Congressional staff members think the Federal Deposit Insurance Corp. has the power to close a $400 million loophole in the Savings Association Insurance Fund rescue plan.

But the FDIC, fearful of lawsuits if it takes such action, wants Congress to do the work.

The agency and lawmakers are hashing out a fix, one which could involve what one House Banking staffer called "technical" changes to the savings fund deal already agreed to by the House and Senate.

At issue are $50 billion in thrift deposits that First Union Corp. and other banks have acquired since March. The thrift fund legislation calls for a fee of 85 to 90 cents for every $100 of savings fund deposits held as of March 31, 1995.

That date could be a year old by the time the thrift fund bailout becomes law, and many thrift deposits acquired after that date would escape the fee, according to FDIC interpretation of the law. That would mean a $400 million savings for those who bought the deposits, and a $400 million addition to the bill for thrifts, and for banks that bought thrift deposits before March 31.

Both the FDIC and America's Community Bankers, the thrift trade group, have protested this quirk in the law.

In letters to House and Senate banking committee leaders, ACB President Paul A. Schosberg complained that the bulk of the thrift industry is being forced to "subsidize a nine-month acquisition binge being conducted by others."

Their arguments have garnered sympathy on Capitol Hill, but some congressional staffers say current FDIC rules give the agency sufficient authority to plug the deposit drain. Existing rules governing the routine premium payments that institutions make twice a year force purchasers to pay the outstanding premiums of institutions they acquire. Those rules could apply to the special assessment as well, the staffers said.

But FDIC officials worry the agency will be exposed to court challenges if that everyday rule is applied to the special assessment. To head off a spate of lawsuits, the agency wants Congress to amend the legislation.

Congress may be reluctant, however, to make anything but modest changes to the plan. Staffers from both the Senate and House banking committees have vowed not to reopen the thrift fund bailout, which is attached to the balanced budget plan now being debated by Congress and President Clinton.

But Congress has "some sensitivity to the problem," said a House Banking Committee staffer, and the committees may consider a "technical amendment."

The current provision would be a windfall for many big institutions that have acquired thrifts in the past nine months. One of the biggest beneficiaries would be Charlotte, N.C.-based First Union, which has acquired seven thrifts and could save $74 million.

Bank lobbyists said First Union and others will fight any attempts to make regular premium payment rules applicable to the special assessment.

"You could get yourself a pretty good court case about that," said one lobbyist.

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