Background: Section 29 of the Federal Deposit Insurance Act (FDI Act) restricts the use of brokered deposits and the rate of interest paid on deposits for insured institutions that are less than well-capitalized as defined in Section 38 of the FDI Act. Section 29 restrictions are implemented by Section 337.6 of the FDIC Rules and Regulations. The final rule making certain revisions to the interest-rate restrictions under Section 337.6 of the FDIC Rules and Regulations takes effect on January 1, 2010. The rule redefines the national rate as “a simple average of rates paid by all insured depository institutions and branches for which data are available.” In addition, the prevailing rate in all market areas is deemed to be the national rate as defined by the FDIC. Once the rule takes effect, an institution that believes it is operating in a high-rate area can determine conformance using the prevailing rates in its market area only if it has received a determination from the FDIC that it is operating in a high-rate area.

Determination Requests: Institutions can request a determination that they are operating in a high-rate area by sending a letter to the applicable FDIC regional office. The letter should state the institution is seeking a determination under Part 337.6, interest-rate restrictions. The FDIC will base its decision on average rates for the geographic area in which the institution is operating, using state(s), metropolitan statistical area(s), and micropolitan statistical area(s) data; therefore, the institution should specify its market area(s) in the determination request letter. Specific data supporting the methodology for calculating the institution’s prevailing rate for its local market area will not be considered. The process for establishing high-rate areas is detailed in the attached.

Timing of Requests: Institutions that submit determination requests by December 31, 2009, will receive a response by January 30, 2010. FDIC response letters sent to institutions that are not operating in high-rate areas will instruct the institutions to begin using the national rate caps by March 1, 2010. The national rate caps must be used by institutions that submit determination requests after December 31, 2009, until they have received notice they are operating in a high-rate area. With or without the determination, institutions must use the national rate to determine conformance for all deposits from outside the market area beginning January 1, 2010. Institutions can submit one determination request to the FDIC each quarter

Duration of Determination: The determination received by the institution is effective for the calendar year in which it is granted, but will be rescinded by written notice from the FDIC if, during the calendar year, the institution’s market area no longer meets the requirements for being a high-rate area. Institutions operating in high-rate areas must apply for determinations annually.

Institutions subject to the interest rate restrictions not operating in a high-rate area should use the national rate posted on the FDIC Web site to determine conformance at http://www.fdic.gov/regulations/resources/rates/index.html. If a determination is granted, local deposit rates must not significantly exceed (no more than 75 basis points) the prevailing rate cap for the institution’s market area. The attachment provides background on calculating the prevailing rate cap for a local market. Documentation supporting conformance with the interest-rate restrictions should be available for examiner review.

An overview of the determination process is provided in the chart below.