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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Rules and Regulations account, the institution would need a waiver from the FDIC.
3. Acceptance of Brokered Deposits Subject to a Waiver Into a Nonmaturity Account As noted above, for the purposes of Section 29s interest rate restrictions, in addition to the restrictions on soliciting deposits by offering a rate of interest that is significantly higher than the prevailing rate, an adequately capitalized institution is also subject to interest rate restrictions when it accepts nonmaturity brokered deposits subject to a waiver.
As a result, nonmaturity brokered deposits that are accepted pursuant to a waiver, as described above, would be subject to the applicable rate cap. To take the example above, the institution, upon falling below well capitalized status, would not be restricted by section 29 from paying any rate of interest on nonmaturity funds from that particular deposit broker to existing depositors, so long as the aggregate funds remained below $10 million. The institution could receive a waiver to allow the aggregate funds from that deposit broker for that group of existing depositors to exceed $10 million;
however, the institution would not be permitted to pay a rate of interest in excess of the rate cap on more than $10
million in funds. In the event the institution receives such a waiver, the rule does not distinguish which funds have been accepted pursuant to the waiver, due to the fungibility of funds and the operational challenges in imposing such a regime, and instead restricts the total amount of funds upon which the institution can pay a rate in excess of the applicable rate cap. The rate cap restrictions would also apply to any new accounts opened by or through
the deposit broker after the institution fell below well capitalized.
More specifically, for a nonmaturity account opened prior to an institutions PCA status falling below well capitalized, with respect to a particular deposit broker, brokered funds that were already credited to the nonmaturity account at that time would not be treated as being accepted for purposes of the interest rate restrictions. Funds added to the account after the institution falls below well capitalized, with respect to a particular deposit broker, would be subject to the interest rate restriction to the extent they exceeded 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, if the institution has received a waiver to accept brokered deposits. In addition, with respect to a particular deposit broker, for a nonmaturity account opened after an institution has fallen below well capitalized, the brokered funds will be treated as accepted when the nonmaturity account is opened. For a nonmaturity account held by a party as agent or nominee of one or more persons, with respect to a particular deposit broker, funds are accepted each time funds of a new depositor are added to the omnibus account.
4. Summary of Treatment of Nonmaturity Deposits To summarize, if a bank falls below well capitalized, under this final rule:
The bank may not open a new nonmaturity account that pays an interest rate above the applicable rate cap, nor may it add funds on behalf of a new depositor to an existing nonmaturity account that pays an
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interest rate above the applicable rate cap;
the bank may continue to pay an interest rate above the applicable rate cap on a nonmaturity account opened prior to the bank falling below well capitalized, but may not increase the rate, and a depositor may add funds to and withdraw funds from such account;
without a waiver, a bank may not open a new nonmaturity account by or through a deposit broker, nor may funds on behalf of a new underlying depositor be added to an existing omnibus account in the case of an account of an agent or nominee that is a deposit broker;
without a waiver, the aggregate amount of nonmaturity funds that the bank receives by or through a deposit broker may not exceed the aggregate amount of nonmaturity funds retained from that deposit broker at the time the bank fell below well capitalized, meaning that existing depositors may add funds to or withdraw funds from their nonmaturity accounts so long as the aggregate amount does not exceed the aggregate amount at the time the bank fell below well capitalized;
with a waiver, the aggregate nonmaturity funds received by or through a deposit broker may increase above the aggregate amount at the time the bank fell below well capitalized, subject to the terms of the waiver; and with or without a waiver, the amount of nonmaturity funds from a particular deposit broker on which the bank may pay a rate of interest in excess of the applicable rate cap may not exceed the aggregate amount of nonmaturity funds retained from that deposit broker at the time the bank fell below well capitalized.
Appendix 1

PUBLICLY-AVAILABLE ADVISORY OPINIONS
AO No.

AO title
022

022 Applicability of FDIC Regulations Regarding Brokered Deposits to Credit Unions Servicers That Purchase Certificates of Deposit from FDIC Insured Banks.
024 Opinion Regarding Whether Listing Services Would Be Considered Deposit Brokers.
0403 Questions Concerning Capital Market CD Program.
0404 Question Regarding FDICs Criteria for Determining When a Listing Service is a Deposit Broker.
0405 Questions Regarding Deposit Insurance Coverage of the interest and CD When Interest is Based on the Consumer Price Index.
0502 Are Funds Held in Cash Management Accounts Viewed as Brokered Deposits by the FDIC?
006 Whether Brokered CDs Purchased at Different Institutions Will be Separately Insured After a Merger of Those Institutions.
1301 Question Concerning a Deposit Program.
1501 Question regarding whether Financial Firms that Refer Clients to a Bank Qualify as Deposit Brokers.
1502 Question regarding whether a Company that Designs Deposit Products is Considered a Deposit BrokerPart I.
1503 Question regarding whether a Company that Designs Deposit Products is Considered a Deposit BrokerPart II.
1504 Question regarding whether business professionals qualify as deposit brokers when referring clients to a bank.
1601 Question regarding whether certain Deposits held for Clearing Purposes at an Affiliated Bank are Brokered Deposits.
1701 Question regarding whether deposits placed through a Bank Program to allocate Charitable Donations to local Community Organizations would be Considered Brokered Deposits.

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