WASHINGTON — While the Federal Deposit Insurance Corp. made significant progress Wednesday toward building its new resolution regime, it left a key component still on the table.
As Sheila Bair presided over her last board meeting as FDIC chairman, the agency deferred action on requiring firms to chart their own failures, saying it needed more time to hone the rule on "living wills" with the Federal Reserve Board.
"We were hoping maybe we could get it done today and that didn't happen," said Bair. "I have talked to" Fed Chairman Ben Bernanke "and he has every expectation it will happen before the end of August. … It is important to get this very important rule right."
Yet the board finalized other, more mechanical aspects of the new regime, including the processes for unsecured creditors to seek payments in a receivership, and for the FDIC to claw back compensation from managers at failed firms.
After a crisis stoked by the uncertainty of creditors at troubled companies, Bair said the new claims process — mandated under the Dodd-Frank Act — is intended to make failure scenarios clearer for market participants.
"A fair amount of the goal of the orderly liquidation authority is to convince investors in large financial institutions that their money is at risk if the institution fails," she said.
But Bair, a vocal advocate for Dodd-Frank resolution powers, will have to watch completion of the living-will rules from the sidelines. (She leaves the agency Friday.)
Officials stressed that the FDIC and Fed are not at odds over the rule, but rather the two agencies agree that moving more slowly in creating the living-will process is warranted.
Trade groups and large banking companies had raised numerous concerns about the plan in comment letters, including the need to keep wills confidential, that firms of different sizes should not be subject to identical standards and that scheduling for plan submissions and updates should be more flexible.
"It is a new undertaking and it has some significant implications. I think taking the time to get it right … is certainly the right way to proceed," said John Walsh, acting comptroller of the currency and an FDIC board member.
One of the strictest provisions in the resolution-plan rules — outlined both in Dodd-Frank and the agencies' March proposal — that had elicited industry alarm were repercussions for firms whose living wills are considered subpar. In cases where companies do not satisfy regulators' calls for improvements, the agencies could impose new capital and liquidity requirements, or, more severely, force asset divestitures in order to make a firm easier to resolve.
The agency has already instituted one change. Before Dodd-Frank passed, the FDIC had proposed under existing authority resolution-plan requirements for large insured depository institutions, but some commenters objected to those standards being cut off from the living-will measure in the reform law. On Wednesday, officials said they were now integrating the two rulemakings.
"We all agree they should be synched up and moved together," Bair said.
FDIC deputy general counsel Richard Osterman Jr., who gave the board a staff-level update about the rulemaking, said industry comments had "raised a number of helpful points."
"They addressed substantive resolution-plan requirements. Generally, there was discussion regarding the concern about maintaining confidentiality of information because this will by its nature be very sensitive information that we will be receiving. They also raised issues and comments regarding how the timing might be implemented," Osterman said.
"We've had several meetings since the comment period ended with our colleagues at the Federal Reserve Board. We at this point have no difference in approach or philosophy on how to proceed and we're very close to finalizing the way we expect to bring this case to the board for resolution in the very near future."
Separately, the FDIC included some changes in its final rule on the mechanics of the resolution regime.
The claims process, first proposed in March, is meant to resemble the priority order normally used to resolve failed banks. Generally, unsecured claims follow those of the FDIC and secured creditors, with any shareholder equity coming last. However, Dodd-Frank wanted certain elements of the nonbank creditor order — unlike that of traditional FDIC receiverships — to also be aligned with the bankruptcy code.
Changes included a clarification that the FDIC would only need to prove "negligence" when recouping pay from an executive or director at a failed firm, rather than the tougher standard of "gross negligence."
The final rule, unlike the proposal, also leaves undecided the process for determining if a company is "financial in nature," and therefore subject to the resolution regime. The FDIC said it will now coordinate that process with the Fed, which under Dodd-Frank must make a similar determination for which systemically important firms qualify for a new supervision regime.