
Regulatory Improvement Act
The Riegle Community Development
and Regulatory Improvement Act
(RCDRIA) provides that any new
regulations or amendments to
regulations prescribed by a Federal
banking agency that impose additional
reporting, disclosures, or other new
requirements on IDIs shall take effect on
the first day of a calendar quarter which
begins on or after the date on which the
regulations are published in final form,
unless the agency determines, for good
cause published with the rule, that the
rule should become effective before
such time.11 For the same reasons
obtain the prior approval of, the FDIC in order to
issue non-guaranteed debt that matures before June
30, 2012. No additional fee would be payable to the
FDIC in order to issue such debt.
11 12 U.S.C. 4802.
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discussed above, the FDIC finds that
good cause exists for an immediate
effective date for the final rule.
C. Small Business Regulatory
Enforcement Fairness Act
The Office of Management and Budget
(OMB) has determined that this final
rule is not a ‘‘major rule’’ within the
meaning of the relevant sections of the
Small Business Regulatory Enforcement
Act of 1996 (SBREFA), 5 U.S.C. 801 et
seq. As required by SBREFA, the FDIC
will file the appropriate reports with
Congress and the Government
Accountability Office so that the interim
rule may be reviewed.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub.
L. 96–354, Sept. 19, 1980) (RFA) applies
only to rules for which an agency
publishes a general notice of proposed
rule making pursuant to 5 U.S.C. 553(b).
As discussed above, consistent with
section 553(b)(B) of the APA, the FDIC
has determined for good cause that
general notice and opportunity for
public comment would be impracticable
and contrary to the public interest.
Therefore, the RFA, pursuant to 5 U.S.C.
601(2), does not apply.
E. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.), an agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The interim rule
contained two reporting requirements
that revised an existing OMB-approved
information collection, entitled the
‘‘Temporary Liquidity Guarantee
Program (OMB No. 3064–0166). Both
reporting requirements are retained in
the final rule. Specifically, section
370.3(h)(1)(vi) requires certain
participating entities that did not issue
FDIC-guaranteed debt before April 1,
2009 and that wish to participate in the
extended DGP to submit a written
application to the FDIC. Any such
application must be submitted on or
before June 30, 2009. In addition,
section 370.3(h)(1)(vii) requires certain
participating entities that wishes to
issue non-FDIC-guaranteed debt after
June 30, 2009, to submit a written
application to the FDIC. The estimated
burden for the new applications, as set
forth in the interim and final rules, is as
follows:
Title: Temporary Liquidity Guarantee
Program.
OMB Number: 3064–0166.
Estimated Number of Respondents:
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Application to issue non-guaranteed
debt—1,000.
Application by a certain participating
entity that has not issued FDICguaranteed debt before April 1, 2009, to
participate in the extended DGP–25.
Frequency of Response:
Application to issue non-guaranteed
debt—once.
Application by a certain participating
entity that has not issued FDICguaranteed debt before April 1, 2009, to
participate in the extended DGP—once.
Affected Public: IDIs, thrift holding
companies, bank and financial holding
companies, and affiliates of IDIs.
Average time per response:
Application to issue non-guaranteed
debt—2 hours.
Application by a certain participating
entity that has not issued FDICguaranteed debt before April 1, 2009, to
participate in the extended DGP—2
hours.
Estimated Annual Burden:
Application to issue non-guaranteed
debt—2,000 hours.
Application by a certain participating
entity that has not issued FDICguaranteed debt before April 1, 2009, to
participate in the extended DGP—50
hours.
Previous annual burden—2,201,625
hours.
Total new burden—2,050.
Total annual burden—2,203,675
hours.
On March 17, 2009, the FDIC
requested and received approval under
OMB’s emergency clearance procedures
to revise the Temporary Liquidity
Guarantee Program information
collection to incorporate the paperwork
burden associated with applications to
issue non-guaranteed debt and
applications to participate in the
extended DGP. The interim rule
document requested comment on the
paperwork burden; however, no
responsive comments to this request
were received. With issuance of the
final rule, the FDIC will follow its
request for OMB approval under
emergency clearance procedures with a
request for approval under normal
clearance procedures, including an
initial 60-day request, and subsequent
30-day request, for comments on: (1)
Whether this collection of information
is necessary for the proper performance
of the FDIC’s functions, including
whether the information has practical
utility; (2) the accuracy of the estimates
of the burden of the information
collection, including the validity of the
methodologies and assumptions used;
(3) ways to enhance the quality, utility,
and clarity of the information to be
collected; and (4) ways to minimize the
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G. The Treasury and General
Government Appropriations Act, 1999—
Assessment of Federal Regulations and
Policies on Families
The FDIC has determined that this
final rule will not affect family wellbeing within the meaning of section 654
of the Treasury and General
Government Appropriations Act,
enacted as part of the Omnibus
Consolidated and Emergency and
Emergency Supplemental
Appropriations Act of 1999 (Pub. L.
105–277, 112 Stat. 2681).
F. Solicitation of Comments on Use of
Plain Language
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burden of the information collection on
respondents, including through the use
of automated collection techniques or
other forms of information technology.
Pending publication of the initial 60-day
notice, interested parties are invited to
submit written comments on the
estimated burden for applications to
issue non-guaranteed debt and to
participate in the extended DGP by any
of the following methods:
• https://www.FDIC.gov/regulations/
laws/federal/propose.html.
• E-mail: comments@fdic.gov.
Include the name and number of the
collection in the subject line of the
message.
• Mail: Leneta Gregorie (202–898–
3719), Counsel, Federal Deposit
Insurance Corporation, 550 17th Street,
NW., Washington, DC 20429.
• Hand Delivery: Comments may be
hand-delivered to the guard station at
the rear of the 550 17th Street Building
(located on F Street), on business days
between 7 a.m. and 5 p.m.
A copy of the comment may also be
submitted to the OMB Desk Officer for
the FDIC, Office of Information and
Regulatory Affairs, Office of
Management and Budget, New
Executive Office Building, Room 3208,
Washington, DC 20503. All comments
should refer to the name and number of
the collection.
ENVIRONMENTAL PROTECTION
AGENCY
Section 722 of the Gramm-LeachBliley Act, Public Law 106–102, 113
Stat. 1338, 1471 (Nov. 12, 1999),
requires the federal banking agencies to
use plain language in all proposed and
final rules published after January 1,
2000. The FDIC invites your comments
on how to make this regulation easier to
understand. For example:
• Has the FDIC organized the material
to suit your needs? If not, how could
this material be better organized?
• Are the requirements in the
regulation clearly stated? If not, how
could the regulation be more clearly
stated?
• Does the regulation contain
language or jargon that is not clear? If
so, which language requires
clarification?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the regulation
easier to understand? If so, what
changes to the format would make the
regulation easier to understand?
• What else could the FDIC do to
make the regulation easier to
understand?
40 CFR Part 52
VerDate Nov<24>2008
15:33 Jun 02, 2009
Jkt 217001
List of Subjects in 12 CFR Part 370
Banks, Banking, Bank deposit
insurance, Holding companies, National
banks, Reporting and recordkeeping
requirements, Savings associations.
■ Accordingly, the interim rule
amending 12 CFR Part 370, which was
published at 74 FR 12078 on March 23,
2009, is adopted as a final rule without
change.
Dated at Washington, DC, this 29th day of
May 2009.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Robert E. Feldman,
Executive Secretary.
[FR Doc. E9–12943 Filed 6–2–09; 8:45 am]
BILLING CODE 6714–01–P
[EPA–R09–OAR–2009–0314; FRL–8906–1]
Revisions to the California State
Implementation Plan, San Diego Air
Pollution Control District
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is taking direct final
action to approve revisions to the San
Diego Air Pollution Control District
(SDAPCD) portion of the California
State Implementation Plan (SIP). Rule
27.1—Federal Requirements for the San
Diego County Air Pollution Control
District’s Alternative Mobile Source
Emission Reduction Program Approved
on September 8, 2000, will allow
stationary sources to use emission
reduction credits of nitrogen oxides
(NOX) generated from mobile sources as
New Source Review (NSR) offsets. We
are approving Rule 27.1 under authority
of the Clean Air Act as amended in 1990
(CAA or the Act).
DATES: This rule is effective on August
3, 2009 without further notice, unless
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
26525
EPA receives adverse comments by July
6, 2009. If we receive such comment, we
will publish a timely withdrawal in the
Federal Register to notify the public
that this rule will not take effect.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2009–0314, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions.
• E-mail: R9airpermits@epa.gov.
• Mail or deliver: Gerardo Rios (Air3), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
https://www.regulations.gov or e-mail.
https://www.regulations.gov is an
‘‘anonymous access’’ system, and EPA
will not know your identity or contact
information unless you provide it in the
body of your comment. If you send email directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section
below.
FOR FURTHER INFORMATION CONTACT:
Shaheerah Kelly, Permits Office (AIR–
3), U.S. Environmental Protection
Agency, Region IX, (415) 947–4156,
kelly.shaheerah@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
E:\FR\FM\03JNR1.SGM
03JNR1
Agencies
[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26521-26525]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12943]
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 370
RIN 3064-AD37
Amendment of the Temporary Liquidity Guarantee Program To Extend
the Debt Guarantee Program and To Impose Surcharges on Assessments for
Certain Debt Issued on or After April 1, 2009
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The FDIC is issuing this final rule to amend the Temporary
Liquidity Guarantee Program (TLGP) by providing a limited extension of
the Debt Guarantee Program (DGP) for insured depository institutions
(IDIs) participating in the DGP. The extended DGP also applies to other
participating entities; however, other participating entities that did
not issue FDIC-guaranteed debt before April 1, 2009 are required to
submit an application to and obtain approval from the FDIC to
participate in the extended DGP. The final rule imposes surcharges on
certain debt issued on or after April 1, 2009. Any surcharge collected
will be deposited into the Deposit Insurance Fund (DIF or Fund). The
final rule also establishes an application process whereby entities
participating in the extended DGP may apply to issue non-FDIC-
guaranteed debt during the extension period. The final rule restates
without change the interim rule published in the Federal Register by
the FDIC on March 23, 2009.\1\
---------------------------------------------------------------------------
\1\ 74 FR 12078 (March 23, 2009).
---------------------------------------------------------------------------
DATES: Effective June 3, 2009.
FOR FURTHER INFORMATION CONTACT: Mark L. Handzlik, Senior Attorney,
Legal Division, (202) 898-3990 or mhandzlik@fdic.gov; Robert C. Fick,
Counsel, Legal Division, (202) 898-8962 or rfick@fdic.gov; A. Ann
Johnson, Counsel, Legal Division, (202) 898-3573 or aajohnson@fdic.gov;
(for questions or comments related to applications) Lisa D Arquette,
Associate Director, Division of Supervision and Consumer Protection,
(202) 898-8633 or larquette@fdic.gov; Serena L. Owens, Associate
Director, Supervision and Applications Branch, Division of Supervision
and Consumer Protection, (202) 898-8996 or sowens@fdic.gov; Gail
Patelunas, Deputy Director, Division of Resolutions and Receiverships,
(202) 898-6779 or gpatelunas@fdic.gov; Donna Saulnier, Manager,
Assessment Policy Section, Division of Finance, (703) 562-6167 or
dsaulnier@fdic.gov; or Munsell St. Clair, Chief, Bank and Regulatory
Policy Section, Division of Insurance and Research, (202) 898-8967 or
mstclair@fdic.gov.
SUPPLEMENTARY INFORMATION
I. Background
The FDIC adopted the TLGP in October 2008 following a determination
of systemic risk by the Secretary of the Treasury (after consultation
with the President) that was supported by recommendations from the FDIC
and the Board of Governors of the Federal Reserve System (Federal
Reserve).\2\ The TLGP is part of a coordinated effort by the FDIC, the
U.S. Department of the Treasury (Treasury), and the Federal Reserve to
address unprecedented disruptions in credit markets and the resultant
inability of financial institutions to fund themselves and make loans
to creditworthy borrowers.
---------------------------------------------------------------------------
\2\ See Section 13(c)(4)(G) of the Federal Deposit Insurance Act
(FDI Act), 12 U.S.C. 1823(c)(4)(G). The determination of systemic
risk authorized the FDIC to take actions to avoid or mitigate
serious adverse effects on economic conditions or financial
stability, and the FDIC implemented the TLGP in response.
Section 9(a) Tenth of the FDI Act, 12 U.S.C. 1819(a)Tenth,
provides additional authority for the establishment of the TLGP.
---------------------------------------------------------------------------
The steps taken to stabilize the nation's financial system by the
Congress, the Treasury, and the federal banking agencies have improved
conditions in the U.S. credit markets. While liquidity in the financial
markets has not returned to pre-crisis levels, the TLGP debt guarantee
program has benefited participating IDIs, bank and certain savings and
loan holding companies, and certain of their affiliates by improving
their options for short-term and intermediate-term funding.
On March 17, 2009, the FDIC's Board of Directors (Board) adopted an
interim rule that amended the TLGP by providing for a limited extension
of the DGP, imposing surcharges on assessments for certain debt issued
on or after April 1, 2009, and providing procedures to enable
participating entities to issue certain non-guaranteed debt.\3\ This
amendment was designed to reduce market disruption at the conclusion of
the TLGP by facilitating the orderly phase-out of the DGP and
encouraging participating entities to use the limited extension of the
DGP to plan for a successful return to sources of non-FDIC-guaranteed
funding markets.
---------------------------------------------------------------------------
\3\ 74 FR 12078 (March 23, 2009).
---------------------------------------------------------------------------
II. The Interim Rule
On March 17, 2009, the FDIC's Board adopted an interim rule with
request for comment that amended the TLGP by providing for a limited
extension of the DGP, surcharges for certain debt issuances, and
procedures for participating entities to issue certain non-guaranteed
debt. The interim rule was published in the Federal Register on March
23, 2009. As discussed in the section that follows, commenters
generally favored the interim rule. Accordingly, the FDIC is
implementing the interim rule as a final rule without change.
III. Summary of Comments
The FDIC received two comments on the interim rule from groups
representing the banking industry. Both commenters supported the
amendments to the DGP made in the interim rule.
The commenters specifically endorsed the surcharges placed on
certain FDIC-guaranteed debt and made applicable to all participating
entities that issued FDIC-guaranteed debt after April 1, 2009. In the
event of the diminution of the Deposit Insurance Fund (DIF) caused by
TLGP losses, if any, the commenters noted that only IDIs would be
required to fund a special assessment to replenish the DIF, though IDIs
have not been the primary users of the program.\4\ Depositing
surcharges directly into the DIF was viewed by these commenters as an
appropriate recognition of the possible exposure that all IDIs, both
participating and non-participating, could face in the event of losses
caused by the TLGP. The commenters also welcomed the potential for a
corresponding decrease in standard assessments for IDIs that could
result from the deposit of the surcharges into the DIF.
---------------------------------------------------------------------------
\4\ Section 204(d) of the Helping Families Save Their Homes Act
of 2009 (Pub. L. 111-22), enacted on May 20, 2009, authorized the
FDIC to impose a special assessment on depository institution
holding companies (with the concurrence of the Secretary of the
Treasury) to recover losses to the Deposit Insurance Fund arising
from action taken or assistance provided with respect to an insured
depository institution following a system risk determination made
pursuant to section 13(c)(4)(G)(i) of the Federal Deposit Insurance
Act.
---------------------------------------------------------------------------
[[Page 26522]]
One commenter applauded the FDIC's efforts to unwind the DGP as
described in the interim rule. The commenter favorably noted that the
interim rule encouraged participating entities to return to the non-
FDIC-guaranteed debt market by, for example, establishing procedures
for issuing non-FDIC-guaranteed debt during the extended DGP and
implementing the aforementioned surcharges.
Noting the changes that have occurred in the TLGP since its
inception in October 2008, one commenter suggested that the FDIC
provide a second opportunity for eligible entities to opt-in to the
program. As the FDIC stated in the interim rule, the purpose of the
amendments to the TLGP are to ensure an orderly phase-out of the
program. Providing a second opportunity to opt-in to the DGP would be
contrary to this effort. The FDIC believes that the TLGP has provided
reliable and cost-efficient liquidity support to financial institutions
with demonstrated funding needs. Institutions that have elected to opt-
out of the TLGP are perceived as less likely to have such funding needs
and, therefore, the FDIC believes that providing a second opportunity
to opt-in to the DGP--as the program winds down--would be of marginal
benefit to the industry.
One commenter suggested that the interim rule be revised to permit
an IDI with capacity under its existing debt limit to transfer that
capacity to its holding company so that the guaranteed debt could be
issued by the holding company rather than by the IDI. Under the TLGP,
debt guarantee limits were based on the liquidity needs of an entity as
determined by senior unsecured debt outstanding on September 30, 2008
(or 2 percent of liabilities for IDIs without any outstanding senior
unsecured debt on September 30, 2008). Holding companies that regularly
issued debt on behalf of its subsidiary IDIs presumably would have had
such debt outstanding on September 30, 2008, and their debt guarantee
limits for purposes of the TLGP would have been established
accordingly. The purpose of the TLGP was not to establish a new or
expanded debt market for holding companies. Instead, a primary focus of
the TLGP was to encourage interbank lending. Without case-by-case
analysis, the FDIC believes it would be inconsistent with the purpose
of the TLGP to permit any holding company that had not previously
issued debt on behalf of its subsidiary IDI to rely on its IDI's debt
limit to establish or enhance its own debt issuances. The FDIC notes,
however, that part 370 permits any participating entity to request an
increase in its debt guarantee limit, and the FDIC will continue to
consider such applications on a case-by-case basis.\5\
---------------------------------------------------------------------------
\5\ 12 CFR 370.3(h)(1)(i).
---------------------------------------------------------------------------
IV. The Final Rule
The FDIC has implemented the interim rule as a final rule without
change. As discussed below, the final rule restates the three primary
amendments to the TLGP announced in the interim rule: it provides for a
limited extension of the DGP; imposes surcharges on assessments for
certain debt issuances; and establishes procedures whereby a
participating entity can apply to issue certain debt that is not
guaranteed by the FDIC.
A. Extension of the Debt Guarantee Program for IDIs Participating in
the TLGP
Under the version of the DGP that existed before the interim rule
was issued, participating entities were permitted to issue senior
unsecured debt until June 30, 2009. The FDIC guarantee for such this
debt extended until the earlier of the maturity of the debt or June 30,
2012.
Like the interim rule, the final rule provides a limited four-month
extension for the issuance of debt under the DGP and is consistent with
extensions to other liquidity programs recently announced by the
Federal Reserve.\6\ The final rule permits all IDIs participating in
the DGP to issue FDIC-guaranteed senior unsecured debt until October
31, 2009. For debt issued on or after April 1, 2009, the final rule
restates without change those provisions of the interim rule that
extended the FDIC's guarantee until the earliest of the opt-out date,
the maturity of the debt, the mandatory conversion date for mandatory
convertible debt, or December 31, 2012.
---------------------------------------------------------------------------
\6\ 2009 Monetary Press Release, Release Date: February 3, 2009,
https://www.federalreserve.gov/newsevents/press/monetary/20090203a.htm (last visited February 20, 2009) (announcing four-
month extensions until October 2009 of six liquidity programs
originally scheduled to expire in April 2009).
---------------------------------------------------------------------------
B. Extension of the Debt Guarantee Program for Other Entities
Participating in the TLGP
As with the interim rule, the final rule permits other
participating entities that issued FDIC-guaranteed debt before April 1,
2009, to participate in the extended DGP without application. However,
other participating entities that did not issue FDIC-guaranteed debt
before April 1, 2009, are required to apply to and receive approval
from the FDIC to participate in the extended DGP.\7\ The deadline for
submitting an application to participate in the extended DGP continues
to be June 30, 2009. The FDIC will review such applications on a case-
by-case basis. Absent such application and approval, the FDIC's
guarantee will expire for such entities no later than June 30, 2012.
---------------------------------------------------------------------------
\7\ Unlike IDIs (for whom the FDIC has either primary or backup
supervision authority) and other participating entities that issued
debt before April 1, 2009 (for whom the FDIC is aware of current
debt issuances and the evolving financial condition of those
entities), for other participating entities that did not issue debt
before April 1, 2009, the FDIC has chosen to mitigate its risk
during the extension period by establishing an application process
that will enable the FDIC to become more familiar with the current
financial situation for these entities and with their plans for
issuing debt during the extension period.
---------------------------------------------------------------------------
This final rule will not change a participating entity's existing
debt guarantee limit or affect any conditions that the FDIC may have
placed on the issuance of debt by an IDI or other participating entity.
In addition, the FDIC reiterates that, consistent with prudent
liquidity management practices, issuance levels under the DGP should be
consistent with existing funding plans and estimated liquidity needs.
The chart that follows provides a summary of the relevant dates for
entities that participate (and those that do not participate) in the
extended DGP.
[[Page 26523]]
----------------------------------------------------------------------------------------------------------------
Guarantee expiration
Application date Issue date date
----------------------------------------------------------------------------------------------------------------
IDIs currently participating in the Not required to submit Senior unsecured debt For debt issued on or
DGP, and other participating an application to may be issued no later after April 1, 2009,
entities that have issued FDIC- participate in the than Oct. 31, 2009. FDIC-guarantee of
guaranteed debt before April 1, 2009. extension of the DGP. senior unsecured debt
expires on the
earliest of the
mandatory conversion
date for mandatory
convertible debt, the
stated date of
maturity, or Dec. 31,
2012.
----------------------------------------------------------------------------------------------------------------
Other participating entities that Application due on or With FDIC approval, For debt issued on or
have not issued FDIC-guaranteed debt before June 30, 2009. senior unsecured debt after April 1, 2009,
before April 1, 2009, which have may be issued no later with FDIC approval,
received approval to participate in than Oct. 31, 2009. FDIC-guarantee of
the extension of the DGP. senior unsecured debt
expires on the
earliest of the
mandatory conversion
date for mandatory
convertible debt, the
stated date of
maturity, or Dec. 31,
2012.
----------------------------------------------------------------------------------------------------------------
Other participating entities N/A.................... Senior unsecured debt FDIC-guarantee of
currently participating in the DGP, may be issued no later senior unsecured debt
but not participating in the than June 30, 2009. expires on the
extension of the DGP. earliest of the
mandatory conversion
date for mandatory
convertible debt, the
stated date of
maturity, or June 30,
2012.
----------------------------------------------------------------------------------------------------------------
C. Surcharges on Assessments for Certain Debt Issued on or After April
1, 2009
As with the interim rule, surcharges provided for in the final rule
will continue to be imposed on an annualized basis and apply only to
FDIC-guaranteed debt with maturities (or, in the case of mandatory
convertible debt, time periods to conversion) of at least one year; the
assessment rates for shorter term FDIC-guaranteed debt remain
unchanged, as do the rates for guaranteed debt issued before April 1,
2009.
For FDIC-guaranteed debt with maturities (or, in the case of
mandatory convertible debt, time periods to conversion) of at least one
year issued on or after April 1, 2009, until and including June 30,
2009, and maturing on or before June 30, 2012, the annualized surcharge
on the assessments continues to be 10 basis points for IDIs and 20
basis points for other participating entities, as provided for in the
interim rule.
Like the interim rule, the final rule also imposes an additional
surcharge on assessments for FDIC-guaranteed debt issued under the
extended DGP--that is, FDIC-guaranteed debt issued after June 30, 2009
and on or before October 31, 2009, or FDIC-guaranteed debt issued on or
after April 1, 2009 with a maturity date after June 30, 2012. The
annualized surcharge on the assessments for IDIs is 25 basis points.
For other participating entities that issued FDIC-guaranteed debt under
the DGP before April 1, 2009 (and for such entities that did not issue
FDIC-guaranteed debt under the DGP before April 1, 2009, but that have
been approved by the FDIC to participate in the extended DGP), the
annualized surcharge on assessments is 50 basis points.
The final rule provides that the surcharges on assessments imposed
on both IDIs and other participating entities remain the same as
provided for in the interim rule.\8\ As such, the surcharges for IDIs
would remain slightly lower than those imposed on other entities
participating in the DGP. The FDIC believes that this differential
remains appropriate because entities other than IDIs, for which the
FDIC has limited supervisory authority, present more uncertainty to the
FDIC.
---------------------------------------------------------------------------
\8\ Recent amendments to the FDI Act provide the FDIC with
additional authority to make special emergency assessments of both
IDIs and depository institution holding companies (with the
concurrence of the Secretary of the Treasury), if necessary. See
footnote 4.
---------------------------------------------------------------------------
Unlike other TLGP fees, which are reserved for possible TLGP losses
and not generally available for DIF purposes, the amount of any
surcharge collected in connection with the extended DGP will be
deposited into the DIF and used by the FDIC when calculating the
reserve ratio of the Fund. The FDIC has every expectation that the TLGP
will pay for itself and has set TLGP fees accordingly.
The surcharge provisions recognize that a relatively small portion
of the industry is actively using the DGP, but all IDIs ultimately bear
the risk that a systemic risk assessment might be necessary to recover
any excess losses attributable to the program. The surcharge is
intended to compensate the DIF members, even those that did not issue
FDIC-guaranteed debt, by increasing funds deposited directly into the
DIF, for bearing the risk that TLGP fees will be insufficient and that
a systemic risk assessment will be levied.
The surcharges also are intended to reduce the subsidy provided by
the DGP and to encourage institutions to seek funding in ways that do
not involve government guarantees, so that the DGP can be unwound in an
orderly fashion. The DGP extension also partially addresses potential
competitive disparities with similar programs in other countries. The
FDIC anticipates that the amount of revenue that the surcharge produces
will enable the FDIC to reduce the amount of the special assessment
provided for in the interim rule adopted on February 27, 2009.\9\
---------------------------------------------------------------------------
\9\ See 74 FR 9525 (March 4, 2009).
---------------------------------------------------------------------------
D. Opportunity To Apply To Issue Non-Guaranteed Debt
As with the interim rule, the final rule provides that any entities
participating in the extended DGP may apply to the FDIC to issue non-
FDIC-guaranteed debt after June 30, 2009. If approved, such entities
may issue non-guaranteed debt after June 30, 2009, with any maturity
and without paying any additional fee to the FDIC.\10\
---------------------------------------------------------------------------
\10\ Some participating entities elected to pay a fee to issue
long-term non-guaranteed debt that could mature beyond June 30,
2012, pursuant to 12 CFR 370.6(f). These entities may continue to
issue long-term non-guaranteed debt without additional application
to the FDIC.
If those entities are eligible to participate in the extension
of the TLGP, the final rule, like the interim rule, requires such
entities to apply to, and obtain the prior approval of, the FDIC in
order to issue non-guaranteed debt that matures before June 30,
2012. No additional fee would be payable to the FDIC in order to
issue such debt.
---------------------------------------------------------------------------
[[Page 26524]]
V. Regulatory Analysis and Procedure
A. Administrative Procedure Act
The process of amending Part 370 by means of this final rule is
governed by the Administrative Procedure Act (APA). Pursuant to section
553(b)(B) of the APA, general notice and opportunity for public comment
are not required with respect to a rule making when an agency for good
cause finds that ``notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.''
Consistent with section 553(b)(B) of the APA, in publishing the interim
rule, the FDIC invoked the good cause exception based on the
unprecedented disruption in credit markets resulting from the severe
financial conditions that threaten the nation's economy and the
stability of the banking system. (Nonetheless, the FDIC solicited
comments on the interim rule, and has fully considered the comments
that were submitted.) For similar reasons, the FDIC confirms that the
good cause exception, provided for in section 553(b)(B) of the APA,
applies to the final rule.
Section 553(d)(3) of the APA provides that the publication of a
rule shall be made not less than 30 days before its effective date,
except ``* * * (3) as otherwise provided by the agency for good cause
found and published with the rule.'' For reasons that supported its
invocation of the good cause exception to section 553(b)(B) of the APA,
the FDIC relied upon the good cause exception to section 553(d)(3) and
published the interim rule with an immediate effective date. For
similar reasons, the FDIC invokes the good cause exception provided for
in section 553(d)(3) and provides for an immediate effective date for
this final rule.
B. Riegle Community Development and Regulatory Improvement Act
The Riegle Community Development and Regulatory Improvement Act
(RCDRIA) provides that any new regulations or amendments to regulations
prescribed by a Federal banking agency that impose additional
reporting, disclosures, or other new requirements on IDIs shall take
effect on the first day of a calendar quarter which begins on or after
the date on which the regulations are published in final form, unless
the agency determines, for good cause published with the rule, that the
rule should become effective before such time.\11\ For the same reasons
discussed above, the FDIC finds that good cause exists for an immediate
effective date for the final rule.
---------------------------------------------------------------------------
\11\ 12 U.S.C. 4802.
---------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
The Office of Management and Budget (OMB) has determined that this
final rule is not a ``major rule'' within the meaning of the relevant
sections of the Small Business Regulatory Enforcement Act of 1996
(SBREFA), 5 U.S.C. 801 et seq. As required by SBREFA, the FDIC will
file the appropriate reports with Congress and the Government
Accountability Office so that the interim rule may be reviewed.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub. L. 96-354, Sept. 19, 1980)
(RFA) applies only to rules for which an agency publishes a general
notice of proposed rule making pursuant to 5 U.S.C. 553(b). As
discussed above, consistent with section 553(b)(B) of the APA, the FDIC
has determined for good cause that general notice and opportunity for
public comment would be impracticable and contrary to the public
interest. Therefore, the RFA, pursuant to 5 U.S.C. 601(2), does not
apply.
E. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), an agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number. The interim rule
contained two reporting requirements that revised an existing OMB-
approved information collection, entitled the ``Temporary Liquidity
Guarantee Program (OMB No. 3064-0166). Both reporting requirements are
retained in the final rule. Specifically, section 370.3(h)(1)(vi)
requires certain participating entities that did not issue FDIC-
guaranteed debt before April 1, 2009 and that wish to participate in
the extended DGP to submit a written application to the FDIC. Any such
application must be submitted on or before June 30, 2009. In addition,
section 370.3(h)(1)(vii) requires certain participating entities that
wishes to issue non-FDIC-guaranteed debt after June 30, 2009, to submit
a written application to the FDIC. The estimated burden for the new
applications, as set forth in the interim and final rules, is as
follows:
Title: Temporary Liquidity Guarantee Program.
OMB Number: 3064-0166.
Estimated Number of Respondents:
Application to issue non-guaranteed debt--1,000.
Application by a certain participating entity that has not issued
FDIC-guaranteed debt before April 1, 2009, to participate in the
extended DGP-25.
Frequency of Response:
Application to issue non-guaranteed debt--once.
Application by a certain participating entity that has not issued
FDIC-guaranteed debt before April 1, 2009, to participate in the
extended DGP--once.
Affected Public: IDIs, thrift holding companies, bank and financial
holding companies, and affiliates of IDIs.
Average time per response:
Application to issue non-guaranteed debt--2 hours.
Application by a certain participating entity that has not issued
FDIC-guaranteed debt before April 1, 2009, to participate in the
extended DGP--2 hours.
Estimated Annual Burden:
Application to issue non-guaranteed debt--2,000 hours.
Application by a certain participating entity that has not issued
FDIC-guaranteed debt before April 1, 2009, to participate in the
extended DGP--50 hours.
Previous annual burden--2,201,625 hours.
Total new burden--2,050.
Total annual burden--2,203,675 hours.
On March 17, 2009, the FDIC requested and received approval under
OMB's emergency clearance procedures to revise the Temporary Liquidity
Guarantee Program information collection to incorporate the paperwork
burden associated with applications to issue non-guaranteed debt and
applications to participate in the extended DGP. The interim rule
document requested comment on the paperwork burden; however, no
responsive comments to this request were received. With issuance of the
final rule, the FDIC will follow its request for OMB approval under
emergency clearance procedures with a request for approval under normal
clearance procedures, including an initial 60-day request, and
subsequent 30-day request, for comments on: (1) Whether this collection
of information is necessary for the proper performance of the FDIC's
functions, including whether the information has practical utility; (2)
the accuracy of the estimates of the burden of the information
collection, including the validity of the methodologies and assumptions
used; (3) ways to enhance the quality, utility, and clarity of the
information to be collected; and (4) ways to minimize the
[[Page 26525]]
burden of the information collection on respondents, including through
the use of automated collection techniques or other forms of
information technology. Pending publication of the initial 60-day
notice, interested parties are invited to submit written comments on
the estimated burden for applications to issue non-guaranteed debt and
to participate in the extended DGP by any of the following methods:
https://www.FDIC.gov/regulations/laws/federal/propose.html.
E-mail: comments@fdic.gov. Include the name and number of
the collection in the subject line of the message.
Mail: Leneta Gregorie (202-898-3719), Counsel, Federal
Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC
20429.
Hand Delivery: Comments may be hand-delivered to the guard
station at the rear of the 550 17th Street Building (located on F
Street), on business days between 7 a.m. and 5 p.m.
A copy of the comment may also be submitted to the OMB Desk Officer for
the FDIC, Office of Information and Regulatory Affairs, Office of
Management and Budget, New Executive Office Building, Room 3208,
Washington, DC 20503. All comments should refer to the name and number
of the collection.
F. Solicitation of Comments on Use of Plain Language
Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113
Stat. 1338, 1471 (Nov. 12, 1999), requires the federal banking agencies
to use plain language in all proposed and final rules published after
January 1, 2000. The FDIC invites your comments on how to make this
regulation easier to understand. For example:
Has the FDIC organized the material to suit your needs? If
not, how could this material be better organized?
Are the requirements in the regulation clearly stated? If
not, how could the regulation be more clearly stated?
Does the regulation contain language or jargon that is not
clear? If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the regulation easier to
understand? If so, what changes to the format would make the regulation
easier to understand?
What else could the FDIC do to make the regulation easier
to understand?
G. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
The FDIC has determined that this final rule will not affect family
well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency and Emergency Supplemental Appropriations
Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
List of Subjects in 12 CFR Part 370
Banks, Banking, Bank deposit insurance, Holding companies, National
banks, Reporting and recordkeeping requirements, Savings associations.
0
Accordingly, the interim rule amending 12 CFR Part 370, which was
published at 74 FR 12078 on March 23, 2009, is adopted as a final rule
without change.
Dated at Washington, DC, this 29th day of May 2009.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Robert E. Feldman,
Executive Secretary.
[FR Doc. E9-12943 Filed 6-2-09; 8:45 am]
BILLING CODE 6714-01-P