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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Rules and Regulations
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to the brokered deposits restrictions, the balance in the initial account would continue to not be subject to the brokered deposits restrictions so long as no additional funds were accepted. The restrictions would also generally apply to any new nonmaturity brokered deposit accounts opened after the institution falls to below well capitalized.
C. Comments The FDIC did not receive comments in response to the proposed interpretation provided in the Brokered Deposits NPR. However, the FDIC
received a number of comments in response to proposed interpretation provided in the Interest Rate NPR, which are summarized below.
Interest Rate NPR. A national association that represents banks urged the FDIC not to finalize its proposed interpretation regarding nonmaturity deposits. The association wrote that such an interpretation would be operationally unworkable and would require banks to maintain parallel products and systems to be able to track accounts and multiple rates in the event the bank becomes less than well capitalized. The association also noted that forcing a customers rate down, should he or she deposit an additional amount in the account would hurt consumers and likely cause a liquidity stress as customers move their balances elsewhere. Instead, the association recommended that once an institution falls below well capitalized, the FDIC
should exempt or grandfather all existing deposit accounts from the rate restrictions, restricting only new deposits to new accounts opened with the bank. Similarly, another commenter suggested that existing nonmaturity accounts should be exempt from rate caps, even when new funds are added.
A stakeholder in the banking industry pointed out that some banks can and do pay interest at different rates on different parts of a depositors balance, so called tiered interest. The commenter indicated that there is no apparent reason why a bank could not tier interest in a way that would apply an unrestricted rate to the part of the balance that consists of deposits received before the bank became not well capitalized and apply a restricted rate only to new deposits in the account.
The commenter indicated that the restricted interest rate could be applied on a last-in, first-out basis.
D. Final Rule In the final rule, the FDIC is adopting a new interpretation for the solicitation and acceptance of nonmaturity deposits.

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In adopting the interpretation described below, the FDIC is relying on the plain meaning of the terms solicit and accept in a way that it is intended to be operationally workable for institutions and the FDIC. The FDIC
appreciates the operational difficulties described by commenters that institutions may have faced under the proposed interpretation, and has tried to address such difficulties in the final rule while remaining within the parameters of the statutory text.
1. Solicitation of Funds by Offering Rates of Interest Section 29 prohibits a less than well capitalized institution from soliciting deposits by offering a rate of interest that is significantly higher than the prevailing rate. Generally, under the interpretation adopted by this final rule, an institution has solicited a deposit when a new account is opened or when the institution increases the rate of interest on an existing account. If a depositor adds funds to, or withdraws funds from, an existing nonmaturity account, or leaves funds in an existing nonmaturity account, no solicitation by the institution has occurred.
More specifically, for a nonmaturity account opened after the institution has fallen below well capitalized, under the final rule, an institution has solicited the deposit when the account is opened.
For a nonmaturity account opened prior to an institutions PCA status falling below well capitalized, funds already credited to the account at that time have not been solicited by the institution. In addition, an institution will not be considered to have solicited deposits when new funds are added to a nonmaturity account that was opened before the institution fell below well capitalized, unless it has changed the interest rate on the account.
For a nonmaturity account held by a party as agent or nominee of one or more persons, funds are solicited each time the funds of a new beneficial owner are added to, for example, the omnibus account. As a result, a less than well capitalized institution is restricted from soliciting funds of a new beneficial owner at a rate that exceeds its applicable rate caps.
2. Acceptance of Brokered Deposits Section 29 prohibits a less than well capitalized institution from accepting funds obtained, directly or indirectly, by or through any deposit broker for deposit into one or more deposit accounts.
As noted above, for deposits that have a maturity, application of section 29 is straightforward. Funds have been
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accepted whenever a new account is opened, or when funds are renewed or rolled over.
The treatment of nonmaturity deposits is less straightforward. Under this final rule, the FDIC is adopting an interpretation for when a nonmaturity brokered deposit is considered accepted and therefore subject to the brokered deposits restrictions. Generally, the FDIC finds that funds are accepted whenever 1 a depositor adds funds to a newly opened nonmaturity account or, similarly, when funds for a new underlying depositor are credited to an omnibus account in the case of an agent or nominee or 2 for existing nonmaturity accounts, when the aggregate amount of nonmaturity funds accepted by or through a particular deposit broker increases. More specifically, the FDIC is interpreting that for nonmaturity brokered deposits opened prior to an institutions PCA
status falling below well capitalized, funds that were already credited to the nonmaturity accounts at that time, by a particular deposit broker, would not be treated as being accepted. Nonmaturity brokered deposits would be considered accepted in instances when, after an institution becomes less than well capitalized:
a nonmaturity brokered account is opened;
the amount of nonmaturity brokered deposits, by or through a particular deposit broker, increases above the balance of nonmaturity brokered deposits existing at the bank, with respect to that particular deposit broker, at the time of downgrade to less than well capitalized; or for agent or nominee accounts, new funds of a new beneficial owner are added to the account.
Under this interpretation, if an adequately capitalized bank, for example, retained $10 million in nonmaturity brokered deposits from a particular deposit broker prior to the PCA downgrade, then it can continue to receive funds in and out of the nonmaturity brokered accounts maintained by that deposit broker, without seeking a waiver, as long as:
The total amount of nonmaturity brokered deposits from that deposit broker does not increase above $10
million, a new nonmaturity account is not opened, or for agent or nominee accounts new funds of a new beneficial owner are not added to the account. In order for the aggregate amount of nonmaturity funds from that particular deposit broker to increase above $10
million, or in order for a new depositor to place funds into a nonmaturity
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