Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Capital Adequacy, Transition Provisions, Prompt Corrective Action, Standardized Approach for Risk-weighted Assets, Market Discipline and Disclosure Requirements, Advanced Approaches Risk-Based Capital Rule, and Market Risk Capital Rule, 55339-55598 [2013-20536]

Download as PDF Vol. 78 Tuesday, No. 175 September 10, 2013 Part II Federal Deposit Insurance Corporation emcdonald on DSK67QTVN1PROD with RULES2 12 CFR Parts 303, 308, 324, et al. Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Capital Adequacy, Transition Provisions, Prompt Corrective Action, Standardized Approach for Risk-weighted Assets, Market Discipline and Disclosure Requirements, Advanced Approaches Risk-Based Capital Rule, and Market Risk Capital Rule; Interim Final Rule VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\10SER2.SGM 10SER2 55340 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303, 308, 324, 327, 333, 337, 347, 349, 360, 362, 363, 364, 365, 390, and 391 RIN 3064–AD95 Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Capital Adequacy, Transition Provisions, Prompt Corrective Action, Standardized Approach for Riskweighted Assets, Market Discipline and Disclosure Requirements, Advanced Approaches Risk-Based Capital Rule, and Market Risk Capital Rule Federal Deposit Insurance Corporation. ACTION: Interim final rule with request for comments. AGENCY: The Federal Deposit Insurance Corporation (FDIC) is adopting an interim final rule that revises its risk-based and leverage capital requirements for FDICsupervised institutions. This interim final rule is substantially identical to a joint final rule issued by the Office of the Comptroller of the Currency (OCC) and the Board of Governors of the Federal Reserve System (Federal Reserve) (together, with the FDIC, the agencies). The interim final rule consolidates three separate notices of proposed rulemaking that the agencies jointly published in the Federal Register on August 30, 2012, with selected changes. The interim final rule implements a revised definition of regulatory capital, a new common equity tier 1 minimum capital requirement, a higher minimum tier 1 capital requirement, and, for FDICsupervised institutions subject to the advanced approaches risk-based capital rules, a supplementary leverage ratio that incorporates a broader set of exposures in the denominator. The interim final rule incorporates these new requirements into the FDIC’s prompt corrective action (PCA) framework. In addition, the interim final rule establishes limits on FDICsupervised institutions’ capital distributions and certain discretionary bonus payments if the FDIC-supervised institution does not hold a specified amount of common equity tier 1 capital in addition to the amount necessary to meet its minimum risk-based capital requirements. The interim final rule amends the methodologies for determining risk-weighted assets for all FDIC-supervised institutions. The interim final rule also adopts changes to emcdonald on DSK67QTVN1PROD with RULES2 SUMMARY: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the FDIC’s regulatory capital requirements that meet the requirements of section 171 and section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The interim final rule also codifies the FDIC’s regulatory capital rules, which have previously resided in various appendices to their respective regulations, into a harmonized integrated regulatory framework. In addition, the FDIC is amending the market risk capital rule (market risk rule) to apply to state savings associations. The FDIC is issuing these revisions to its capital regulations as an interim final rule. The FDIC invites comments on the interaction of this rule with other proposed leverage ratio requirements applicable to large, systemically important banking organizations. This interim final rule otherwise contains regulatory text that is identical to the common rule text adopted as a final rule by the Federal Reserve and the OCC. This interim final rule enables the FDIC to proceed on a unified, expedited basis with the other federal banking agencies pending consideration of other issues. Specifically, the FDIC intends to evaluate this interim final rule in the context of the proposed well-capitalized and buffer levels of the supplementary leverage ratio applicable to large, systemically important banking organizations, as described in a separate Notice of Proposed Rulemaking (NPR) published in the Federal Register August 20, 2013. The FDIC is seeking commenters’ views on the interaction of this interim final rule with the proposed rule regarding the supplementary leverage ratio for large, systemically important banking organizations. DATES: Effective date: January 1, 2014. Mandatory compliance date: January 1, 2014 for advanced approaches FDICsupervised institutions; January 1, 2015 for all other FDIC-supervised institutions. Comments on the interim final rule must be received no later than November 12, 2013. ADDRESSES: You may submit comments, identified by RIN 3064–AD95, by any of the following methods: • Agency Web site: https:// www.fdic.gov/regulations/laws/federal/ propose.html. Follow instructions for submitting comments on the Agency Web site. • Email: Comments@fdic.gov. Include the RIN 3064–AD95 on the subject line of the message. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 • Hand Delivery: Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7:00 a.m. and 5:00 p.m. Public Inspection: All comments received must include the agency name and RIN 3064–AD95 for this rulemaking. All comments received will be posted without change to https:// www.fdic.gov/regulations/laws/federal/ propose.html, including any personal information provided. Paper copies of public comments may be ordered from the FDIC Public Information Center, 3501 North Fairfax Drive, Room E–1002, Arlington, VA 22226 by telephone at (877) 275–3342 or (703) 562–2200. FOR FURTHER INFORMATION CONTACT: Bobby R. Bean, Associate Director, bbean@fdic.gov; Ryan Billingsley, Chief, Capital Policy Section, rbillingsley@ fdic.gov; Karl Reitz, Chief, Capital Markets Strategies Section, kreitz@ fdic.gov; David Riley, Senior Policy Analyst, dariley@fdic.gov; Benedetto Bosco, Capital Markets Policy Analyst, bbosco@fdic.gov, regulatorycapital@ fdic.gov, Capital Markets Branch, Division of Risk Management Supervision, (202) 898–6888; or Mark Handzlik, Counsel, mhandzlik@fdic.gov; Michael Phillips, Counsel, mphillips@ fdic.gov; Greg Feder, Counsel, gfeder@ fdic.gov; Ryan Clougherty, Senior Attorney, rclougherty@fdic.gov; or Rachel Jones, Attorney, racjones@ fdic.gov, Supervision Branch, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. Summary of the Three Notices of Proposed Rulemaking A. The Basel III Notice of Proposed Rulemaking B. The Standardized Approach Notice of Proposed Rulemaking C. The Advanced Approaches Notice of Proposed Rulemaking III. Summary of General Comments on the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking; Overview of the Interim Final Rule A. General Comments on the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking 1. Applicability and Scope 2. Aggregate Impact 3. Competitive Concerns 4. Costs B. Comments on Particular Aspects of the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 1. Accumulated Other Comprehensive Income 2. Residential Mortgages 3. Trust Preferred Securities for Smaller FDIC-Supervised Institutions C. Overview of the Interim Final Rule D. Timeframe for Implementation and Compliance IV. Minimum Regulatory Capital Ratios, Additional Capital Requirements, and Overall Capital Adequacy A. Minimum Risk-Based Capital Ratios and Other Regulatory Capital Provisions B. Leverage Ratio C. Supplementary Leverage Ratio for Advanced Approaches FDIC-Supervised Institutions D. Capital Conservation Buffer E. Countercyclical Capital Buffer F. Prompt Corrective Action Requirements G. Supervisory Assessment of Overall Capital Adequacy H. Tangible Capital Requirement for State Savings Associations V. Definition of Capital A. Capital Components and Eligibility Criteria for Regulatory Capital Instruments 1. Common Equity Tier 1 Capital 2. Additional Tier 1 Capital 3. Tier 2 Capital 4. Capital Instruments of Mutual FDICSupervised Institutions 5. Grandfathering of Certain Capital Instruments 6. Agency Approval of Capital Elements 7. Addressing the Point of Non-Viability Requirements Under Basel III 8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries of an FDICSupervised Institution 9. Real Estate Investment Trust Preferred Capital B. Regulatory Adjustments and Deductions 1. Regulatory Deductions from Common Equity Tier 1 Capital a. Goodwill and Other Intangibles (other than Mortgage Servicing Assets) b. Gain-on-Sale Associated with a Securitization Exposure c. Defined Benefit Pension Fund Net Assets d. Expected Credit Loss That Exceeds Eligible Credit Reserves e. Equity Investments in Financial Subsidiaries f. Deduction for Subsidiaries of Savings Associations That Engage in Activities That Are Not Permissible for National Banks g. Identified Losses for State Nonmember Banks 2. Regulatory Adjustments to Common Equity Tier 1 Capital a. Accumulated Net Gains and Losses on Certain Cash-Flow Hedges b. Changes in an FDIC-Supervised Institution’s Own Credit Risk c. Accumulated Other Comprehensive Income d. Investments in Own Regulatory Capital Instruments e. Definition of Financial Institution f. The Corresponding Deduction Approach g. Reciprocal Crossholdings in the Capital Instruments of Financial Institutions h. Investments in the FDIC-Supervised Institution’s Own Capital Instruments or VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 in the Capital of Unconsolidated Financial Institutions i. Indirect Exposure Calculations j. Non-Significant Investments in the Capital of Unconsolidated Financial Institutions k. Significant Investments in the Capital of Unconsolidated Financial Institutions That Are Not in the Form of Common Stock l. Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital Threshold Deductions m. Netting of Deferred Tax Liabilities Against Deferred Tax Assets and Other Deductible Assets 3. Investments in Hedge Funds and Private Equity Funds Pursuant to Section 13 of the Bank Holding Company Act VI. Denominator Changes Related to the Regulatory Capital Changes VII. Transition Provisions A. Transitions Provisions for Minimum Regulatory Capital Ratios B. Transition Provisions for Capital Conservation and Countercyclical Capital Buffers C. Transition Provisions for Regulatory Capital Adjustments and Deductions 1. Deductions for Certain Items Under Section 22(a) of the Interim Final Rule 2. Deductions for Intangibles Other Than Goodwill and Mortgage Servicing Assets 3. Regulatory Adjustments Under Section 22(b)(1) of the Interim Final Rule 4. Phase-Out of Current Accumulated Other Comprehensive Income Regulatory Capital Adjustments 5. Phase-Out of Unrealized Gains on Available for Sale Equity Securities in Tier 2 Capital 6. Phase-In of Deductions Related to Investments in Capital Instruments and to the Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital Deduction Thresholds (Sections 22(c) and 22(d)) of the Interim Final Rule D. Transition Provisions for NonQualifying Capital Instruments VIII. Standardized Approach for RiskWeighted Assets A. Calculation of Standardized Total RiskWeighted Assets B. Risk-Weighted Assets for General Credit Risk 1. Exposures to Sovereigns 2. Exposures to Certain Supranational Entities and Multilateral Development Banks 3. Exposures to Government-Sponsored Enterprises 4. Exposures to Depository Institutions, Foreign Banks, and Credit Unions 5. Exposures to Public-Sector Entities 6. Corporate Exposures 7. Residential Mortgage Exposures 8. Pre-Sold Construction Loans and Statutory Multifamily Mortgages 9. High-Volatility Commercial Real Estate 10. Past-Due Exposures 11. Other Assets C. Off-Balance Sheet Items 1. Credit Conversion Factors 2. Credit-Enhancing Representations and Warranties D. Over-the-Counter Derivative Contracts PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 55341 E. Cleared Transactions 1. Definition of Cleared Transaction 2. Exposure Amount Scalar for Calculating for Client Exposures 3. Risk Weighting for Cleared Transactions 4. Default Fund Contribution Exposures F. Credit Risk Mitigation 1. Guarantees and Credit Derivatives a. Eligibility Requirements b. Substitution Approach c. Maturity Mismatch Haircut d. Adjustment for Credit Derivatives Without Restructuring as a Credit Event e. Currency Mismatch Adjustment f. Multiple Credit Risk Mitigants 2. Collateralized Transactions a. Eligible Collateral b. Risk-Management Guidance for Recognizing Collateral c. Simple Approach d. Collateral Haircut Approach e. Standard Supervisory Haircuts f. Own Estimates of Haircuts g. Simple Value-at-Risk and Internal Models Methodology G. Unsettled Transactions H. Risk-Weighted Assets for Securitization Exposures 1. Overview of the Securitization Framework and Definitions 2. Operational Requirements a. Due Diligence Requirements b. Operational Requirements for Traditional Securitizations c. Operational Requirements for Synthetic Securitizations d. Clean-Up Calls 3. Risk-Weighted Asset Amounts for Securitization Exposures a. Exposure Amount of a Securitization Exposure b. Gains-on-Sale and Credit-Enhancing Interest-Only Strips c. Exceptions Under the Securitization Framework d. Overlapping Exposures e. Servicer Cash Advances f. Implicit Support 4. Simplified Supervisory Formula Approach 5. Gross-Up Approach 6. Alternative Treatments for Certain Types of Securitization Exposures a. Eligible Asset-Backed Commercial Paper Liquidity Facilities b. A Securitization Exposure in a SecondLoss Position or Better to an AssetBacked Commercial Paper Program 7. Credit Risk Mitigation for Securitization Exposures 8. Nth-to-Default Credit Derivatives IX. Equity Exposures A. Definition of Equity Exposure and Exposure Measurement B. Equity Exposure Risk Weights C. Non-Significant Equity Exposures D. Hedged Transactions E. Measures of Hedge Effectiveness F. Equity Exposures to Investment Funds 1. Full Look-through Approach 2. Simple Modified Look-through Approach 3. Alternative Modified Look-Through Approach X. Market Discipline and Disclosure Requirements E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55342 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations A. Proposed Disclosure Requirements B. Frequency of Disclosures C. Location of Disclosures and Audit Requirements D. Proprietary and Confidential Information E. Specific Public Disclosure Requirements XI. Risk-Weighted Assets—Modifications to the Advanced Approaches A. Counterparty Credit Risk 1. Recognition of Financial Collateral a. Financial Collateral b. Revised Supervisory Haircuts 2. Holding Periods and the Margin Period of Risk 3. Internal Models Methodology a. Recognition of Wrong-Way Risk b. Increased Asset Value Correlation Factor 4. Credit Valuation Adjustments a. Simple Credit Valuation Adjustment Approach b. Advanced Credit Valuation Adjustment Approach 5. Cleared Transactions (Central Counterparties) 6. Stress Period for Own Estimates B. Removal of Credit Ratings 1. Eligible Guarantor 2. Money Market Fund Approach 3. Modified Look-Through Approaches for Equity Exposures to Investment F C. Revisions to the Treatment of Securitization Exposures 1. Definitions 2. Operational Criteria for Recognizing Risk Transference in Traditional Securitizations 3. The Hierarchy of Approaches 4. Guarantees and Credit Derivatives Referencing a Securitization Expo 5. Due Diligence Requirements for Securitization Exposures 6. Nth-to-Default Credit Derivatives D. Treatment of Exposures Subject to Deduction E. Technical Amendments to the Advanced Approaches Rule 1. Eligible Guarantees and Contingent U.S. Government Guarantees 2. Calculation of Foreign Exposures for Applicability of the Advanced Approaches—Changes to Federal Financial Institutions Examination Council 009 3. Applicability of the Interim Final Rule 4. Change to the Definition of Probability of Default Related to Seasoning 5. Cash Items in Process of Collection 6. Change to the Definition of Qualifying Revolving Exposure 7. Trade-Related Letters of Credit 8. Defaulted Exposures That Are Guaranteed by the U.S. Government 9. Stable Value Wraps 10. Treatment of Pre-Sold Construction Loans and Multi-Family Residential Loans F. Pillar 3 Disclosures 1. Frequency and Timeliness of Disclosures 2. Enhanced Securitization Disclosure Requirements 3. Equity Holdings That Are Not Covered Positions XII. Market Risk Rule XIII. Abbreviations XIV. Regulatory Flexibility Act VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 XV. Paperwork Reduction Act XVI. Plain Language XVII. Small Business Regulatory Enforcement Fairness Act of 1996 I. Introduction On August 30, 2012, the agencies published in the Federal Register three joint notices of proposed rulemaking seeking public comment on revisions to their risk-based and leverage capital requirements and on methodologies for calculating risk-weighted assets under the standardized and advanced approaches (each, a proposal, and together, the NPRs, the proposed rules, or the proposals).1 The proposed rules, in part, reflected agreements reached by the Basel Committee on Banking Supervision (BCBS) in ‘‘Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems’’ (Basel III), including subsequent changes to the BCBS’s capital standards and recent BCBS consultative papers.2 Basel III is intended to improve both the quality and quantity of banking organizations’ capital, as well as to strengthen various aspects of the international capital standards for calculating regulatory capital. The proposed rules also reflect aspects of the Basel II Standardized Approach and other Basel Committee standards. The proposals also included changes consistent with the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act); 3 would apply the risk-based and leverage capital rules to top-tier savings and loan holding companies (SLHCs) domiciled in the United States; and would apply the market risk capital rule (the market risk rule) 4 to Federal and state savings associations (as appropriate based on trading activity). The NPR titled ‘‘Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action’’ 5 (the Basel III NPR), provided for the 1 77 FR 52792 (August 30, 2012); 77 FR 52888 (August 30, 2012); 77 FR 52978 (August 30, 2012). 2 Basel III was published in December 2010 and revised in June 2011. The text is available at https://www.bis.org/publ/bcbs189.htm. The BCBS is a committee of banking supervisory authorities, which was established by the central bank governors of the G–10 countries in 1975. More information regarding the BCBS and its membership is available at https://www.bis.org/bcbs/ about.htm. Documents issued by the BCBS are available through the Bank for International Settlements Web site at https://www.bis.org. 3 Public Law 111–203, 124 Stat. 1376, 1435–38 (2010). 4 The FDIC’s market risk rule is at 12 CFR part 325, appendix C. 5 77 FR 52792 (August 30, 2012). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 implementation of the Basel III revisions to international capital standards related to minimum capital requirements, regulatory capital, and additional capital ‘‘buffer’’ standards to enhance the resilience of FDIC-supervised institutions to withstand periods of financial stress. FDIC-supervised institutions include state nonmember banks and state savings associations. The term banking organizations includes national banks, state member banks, state nonmember banks, state and Federal savings associations, and top-tier bank holding companies domiciled in the United States not subject to the Federal Reserve’s Small Bank Holding Company Policy Statement (12 CFR part 225, appendix C), as well as top-tier savings and loan holding companies domiciled in the United States, except certain savings and loan holding companies that are substantially engaged in insurance underwriting or commercial activities. The proposal included transition periods for many of the requirements, consistent with Basel III and the DoddFrank Act. The NPR titled ‘‘Regulatory Capital Rules: Standardized Approach for Risk-weighted Assets; Market Discipline and Disclosure Requirements’’ 6 (the Standardized Approach NPR), would revise the methodologies for calculating riskweighted assets in the agencies’ general risk-based capital rules 7 (the general risk-based capital rules), incorporating aspects of the Basel II standardized approach,8 and establish alternative standards of creditworthiness in place of credit ratings, consistent with section 939A of the Dodd-Frank Act.9 The proposed minimum capital requirements in section 10(a) of the Basel III NPR, as determined using the standardized capital ratio calculations in section 10(b), would establish minimum capital requirements that would be the ‘‘generally applicable’’ capital requirements for purpose of section 171 of the Dodd-Frank Act (Pub. L. 111–203, 124 Stat. 1376, 1435–38 (2010).10 The NPR titled ‘‘Regulatory Capital Rules: Advanced Approaches RiskBased Capital Rule; Market Risk Capital 6 77 FR 52888 (August 30, 2012). FDIC’s general risk-based capital rules is at 12 CFR part 325, appendix A, and 12 CFR part 390, subpart Z . The general risk-based capital rule is supplemented by the FDIC’s market risk rule in 12 CFR part 325, appendix C. 8 See BCBS, ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework,’’ (June 2006), available at https://www.bis.org/publ/bcbs128.htm (Basel II). 9 See section 939A of the Dodd-Frank Act (15 U.S.C. 78o–7 note). 10 See 77 FR 52856 (August 30, 2012). 7 The E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Rule’’ 11 (the Advanced Approaches NPR) included proposed changes to the agencies’ current advanced approaches risk-based capital rules (the advanced approaches rule) 12 to incorporate applicable provisions of Basel III and the ‘‘Enhancements to the Basel II framework’’ (2009 Enhancements) published in July 2009 13 and subsequent consultative papers, to remove references to credit ratings, to apply the market risk rule to savings associations and SLHCs, and to apply the advanced approaches rule to SLHCs meeting the scope of application of those rules. Taken together, the three proposals also would have restructured the agencies’ regulatory capital rules (the general risk-based capital rules, leverage rules,14 market risk rule, and advanced approaches rule) into a harmonized, codified regulatory capital framework. The FDIC is finalizing the Basel III NPR, Standardized Approach NPR, and Advanced Approaches NPR in this interim final rule, with certain changes to the proposals, as described further below. The OCC and Federal Reserve are jointly finalizing the Basel III NPR, Standardized Approach NPR, and Advanced Approaches NPR as a final rule, with identical changes to the proposals as the FDIC. This interim final rule applies to FDIC-supervised institutions. Certain aspects of this interim final rule apply only to FDIC-supervised institutions subject to the advanced approaches rule (advanced approaches FDIC-supervised institutions) or to FDIC-supervised institutions with significant trading activities, as further described below. Likewise, the enhanced disclosure requirements in the interim final rule apply only to FDIC-supervised institutions with $50 billion or more in total consolidated assets. As under the proposal, the minimum capital requirements in section 10(a) of the interim final rule, as determined using the standardized capital ratio calculations in section 10(b), which apply to all FDIC-supervised institutions, establish the ‘‘generally emcdonald on DSK67QTVN1PROD with RULES2 11 77 FR 52978 (August 30, 2012). FDIC’s advanced approaches rules is at 12 CFR part 325, appendix D, and 12 CFR part 390, subpart Z, appendix A. The advanced approaches rule is supplemented by the market risk rule. 13 See ‘‘Enhancements to the Basel II framework’’ (July 2009), available at https://www.bis.org/publ/ bcbs157.htm. 14 The FDIC’s tier 1 leverage rules are at 12 CFR 325.3 (state nonmember banks) and 390.467 (state savings associations). 12 The VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 applicable’’ capital requirements under section 171 of the Dodd-Frank Act.15 Under the interim final rule, as under the proposal, in order to determine its minimum risk-based capital requirements, an advanced approaches FDIC-supervised institution that has completed the parallel run process and that has received notification from its primary Federal supervisor pursuant to section 324.121(d) of subpart E must determine its minimum risk-based capital requirements by calculating the three risk-based capital ratios using total risk-weighted assets under the standardized approach and, separately, total risk-weighted assets under the advanced approaches.16 The lower ratio for each risk-based capital requirement is the ratio the FDIC-supervised institution must use to determine its compliance with the minimum capital requirement.17 These enhanced prudential standards help ensure that advanced approaches FDIC-supervised institutions, which are among the largest and most complex FDICsupervised institutions, have capital adequate to address their more complex operations and risks. II. Summary of the Three Notices of Proposed Rulemaking A. The Basel III Notice of Proposed Rulemaking As discussed in the proposals, the recent financial crisis demonstrated that the amount of high-quality capital held by banking organizations was insufficient to absorb the losses generated over that period. In addition, some non-common stock capital instruments included in tier 1 capital did not absorb losses to the extent previously expected. A lack of clear and easily understood disclosures regarding the characteristics of regulatory capital instruments, as well as inconsistencies in the definition of capital across jurisdictions, contributed to difficulties in evaluating a banking organization’s capital strength. Accordingly, the BCBS assessed the international capital framework and, in 2010, published Basel III, a comprehensive reform package designed to improve the quality and quantity of regulatory capital and build additional capacity into the 15 See note 14, supra. Risk-weighted assets calculated under the market risk framework in subpart F of the interim final rule are included in calculations of risk-weighted assets both under the standardized approach and the advanced approaches. 16 An advanced approaches FDIC-supervised institution must also use its advanced-approachesadjusted total to determine its total risk-based capital ratio. 17 See section 10(c) of the interim final rule. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 55343 banking system to absorb losses in times of market and economic stress. On August 30, 2012, the agencies published the NPRs in the Federal Register to revise regulatory capital requirements, as discussed above. As proposed, the Basel III NPR generally would have applied to all U.S. banking organizations. Consistent with Basel III, the Basel III NPR would have required banking organizations to comply with the following minimum capital ratios: (i) A new requirement for a ratio of common equity tier 1 capital to risk-weighted assets (common equity tier 1 capital ratio) of 4.5 percent; (ii) a ratio of tier 1 capital to risk-weighted assets (tier 1 capital ratio) of 6 percent, increased from 4 percent; (iii) a ratio of total capital to risk-weighted assets (total capital ratio) of 8 percent; (iv) a ratio of tier 1 capital to average total consolidated assets (leverage ratio) of 4 percent; and (v) for advanced approaches banking organizations only, an additional requirement that the ratio of tier 1 capital to total leverage exposure (supplementary leverage ratio) be at least 3 percent. The Basel III NPR also proposed implementation of a capital conservation buffer equal to 2.5 percent of risk-weighted assets above the minimum risk-based capital ratio requirements, which could be expanded by a countercyclical capital buffer for advanced approaches banking organizations under certain circumstances. If a banking organization failed to hold capital above the minimum capital ratios and proposed capital conservation buffer (as potentially expanded by the countercyclical capital buffer), it would be subject to certain restrictions on capital distributions and discretionary bonus payments. The proposed countercyclical capital buffer was designed to take into account the macrofinancial environment in which large, internationally active banking organizations function. The countercyclical capital buffer could be implemented if the agencies determined that credit growth in the economy became excessive. As proposed, the countercyclical capital buffer would initially be set at zero, and could expand to as much as 2.5 percent of risk-weighted assets. The Basel III NPR proposed to apply a 4 percent minimum leverage ratio requirement to all banking organizations (computed using the new definition of capital), and to eliminate the exceptions for banking organizations with strong supervisory ratings or subject to the market risk rule. The Basel III NPR also E:\FR\FM\10SER2.SGM 10SER2 55344 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 proposed to require advanced approaches banking organizations to satisfy a minimum supplementary leverage ratio requirement of 3 percent, measured in a manner consistent with the international leverage ratio set forth in Basel III. Unlike the FDIC’s current leverage ratio requirement, the proposed supplementary leverage ratio incorporates certain off-balance sheet exposures in the denominator. To strengthen the quality of capital, the Basel III NPR proposed more conservative eligibility criteria for regulatory capital instruments. For example, the Basel III NPR proposed that trust preferred securities (TruPS) and cumulative perpetual preferred securities, which were tier-1-eligible instruments (subject to limits) at the BHC level, would no longer be includable in tier 1 capital under the proposal and would be gradually phased out from tier 1 capital. The proposal also eliminated the existing limitations on the amount of tier 2 capital that could be recognized in total capital, as well as the limitations on the amount of certain capital instruments (for example, term subordinated debt) that could be included in tier 2 capital. In addition, the proposal would have required banking organizations to include in common equity tier 1 capital accumulated other comprehensive income (AOCI) (with the exception of gains and losses on cash-flow hedges related to items that are not fair-valued on the balance sheet), and also would have established new limits on the amount of minority interest a banking organization could include in regulatory capital. The proposal also would have established more stringent requirements for several deductions from and adjustments to regulatory capital, including with respect to deferred tax assets (DTAs), investments in a banking organization’s own capital instruments and the capital instruments of other financial institutions, and mortgage servicing assets (MSAs). The proposed revisions would have been incorporated into the regulatory capital ratios in the prompt corrective action (PCA) framework for depository institutions. B. The Standardized Approach Notice of Proposed Rulemaking The Standardized Approach NPR proposed changes to the agencies’ general risk-based capital rules for determining risk-weighted assets (that is, the calculation of the denominator of a banking organization’s risk-based capital ratios). The proposed changes were intended to revise and harmonize the agencies’ rules for calculating riskweighted assets, enhance risk VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 sensitivity, and address weaknesses in the regulatory capital framework identified over recent years, including by strengthening the risk sensitivity of the regulatory capital treatment for, among other items, credit derivatives, central counterparties (CCPs), highvolatility commercial real estate, and collateral and guarantees. In the Standardized Approach NPR, the agencies also proposed alternatives to credit ratings for calculating riskweighted assets for certain assets, consistent with section 939A of the Dodd-Frank Act. These alternatives included methodologies for determining risk-weighted assets for exposures to sovereigns, foreign banks, and public sector entities, securitization exposures, and counterparty credit risk. The Standardized Approach NPR also proposed to include a framework for risk weighting residential mortgages based on underwriting and product features, as well as loan-to-value (LTV) ratios, and disclosure requirements for top-tier banking organizations domiciled in the United States with $50 billion or more in total assets, including disclosures related to regulatory capital instruments. C. The Advanced Approaches Notice of Proposed Rulemaking The Advanced Approaches NPR proposed revisions to the advanced approaches rule to incorporate certain aspects of Basel III, the 2009 Enhancements, and subsequent consultative papers. The proposal also would have implemented relevant provisions of the Dodd-Frank Act, including section 939A (regarding the use of credit ratings in agency regulations),18 and incorporated certain technical amendments to the existing requirements. In addition, the Advanced Approaches NPR proposed to codify the market risk rule in a manner similar to the codification of the other regulatory capital rules under the proposals. Consistent with Basel III and the 2009 Enhancements, under the Advanced Approaches NPR, the agencies proposed further steps to strengthen capital requirements for internationally active banking organizations. This NPR would have required advanced approaches banking organizations to hold more appropriate levels of capital for counterparty credit risk, credit valuation adjustments (CVA), and wrong-way risk; would have strengthened the risk-based capital requirements for certain securitization exposures by requiring advanced approaches banking 18 See section 939A of Dodd-Frank Act (15 U.S.C. 78o–7 note). PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 organizations to conduct more rigorous credit analysis of securitization exposures; and would have enhanced the disclosure requirements related to those exposures. The agencies proposed to apply the market risk rule to SLHCs and to state and Federal savings associations. III. Summary of General Comments on the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking; Overview of the Interim Final Rule A. General Comments on the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking Each agency received over 2,500 public comments on the proposals from banking organizations, trade associations, supervisory authorities, consumer advocacy groups, public officials (including members of the U.S. Congress), private individuals, and other interested parties. Overall, while most commenters supported more robust capital standards and the agencies’ efforts to improve the resilience of the banking system, many commenters expressed concerns about the potential costs and burdens of various aspects of the proposals, particularly for smaller banking organizations. A substantial number of commenters also requested withdrawal of, or significant revisions to, the proposals. A few commenters argued that new capital rules were not necessary at this time. Some commenters requested that the agencies perform additional studies of the economic impact of part or all of the proposed rules. Many commenters asked for additional time to transition to the new requirements. A more detailed discussion of the comments provided on particular aspects of the proposals is provided in the remainder of this preamble. 1. Applicability and Scope The agencies received a significant number of comments regarding the proposed scope and applicability of the Basel III NPR and the Standardized Approach NPR. The majority of comments submitted by or on behalf of community banking organizations requested an exemption from the proposals. These commenters suggested basing such an exemption on a banking organization’s asset size—for example, total assets of less than $500 million, $1 billion, $10 billion, $15 billion, or $50 billion—or on its risk profile or business model. Under the latter approach, the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations commenters suggested providing an exemption for banking organizations with balance sheets that rely less on leverage, short-term funding, or complex derivative transactions. In support of an exemption from the proposed rule for community banking organizations, a number of commenters argued that the proposed revisions to the definition of capital would be overly conservative and would prohibit some of the instruments relied on by community banking organizations from satisfying regulatory capital requirements. Many of these commenters stated that, in general, community banking organizations have less access to the capital markets relative to larger banking organizations and could increase capital only by accumulating retained earnings. Owing to slow economic growth and relatively low earnings among community banking organizations, the commenters asserted that implementation of the proposal would be detrimental to their ability to serve local communities while providing reasonable returns to shareholders. Other commenters requested exemptions from particular sections of the proposed rules, such as maintaining capital against transactions with particular counterparties, or based on transaction types that they considered lower-risk, such as derivative transactions hedging interest rate risk. The commenters also argued that application of the Basel III NPR and Standardized Approach NPR to community banking organizations would be unnecessary and inappropriate for the business model and risk profile of such organizations. These commenters asserted that Basel III was designed for large, internationallyactive banking organizations in response to a financial crisis attributable primarily to those institutions. Accordingly, the commenters were of the view that community banking organizations require a different capital framework with less stringent capital requirements, or should be allowed to continue to use the general risk-based capital rules. In addition, many commenters, in particular minority depository institutions (MDIs), mutual banking organizations, and community development financial institutions (CDFIs), expressed concern regarding their ability to raise capital to meet the increased minimum requirements in the current environment and upon implementation of the proposed definition of capital. One commenter asked for an exemption from all or part of the proposed rules for CDFIs, indicating that the proposal would VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 significantly reduce the availability of capital for low- and moderate-income communities. Another commenter stated that the U.S. Congress has a policy of encouraging the creation of MDIs and expressed concern that the proposed rules contradicted this purpose. In contrast, however, a few commenters supported the proposed application of the Basel III NPR to all banking organizations. For example, one commenter stated that increasing the quality and quantity of capital at all banking organizations would create a more resilient financial system and discourage inappropriate risk-taking by forcing banking organizations to put more of their own ‘‘skin in the game.’’ This commenter also asserted that the proposed scope of the Basel III NPR would reduce the probability and impact of future financial crises and support the objectives of sustained growth and high employment. Another commenter favored application of the Basel III NPR to all banking organizations to ensure a level playing field among banking organizations within the same competitive market. 2. Aggregate Impact A majority of the commenters expressed concern regarding the potential aggregate impact of the proposals, together with other provisions of the Dodd-Frank Act. Some of these commenters urged the agencies to withdraw the proposals and to conduct a quantitative impact study (QIS) to assess the potential aggregate impact of the proposals on banking organizations and the overall U.S. economy. Many commenters argued that the proposals would have significant negative consequences for the financial services industry. According to the commenters, by requiring banking organizations to hold more capital and increase risk weighting on some of their assets, as well as to meet higher riskbased and leverage capital measures for certain PCA categories, the proposals would negatively affect the banking sector. Commenters cited, among other potential consequences of the proposals: restricted job growth; reduced lending or higher-cost lending, including to small businesses and low-income or minority communities; limited availability of certain types of financial products; reduced investor demand for banking organizations’ equity; higher compliance costs; increased mergers and consolidation activity, specifically in rural markets, because banking organizations would need to spread compliance costs among a larger customer base; and diminished access to PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 55345 the capital markets resulting from reduced profit and from dividend restrictions associated with the capital buffers. The commenters also asserted that the recovery of the U.S. economy would be impaired by the proposals as a result of reduced lending by banking organizations that the commenters believed would be attributable to the higher costs of regulatory compliance. In particular, the commenters expressed concern that a contraction in smallbusiness lending would adversely affect job growth and employment. 3. Competitive Concerns Many commenters raised concerns that implementation of the proposals would create an unlevel playing field between banking organizations and other financial services providers. For example, a number of commenters expressed concern that credit unions would be able to gain market share from banking organizations by offering similar products at substantially lower costs because of differences in taxation combined with potential costs from the proposals. The commenters also argued that other financial service providers, such as foreign banks with significant U.S. operations, members of the Federal Farm Credit System, and entities in the shadow banking industry, would not be subject to the proposed rule and, therefore, would have a competitive advantage over banking organizations. These commenters also asserted that the proposals could cause more consumers to choose lower-cost financial products from the unregulated, nonbank financial sector. 4. Costs Commenters representing all types of banking organizations expressed concern that the complexity and implementation cost of the proposals would exceed their expected benefits. According to these commenters, implementation of the proposals would require software upgrades for new internal reporting systems, increased employee training, and the hiring of additional employees for compliance purposes. Some commenters urged the agencies to recognize that compliance costs have increased significantly over recent years due to other regulatory changes and to take these costs into consideration. As an alternative, some commenters encouraged the agencies to consider a simple increase in the minimum regulatory capital requirements, suggesting that such an approach would provide increased protection to the Deposit Insurance Fund and increase safety and soundness E:\FR\FM\10SER2.SGM 10SER2 55346 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations without adding complexity to the regulatory capital framework. interest rate risk, such as the use of derivative instruments. B. Comments on Particular Aspects of the Basel III Notice of Proposed Rulemaking and on the Standardized Approach Notice of Proposed Rulemaking 2. Residential Mortgages In addition to the general comments described above, the agencies received a significant number of comments on four particular elements of the proposals: the requirement to include most elements of AOCI in regulatory capital; the new framework for risk weighting residential mortgages; and the requirement to phase out TruPS from tier 1 capital for all banking organizations. emcdonald on DSK67QTVN1PROD with RULES2 1. Accumulated Other Comprehensive Income AOCI generally includes accumulated unrealized gains and losses on certain assets and liabilities that have not been included in net income, yet are included in equity under U.S. generally accepted accounting principles (GAAP) (for example, unrealized gains and losses on securities designated as available-for-sale (AFS)). Under the agencies’ general risk-based capital rules, most components of AOCI are not reflected in a banking organization’s regulatory capital. In the proposed rule, consistent with Basel III, the agencies proposed to require banking organizations to include the majority of AOCI components in common equity tier 1 capital. The agencies received a significant number of comments on the proposal to require banking organizations to recognize AOCI in common equity tier 1 capital. Generally, the commenters asserted that the proposal would introduce significant volatility in banking organizations’ capital ratios due in large part to fluctuations in benchmark interest rates, and would result in many banking organizations moving AFS securities into a held-tomaturity (HTM) portfolio or holding additional regulatory capital solely to mitigate the volatility resulting from temporary unrealized gains and losses in the AFS securities portfolio. The commenters also asserted that the proposed rules would likely impair lending and negatively affect banking organizations’ ability to manage liquidity and interest rate risk and to maintain compliance with legal lending limits. Commenters representing community banking organizations in particular asserted that they lack the sophistication of larger banking organizations to use certain riskmanagement techniques for hedging VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 The Standardized Approach NPR would have required banking organizations to place residential mortgage exposures into one of two categories to determine the applicable risk weight. Category 1 residential mortgage exposures were defined to include mortgage products with underwriting and product features that have demonstrated a lower risk of default, such as consideration and documentation of a borrower’s ability to repay, and generally excluded mortgage products that included terms or other characteristics that the agencies have found to be indicative of higher credit risk, such as deferral of repayment of principal. Residential mortgage exposures with higher risk characteristics were defined as category 2 residential mortgage exposures. The agencies proposed to apply relatively lower risk weights to category 1 residential mortgage exposures, and higher risk weights to category 2 residential mortgage exposures. The proposal provided that the risk weight assigned to a residential mortgage exposure also depended on its LTV ratio. The agencies received a significant number of comments objecting to the proposed treatment for one-to-four family residential mortgages and requesting retention of the mortgage treatment in the agencies’ general riskbased capital rules. Commenters generally expressed concern that the proposed treatment would inhibit lending to creditworthy borrowers and could jeopardize the recovery of a stillfragile housing market. Commenters also criticized the distinction between category 1 and category 2 mortgages, asserting that the characteristics proposed for each category did not appropriately distinguish between lower- and higher-risk products and would adversely impact certain loan products that performed relatively well even during the recent crisis. Commenters also highlighted concerns regarding regulatory burden and the uncertainty of other regulatory initiatives involving residential mortgages. In particular, these commenters expressed considerable concern regarding the potential cumulative impact of the proposed new mortgage requirements combined with the Dodd-Frank Act’s requirements relating to the definitions of qualified mortgage and qualified residential PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 mortgage 19 and asserted that when considered together with the proposed mortgage treatment, the combined effect could have an adverse impact on the mortgage industry. 3. Trust Preferred Securities for Smaller FDIC-Supervised Institutions The proposed rules would have required all banking organizations to phase-out TruPS from tier 1 capital under either a 3- or 10-year transition period based on the organization’s total consolidated assets. The proposal would have required banking organizations with more than $15 billion in total consolidated assets (as of December 31, 2009) to phase-out of tier 1 capital any non-qualifying capital instruments (such as TruPS and cumulative preferred shares) issued before May 19, 2010. The exclusion of non-qualifying capital instruments would have taken place incrementally over a three-year period beginning on January 1, 2013. Section 171 provides an exception that permits banking organizations with total consolidated assets of less than $15 billion as of December 31, 2009, and banking organizations that were mutual holding companies as of May 19, 2010 (2010 MHCs), to include in tier 1 capital all TruPS (and other instruments that could no longer be included in tier 1 capital pursuant to the requirements of section 171) that were issued prior to May 19, 2010.20 However, consistent with Basel III and the general policy purpose of the proposed revisions to regulatory capital, the agencies proposed to require banking organizations with total consolidated assets less than $15 billion as of December 31, 2009 and 2010 MHCs to phase out their non-qualifying capital instruments from regulatory capital over ten years.21 19 See, e.g., the definition of ‘‘qualified mortgage’’ in section 1412 of the Dodd-Frank Act (15 U.S.C. 129C) and ‘‘qualified residential mortgage’’ in section 941(e)(4) of the Dodd-Frank Act (15 U.S.C. 78o–11(e)(4)). 20 Specifically, section 171 provides that deductions of instruments ‘‘that would be required’’ under the section are not required for depository institution holding companies with total consolidated assets of less than $15 billion as of December 31, 2009 and 2010 MHCs. See 12 U.S.C. 5371(b)(4)(C). 21 See 12 U.S.C. 5371(b)(5)(A). While section 171 of the Dodd-Frank Act requires the agencies to establish minimum risk-based and leverage capital requirements subject to certain limitations, the agencies retain their general authority to establish capital requirements under other laws and regulations, including under the National Bank Act, 12 U.S.C. 1, et seq., Federal Reserve Act, Federal Deposit Insurance Act, Bank Holding Company Act, International Lending Supervision Act, 12 U.S.C. 3901, et seq., and Home Owners Loan Act, 12 U.S.C. 1461, et seq. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 Many commenters representing community banking organizations criticized the proposal’s phase-out schedule for TruPS and encouraged the agencies to grandfather TruPS in tier 1 capital to the extent permitted by section 171 of the Dodd-Frank Act. Commenters asserted that this was the intent of the U.S. Congress, including this provision in the statute. These commenters also asserted that this aspect of the proposal would unduly burden community banking organizations that have limited ability to raise capital, potentially impairing the lending capacity of these banking organizations. C. Overview of the Interim Final Rule The interim final rule will replace the FDIC’s general risk-based capital rules, advanced approaches rule, market risk rule, and leverage rules in accordance with the transition provisions described below. After considering the comments received, the FDIC has made substantial modifications in the interim final rule to address specific concerns raised by commenters regarding the cost, complexity, and burden of the proposals. During the recent financial crisis, lack of confidence in the banking sector increased banking organizations’ cost of funding, impaired banking organizations’ access to short-term funding, depressed values of banking organizations’ equities, and required many banking organizations to seek government assistance. Concerns about banking organizations arose not only because market participants expected steep losses on banking organizations’ assets, but also because of substantial uncertainty surrounding estimated loss rates, and thus future earnings. Further, heightened systemic risks, falling asset values, and reduced credit availability had an adverse impact on business and consumer confidence, significantly affecting the overall economy. The interim final rule addresses these weaknesses by helping to ensure a banking and financial system that will be better able to absorb losses and continue to lend in future periods of economic stress. This important benefit in the form of a safer, more resilient, and more stable banking system is expected to substantially outweigh any short-term costs that might result from the interim final rule. In this context, the FDIC is adopting most aspects of the proposals, including the minimum risk-based capital requirements, the capital conservation and countercyclical capital buffers, and many of the proposed risk weights. The FDIC has also decided to apply most VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 aspects of the Basel III NPR and Standardized Approach NPR to all banking organizations, with some significant changes. Implementing the interim final rule in a consistent fashion across the banking system will improve the quality and increase the level of regulatory capital, leading to a more stable and resilient system for banking organizations of all sizes and risk profiles. The improved resilience will enhance their ability to continue functioning as financial intermediaries, including during periods of financial stress and reduce risk to the deposit insurance fund and to the financial system. The FDIC believes that, together, the revisions to the proposals meaningfully address the commenters’ concerns regarding the potential implementation burden of the proposals. The FDIC has considered the concerns raised by commenters and believe that it is important to take into account and address regulatory costs (and their potential effect on FDIC-supervised institutions’ role as financial intermediaries in the economy) when the FDIC establishes or revises regulatory requirements. In developing regulatory capital requirements, these concerns are considered in the context of the FDIC’s broad goals—to enhance the safety and soundness of FDICsupervised institutions and promote financial stability through robust capital standards for the entire banking system. The agencies participated in the development of a number of studies to assess the potential impact of the revised capital requirements, including participating in the BCBS’s Macroeconomic Assessment Group as well as its QIS, the results of which were made publicly available by the BCBS upon their completion.22 The BCBS analysis suggested that stronger capital requirements help reduce the likelihood of banking crises while yielding positive net economic benefits.23 To evaluate the potential reduction in economic output resulting from the new framework, the analysis assumed that banking organizations replaced debt with higher-cost equity to the extent needed to comply with the new requirements, that there was no reduction in the cost of equity despite 22 See ‘‘Assessing the macroeconomic impact of the transition to stronger capital and liquidity requirements’’ (MAG Analysis), Attachment E, also available at: https://www.bis.orpublIothp12.pdf. See also ‘‘Results of the comprehensive quantitative impact study,’’ Attachment F, also available at: https://www.bis.org/publ/bcbs186.pdf. 23 See ‘‘An assessment of the long-term economic impact of stronger capital and liquidity requirements,’’ Executive Summary, pg. 1, Attachment G. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 55347 the reduction in the riskiness of banking organizations’ funding mix, and that the increase in funding cost was entirely passed on to borrowers. Given these assumptions, the analysis concluded there would be a slight increase in the cost of borrowing and a slight decrease in the growth of gross domestic product. The analysis concluded that this cost would be more than offset by the benefit to gross domestic product resulting from a reduced likelihood of prolonged economic downturns associated with a banking system whose lending capacity is highly vulnerable to economic shocks. The agencies’ analysis also indicates that the overwhelming majority of banking organizations already have sufficient capital to comply with the new capital rules. In particular, the agencies estimate that over 95 percent of all insured depository institutions would be in compliance with the minimums and buffers established under the interim final rule if it were fully effective immediately. The interim final rule will help to ensure that these FDIC-supervised institutions maintain their capacity to absorb losses in the future. Some FDIC-supervised institutions may need to take advantage of the transition period in the interim final rule to accumulate retained earnings, raise additional external regulatory capital, or both. As noted above, however, the overwhelming majority of banking organizations have sufficient capital to comply with the revised capital rules, and the FDIC believes that the resulting improvements to the stability and resilience of the banking system outweigh any costs associated with its implementation. The interim final rule includes some significant revisions from the proposals in response to commenters’ concerns, particularly with respect to the treatment of AOCI; residential mortgages; tier 1 non-qualifying capital instruments; and the implementation timeframes. The timeframes for compliance are described in the next section and more detailed discussions of modifications to the proposals are provided in the remainder of the preamble. Consistent with the proposed rules, the interim final rule requires all FDICsupervised institutions to recognize in regulatory capital all components of AOCI, excluding accumulated net gains and losses on cash-flow hedges that relate to the hedging of items that are not recognized at fair value on the balance sheet. However, while the FDIC believes that the proposed AOCI treatment results in a regulatory capital E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55348 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations measure that better reflects FDICsupervised institutions’ actual loss absorption capacity at a specific point in time, the FDIC recognizes that for many FDIC-supervised institutions, the volatility in regulatory capital that could result from the proposals could lead to significant difficulties in capital planning and asset-liability management. The FDIC also recognizes that the tools used by larger, more complex FDIC-supervised institutions for managing interest rate risk are not necessarily readily available for all FDIC-supervised institutions. Accordingly, under the interim final rule, and as discussed in more detail in section V.B of this preamble, an FDICsupervised institution that is not subject to the advanced approaches rule may make a one-time election not to include most elements of AOCI in regulatory capital under the interim final rule and instead effectively use the existing treatment under the general risk-based capital rules that excludes most AOCI elements from regulatory capital (AOCI opt-out election). Such an FDICsupervised institution must make its AOCI opt-out election in its Consolidated Reports of Condition and Income (Call Report) filed for the first reporting period after it becomes subject to the interim final rule. Consistent with regulatory capital calculations under the FDIC’s general risk-based capital rules, an FDIC-supervised institution that makes an AOCI opt-out election under the interim final rule must adjust common equity tier 1 capital by: (1) Subtracting any net unrealized gains and adding any net unrealized losses on AFS securities; (2) subtracting any unrealized losses on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures; (3) subtracting any accumulated net gains and adding any accumulated net losses on cash-flow hedges; (4) subtracting amounts recorded in AOCI attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (excluding, at the FDICsupervised institution’s option, the portion relating to pension assets deducted under section 22(a)(5) of the interim final rule); and (5) subtracting any net unrealized gains and adding any net unrealized losses on held-tomaturity securities that are included in AOCI. Consistent with the general riskbased capital rules, common equity tier 1 capital includes any net unrealized losses on AFS equity securities and any foreign currency translation adjustment. An FDIC-supervised institution that VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 makes an AOCI opt-out election may incorporate up to 45 percent of any net unrealized gains on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures into its tier 2 capital. An FDIC-supervised institution that does not make an AOCI opt-out election on the Call Report filed for the first reporting period after the FDICsupervised institution becomes subject to the interim final rule will be required to recognize AOCI (excluding accumulated net gains and losses on cash-flow hedges that relate to the hedging of items that are not recognized at fair value on the balance sheet) in regulatory capital as of the first quarter in which it calculates its regulatory capital requirements under the interim final rule and continuing thereafter. The FDIC has decided not to adopt the proposed treatment of residential mortgages. The FDIC has considered the commenters’ observations about the burden of calculating the risk weights for FDIC-supervised institutions’ existing mortgage portfolios, and has taken into account the commenters’ concerns that the proposal did not properly assess the use of different mortgage products across different types of markets in establishing the proposed risk weights. The FDIC is also particularly mindful of comments regarding the potential effect of the proposal and other mortgage-related rulemakings on credit availability. In light of these considerations, as well as others raised by commenters, the FDIC has decided to retain in the interim final rule the current treatment for residential mortgage exposures under the general risk-based capital rules. Consistent with the general risk-based capital rules, the interim final rule assigns a 50 or 100 percent risk weight to exposures secured by one-to-four family residential properties. Generally, residential mortgage exposures secured by a first lien on a one-to-four family residential property that are prudently underwritten and that are performing according to their original terms receive a 50 percent risk weight. All other oneto four-family residential mortgage loans, including exposures secured by a junior lien on residential property, are assigned a 100 percent risk weight. If an FDIC-supervised institution holds the first and junior lien(s) on a residential property and no other party holds an intervening lien, the FDIC-supervised institution must treat the combined exposure as a single loan secured by a first lien for purposes of assigning a risk weight. The agencies also considered comments on the proposal to require PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 certain depository institution holding companies to phase out their nonqualifying tier 1 capital instruments from regulatory capital over ten years. Although the agencies continue to believe that non-qualifying instruments do not absorb losses sufficiently to be included in tier 1 capital as a general matter, the agencies are also sensitive to the difficulties community banking organizations often face when issuing new capital instruments and are aware of the importance their capacity to lend can play in local economies. Therefore, the final rule adopted by the Federal Reserve allows certain depository institution holding companies to include in regulatory capital debt or equity instruments issued prior to September 12, 2010 that do not meet the criteria for additional tier 1 or tier 2 capital instruments but that were included in tier 1 or tier 2 capital respectively as of September 12, 2010 up to the percentage of the outstanding principal amount of such non-qualifying capital instruments. D. Timeframe for Implementation and Compliance In order to give non-internationally active FDIC-supervised institutions more time to comply with the interim final rule and simplify their transition to the new regime, the interim final rule will require compliance from different types of organizations at different times. Generally, and as described in further detail below, FDIC-supervised institutions that are not subject to the advanced approaches rule must begin complying with the interim final rule on January 1, 2015, whereas advanced approaches FDIC-supervised institutions must begin complying with the interim final rule on January 1, 2014. The FDIC believes that advanced approaches FDIC-supervised institutions have the sophistication, infrastructure, and capital markets access to implement the interim final rule earlier than either FDIC-supervised institutions that do not meet the asset size or foreign exposure threshold for application of those rules. A number of commenters requested that the agencies clarify the point at which a banking organization that meets the asset size or foreign exposure threshold for application of the advanced approaches rule becomes subject to subpart E of the proposed rule, and thus all of the provisions that apply to an advanced approaches banking organization. In particular, commenters requested that the agencies clarify whether subpart E of the proposed rule only applies to those banking organizations that have E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations completed the parallel run process and that have received notification from their primary Federal supervisor pursuant to section 324.121(d) of subpart E, or whether subpart E would apply to all banking organizations that meet the relevant thresholds without reference to completion of the parallel run process. The interim final rule provides that an advanced approaches FDIC-supervised institution is one that meets the asset size or foreign exposure thresholds for or has opted to apply the advanced approaches rule, without reference to whether that FDIC-supervised institution has completed the parallel run process and has received notification from its primary Federal supervisor pursuant to section 324.121(d) of subpart E of the interim final rule. The FDIC has also clarified in the interim final rule when completion of the parallel run process and receipt of notification from the primary Federal supervisor pursuant to section 324.121(d) of subpart E is necessary for an advanced approaches FDICsupervised institution to comply with a particular aspect of the rules. For example, only an advanced approaches FDIC-supervised institution that has completed parallel run and received notification from its primary Federal supervisor under Section 324.121(d) of subpart E must make the disclosures set forth under subpart E of the interim final rule. However, an advanced approaches FDIC-supervised institution must recognize most components of AOCI in common equity tier 1 capital and must meet the supplementary leverage ratio when applicable without reference to whether the FDICsupervised institution has completed its parallel run process. Beginning on January 1, 2015, FDICsupervised institutions that are not subject to the advanced approaches rule become subject to the revised definitions of regulatory capital, the new minimum regulatory capital ratios, and the regulatory capital adjustments and deductions according to the transition provisions.24 All FDICsupervised institutions must begin calculating standardized total riskweighted assets in accordance with subpart D of the interim final rule, and if applicable, the revised market risk rule under subpart F, on January 1, 2015.25 Beginning on January 1, 2014, advanced approaches FDIC-supervised institutions must begin the transition period for the revised minimum regulatory capital ratios, definitions of regulatory capital, and regulatory capital adjustments and deductions established under the interim final rule. The revisions to the advanced approaches risk-weighted asset calculations will become effective on January 1, 2014. From January 1, 2014 to December 31, 2014, an advanced approaches FDICsupervised institution that is on parallel run must calculate risk-weighted assets using the general risk-based capital rules and substitute such risk-weighted assets for its standardized total riskweighted assets for purposes of determining its risk-based capital ratios. An advanced approaches FDICsupervised institution on parallel run must also calculate advanced approaches total risk-weighted assets 55349 using the advanced approaches rule in subpart E of the interim final rule for purposes of confidential reporting to its primary Federal supervisor on the Federal Financial Institutions Examination Council’s (FFIEC) 101 report. An advanced approaches FDICsupervised institution that has completed the parallel run process and that has received notification from its primary Federal supervisor pursuant to section 121(d) of subpart E will calculate its risk-weighted assets using the general risk-based capital rules and substitute such risk-weighted assets for its standardized total risk-weighted assets and also calculate advanced approaches total risk-weighted assets using the advanced approaches rule in subpart E of the interim final rule for purposes of determining its risk-based capital ratios from January 1, 2014 to December 31, 2014. Regardless of an advanced approaches FDIC-supervised institution’s parallel run status, on January 1, 2015, the FDIC-supervised institution must begin to apply subpart D, and if applicable, subpart F, of the interim final rule to determine its standardized total risk-weighted assets. The transition period for the capital conservation and countercyclical capital buffers for all FDIC-supervised institutions will begin on January 1, 2016. An FDIC-supervised institution that is required to comply with the market risk rule must comply with the revised market risk rule (subpart F) as of the same date that it must comply with other aspects of the rule for determining its total risk-weighted assets. Date FDIC-Supervised institutions not subject to the advanced approaches rule* January 1, 2015 ................... January 1, 2016 ................... Begin compliance with the revised minimum regulatory capital ratios and begin the transition period for the revised definitions of regulatory capital and the revised regulatory capital adjustments and deductions. Begin compliance with the standardized approach for determining risk-weighted assets. Begin the transition period for the capital conservation and countercyclical capital buffers. Date Advanced approaches FDIC-supervised institutions* January 1, 2014 ................... Begin the transition period for the revised minimum regulatory capital ratios, definitions of regulatory capital, and regulatory capital adjustments and deductions. Begin compliance with the revised advanced approaches rule for determining risk-weighted assets. Begin compliance with the standardized approach for determining risk-weighted assets. Begin the transition period for the capital conservation and countercyclical capital buffers. January 1, 2015 ................... January 1, 2016 ................... emcdonald on DSK67QTVN1PROD with RULES2 *If applicable, FDIC-supervised institutions must use the calculations in subpart F of the interim final rule (market risk) concurrently with the calculation of risk-weighted assets according either to subpart D (standardized approach) or subpart E (advanced approaches) of the interim final rule. 24 Prior to January 1, 2015, such FDIC-supervised institutions must continue to use the FDIC’s general risk-based capital rules and tier 1 leverage rules. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 25 The revised PCA thresholds, discussed further in section IV.E. of this preamble, become effective PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 for all insured depository institutions on January 1, 2015. E:\FR\FM\10SER2.SGM 10SER2 55350 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 IV. Minimum Regulatory Capital Ratios, Additional Capital Requirements, and Overall Capital Adequacy A. Minimum Risk-based Capital Ratios and Other Regulatory Capital Provisions Consistent with Basel III, the proposed rule would have required banking organizations to comply with the following minimum capital ratios: a common equity tier 1 capital to riskweighted assets ratio of 4.5 percent; a tier 1 capital to risk-weighted assets ratio of 6 percent; a total capital to riskweighted assets ratio of 8 percent; a leverage ratio of 4 percent; and for advanced approaches banking organizations only, a supplementary leverage ratio of 3 percent. The common equity tier 1 capital ratio is a new minimum requirement designed to ensure that banking organizations hold sufficient high-quality regulatory capital that is available to absorb losses on a going-concern basis. The proposed capital ratios would apply to a banking organization on a consolidated basis. The agencies received a substantial number of comments on the proposed minimum risk-based capital requirements. Several commenters supported the proposal to increase the minimum tier 1 risk-based capital requirement. Other commenters commended the agencies for proposing to implement a minimum capital requirement that focuses primarily on common equity. These commenters argued that common equity is the strongest form of capital and that the proposed minimum common equity tier 1 capital ratio of 4.5 percent would promote the safety and soundness of the banking industry. Other commenters provided general support for the proposed increases in minimum risk-based capital requirements, but expressed concern that the proposals could present unique challenges to mutual institutions because they can only raise common equity through retained earnings. A number of commenters asserted that the objectives of the proposal could be achieved through regulatory mechanisms other than the proposed risk-based capital requirements, including enhanced safety and soundness examinations, more stringent underwriting standards, and alternative measures of capital. Other commenters objected to the proposed increase in the minimum tier 1 capital ratio and the implementation of a common equity tier 1 capital ratio. One commenter indicated that increases in regulatory capital ratios would severely limit growth at many VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 community banking organizations and could encourage consolidation through mergers and acquisitions. Other commenters stated that for banks under $750 million in total assets, increased compliance costs would not allow them to provide a reasonable return to shareholders, and thus would force them to consolidate. Several commenters urged the agencies to recognize community banking organizations’ limited access to the capital markets and related difficulties raising capital to comply with the proposal. One banking organization indicated that implementation of the common equity tier 1 capital ratio would significantly reduce its capacity to grow and recommended that the proposal recognize differences in the risk and complexity of banking organizations and provide favorable, less stringent requirements for smaller and noncomplex institutions. Another commenter suggested that the proposed implementation of an additional riskbased capital ratio would confuse market observers and recommended that the agencies implement a regulatory capital framework that allows investors and the market to ascertain regulatory capital from measures of equity derived from a banking organization’s balance sheet. Other commenters expressed concern that the proposed common equity tier 1 capital ratio would disadvantage MDIs relative to other banking organizations. According to the commenters, in order to retain their minority-owned status, MDIs historically maintain a relatively high percentage of non-voting preferred stockholders that provide long-term, stable sources of capital. Any public offering to increase common equity tier 1 capital levels would dilute the minority investors owning the common equity of the MDI and could potentially compromise the minority-owned status of such institutions. One commenter asserted that, for this reason, the implementation of the Basel III NPR would be contrary to the statutory mandate of section 308 of the Financial Institutions, Reform, Recovery and Enforcement Act (FIRREA).26 Accordingly, the commenters encouraged the agencies to exempt MDIs from the proposed common equity tier 1 capital ratio requirement. The FDIC believes that all FDICsupervised institutions must have an adequate amount of loss-absorbing capital to continue to lend to their communities during times of economic stress, and therefore have decided to 26 12 PO 00000 U.S.C. 1463 note. Frm 00012 Fmt 4701 Sfmt 4700 implement the regulatory capital requirements, including the minimum common equity tier 1 capital requirement, as proposed. For the reasons described in the NPR, including the experience during the crisis with lower quality capital instruments, the FDIC does not believe it is appropriate to maintain the general risk-based capital rules or to rely on the supervisory process or underwriting standards alone. Accordingly, the interim final rule maintains the minimum common equity tier 1 capital to total risk-weighted assets ratio of 4.5 percent. The FDIC has decided not to pursue the alternative regulatory mechanisms suggested by commenters, as such alternatives would be difficult to implement consistently across FDICsupervised institutions and would not necessarily fulfill the objective of increasing the amount and quality of regulatory capital for all FDICsupervised institutions. In view of the concerns expressed by commenters with respect to MDIs, the FDIC evaluated the risk-based and leverage capital levels of MDIs to determine whether the interim final rule would disproportionately impact such institutions. This analysis found that of the 178 MDIs in existence as of March 31, 2013, 12 currently are not well capitalized for PCA purposes, whereas (according to the FDIC’s estimates) 14 would not be considered well capitalized for PCA purposes under the interim final rule if it were fully implemented without transition today. Accordingly, the FDIC does not believe that the interim final rule would disproportionately impact MDIs and are not adopting any exemptions or special provisions for these institutions. While the FDIC recognizes MDIs may face impediments in meeting the common equity tier 1 capital ratio, the FDIC believes that the improvements to the safety and soundness of these institutions through higher capital standards are warranted and consistent with their obligations under section 308 of FIRREA. As a prudential matter, the FDIC has a long-established regulatory policy that FDIC-supervised institutions should hold capital commensurate with the level and nature of the risks to which they are exposed, which may entail holding capital significantly above the minimum requirements, depending on the nature of the FDICsupervised institution’s activities and risk profile. Section IV.G of this preamble describes the requirement for overall capital adequacy of FDICsupervised institutions and the E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 supervisory assessment of capital adequacy. Furthermore, consistent with the FDIC’s authority under the general riskbased capital rules and the proposals, section 1(d) of the interim final rule includes a reservation of authority that allows FDIC to require the FDICsupervised institution to hold a greater amount of regulatory capital than otherwise is required under the interim final rule, if the FDIC determines that the regulatory capital held by the FDICsupervised institution is not commensurate with its credit, market, operational, or other risks. In exercising reservation of authority under the rule, the FDIC expects to consider the size, complexity, risk profile, and scope of operations of the FDIC-supervised institution; and whether any public benefits would be outweighed by risk to an insured depository institution or to the financial system. B. Leverage Ratio The proposals would require a banking organization to satisfy a leverage ratio of 4 percent, calculated using the proposed definition of tier 1 capital and the banking organization’s average total consolidated assets, minus amounts deducted from tier 1 capital. The agencies also proposed to eliminate the exception in the agencies’ leverage rules that provides for a minimum leverage ratio of 3 percent for banking organizations with strong supervisory ratings. The agencies received a number of comments on the proposed leverage ratio applicable to all banking organizations. Several of these commenters supported the proposed leverage ratio, stating that it serves as a simple regulatory standard that constrains the ability of a banking organization to leverage its equity capital base. Some of the commenters encouraged the agencies to consider an alternative leverage ratio measure of tangible common equity to tangible assets, which would exclude noncommon stock elements from the numerator and intangible assets from the denominator of the ratio and thus, according to these commenters, provide a more reliable measure of a banking organization’s viability in a crisis. A number of commenters criticized the proposed removal of the 3 percent exception to the minimum leverage ratio requirement for certain banking organizations. One of these commenters argued that removal of this exception is unwarranted in view of the cumulative impact of the proposals and that raising the minimum leverage ratio requirement for the strongest banking organizations VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 may lead to a deleveraging by the institutions most able to extend credit in a safe and sound manner. In addition, the commenters cautioned the agencies that a restrictive leverage measure, together with more stringent risk-based capital requirements, could magnify the potential impact of an economic downturn. Several commenters suggested modifications to the minimum leverage ratio requirement. One commenter suggested increasing the minimum leverage ratio requirement for all banking organizations to 6 percent, whereas another commenter recommended a leverage ratio requirement as high as 20 percent. Another commenter suggested a tiered approach, with minimum leverage ratio requirements of 6.25 percent and 8.5 percent for community banking organizations and large banking organizations, respectively. According to this commenter, such an approach could be based on the risk characteristics of a banking organization, including liquidity, asset quality, and local deposit levels, as well as its supervisory rating. Another commenter suggested a fluid leverage ratio requirement that would adjust based on certain macroeconomic variables. Under such an approach, the agencies could require banking organizations to meet a minimum leverage ratio of 10 percent under favorable economic conditions and a 6 percent leverage ratio during an economic contraction. The FDIC continues to believe that a minimum leverage ratio requirement of 4 percent for all FDIC-supervised institutions is appropriate in light of its role as a complement to the risk-based capital ratios. The proposed leverage ratio is more conservative than the current leverage ratio because it incorporates a more stringent definition of tier 1 capital. In addition, the FDIC believes that it is appropriate for all FDIC-supervised institutions, regardless of their supervisory rating or trading activities, to meet the same minimum leverage ratio requirements. As a practical matter, the FDIC generally has found a leverage ratio of less than 4 percent to be inconsistent with a supervisory composite rating of ‘‘1.’’ Modifying the scope of the leverage ratio measure or implementing a fluid or tiered approach for the minimum leverage ratio requirement would create additional operational complexity and variability in a minimum ratio requirement that is intended to place a constraint on the maximum degree to which an FDIC-supervised institution can leverage its equity base. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 55351 Accordingly, the interim final rule retains the existing minimum leverage ratio requirement of 4 percent and removes the 3 percent leverage ratio exception as of January 1, 2014 for advanced approaches FDIC-supervised institutions and as of January 1, 2015 for all other FDIC-supervised institutions. C. Supplementary Leverage Ratio for Advanced Approaches FDIC-Supervised Institutions As part of Basel III, the BCBS introduced a minimum leverage ratio requirement of 3 percent (the Basel III leverage ratio) as a backstop measure to the risk-based capital requirements, designed to improve the resilience of the banking system worldwide by limiting the amount of leverage that a banking organization may incur. The Basel III leverage ratio is defined as the ratio of tier 1 capital to a combination of on- and off-balance sheet exposures. As discussed in the Basel III NPR, the agencies proposed the supplementary leverage ratio only for advanced approaches banking organizations because these banking organizations tend to have more significant amounts of off-balance sheet exposures that are not captured by the current leverage ratio. Under the proposal, consistent with Basel III, advanced approaches banking organizations would be required to maintain a minimum supplementary leverage ratio of 3 percent of tier 1 capital to on- and offbalance sheet exposures (total leverage exposure). The agencies received a number of comments on the proposed supplementary leverage ratio. Several commenters stated that the proposed supplementary leverage ratio is unnecessary in light of the minimum leverage ratio requirement applicable to all banking organizations. These commenters stated that the implementation of the supplementary leverage ratio requirement would create market confusion as to the interrelationships among the ratios and as to which ratio serves as the binding constraint for an individual banking organization. One commenter noted that an advanced approaches banking organization would be required to calculate eight distinct regulatory capital ratios (common equity tier 1, tier 1, and total capital to risk-weighted assets under the advanced approaches and the standardized approach, as well as two leverage ratios) and encouraged the agencies to streamline the application of regulatory capital ratios. In addition, commenters suggested that the agencies postpone the implementation of the supplementary E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55352 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations leverage ratio until January 1, 2018, after the international supervisory monitoring process is complete, and to collect supplementary leverage ratio information on a confidential basis until then. At least one commenter encouraged the agencies to consider extending the application of the proposed supplementary leverage ratio on a caseby-case basis to banking organizations with total assets of between $50 billion and $250 billion, stating that such institutions may have significant offbalance sheet exposures and engage in a substantial amount of repo-style transactions. Other commenters suggested increasing the proposed supplementary leverage ratio requirement to at least 8 percent for BHCs, under the Federal Reserve’s authority in section 165 of the DoddFrank Act to implement enhanced capital requirements for systemically important financial institutions.27 With respect to specific aspects of the supplementary leverage ratio, some commenters criticized the methodology for the total leverage exposure. Specifically, one commenter expressed concern that using GAAP as the basis for determining a banking organization’s total leverage exposure would exclude a wide range of off-balance sheet exposures, including derivatives and securities lending transactions, as well as permit extensive netting. To address these issues, the commenter suggested requiring advanced approaches banking organizations to determine their total leverage exposure using International Financial Reporting Standards (IFRS), asserting that it restricts netting and, relative to GAAP, requires the recognition of more off-balance sheet securities lending transactions. Several commenters criticized the proposed incorporation of off-balance sheet exposures into the total leverage exposure. One commenter argued that including unfunded commitments in the total leverage exposure runs counter to the purpose of the supplementary leverage ratio as an on-balance sheet measure of capital that complements the risk-based capital ratios. This commenter was concerned that the proposed inclusion of unfunded commitments would result in a duplicative assessment against banking organizations when the forthcoming liquidity ratio requirements are implemented in the United States. The commenter noted that the proposed 100 percent credit conversion factor for all unfunded commitments is not 27 See section 165 of the Dodd-Frank Act, 12 U.S.C. 5365. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 appropriately calibrated to the vastly different types of commitments that exist across the industry. If the supplementary leverage ratio is retained in the interim final rule, the commenter requested that the agencies align the credit conversion factors for unfunded commitments under the supplementary leverage ratio and any forthcoming liquidity ratio requirements. Another commenter encouraged the agencies to allow advanced approaches banking organizations to exclude from total leverage exposure the notional amount of any unconditionally cancellable commitment. According to this commenter, unconditionally cancellable commitments are not credit exposures because they can be extinguished at any time at the sole discretion of the issuing entity. Therefore, the commenter argued, the inclusion of these commitments could potentially distort a banking organization’s measure of total leverage exposure. A few commenters requested that the agencies exclude off-balance sheet trade finance instruments from the total leverage exposure, asserting that such instruments are based on underlying client transactions (for example, a shipment of goods) and are generally short-term. The commenters argued that trade finance instruments do not create excessive systemic leverage and that they are liquidated by fulfillment of the underlying transaction and payment at maturity. Another commenter requested that the agencies apply the same credit conversion factors to trade finance instruments as under the general riskbased capital rules—that is, 20 percent of the notional value for trade-related contingent items that arise from the movement of goods, and 50 percent of the notional value for transactionrelated contingent items, including performance bonds, bid bonds, warranties, and performance standby letters of credit. According to this commenter, such an approach would appropriately consider the low-risk characteristics of these instruments and ensure price stability in trade finance. Several commenters supported the proposed treatment for repo-style transactions (including repurchase agreements, securities lending and borrowing transactions, and reverse repos). These commenters stated that securities lending transactions are fully collateralized and marked to market daily and, therefore, the on-balance sheet amounts generated by these transactions appropriately capture the exposure for purposes of the supplementary leverage ratio. These commenters also supported the PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 proposed treatment for indemnified securities lending transactions and encouraged the agencies to retain this treatment in the interim final rule. Other commenters stated that the proposed measurement of repo-style transactions is not sufficiently conservative and recommended that the agencies implement a methodology that includes in total leverage exposure the notional amounts of these transactions. A few commenters raised concerns about the proposed methodology for determining the exposure amount of derivative contracts. Some commenters criticized the agencies for not allowing advanced approaches banking organizations to use the internal models methodology to calculate the exposure amount for derivative contracts. According to these commenters, the agencies should align the methods for calculating exposure for derivative contracts for purposes of the supplementary leverage ratio and the advanced approaches risk-based capital ratios to more appropriately reflect the risk-management activities of advanced approaches banking organizations and to measure these exposures consistently across the regulatory capital ratios. At least one commenter requested clarification of the proposed treatment of collateral received in connection with derivative contracts. This commenter also encouraged the agencies to permit recognition of eligible collateral for purposes of reducing total leverage exposure, consistent with proposed legislation in other BCBS member jurisdictions. The introduction of an international leverage ratio requirement in the Basel III capital framework is an important development that would provide a consistent leverage ratio measure across internationally-active institutions. Furthermore, the supplementary leverage ratio is reflective of the on- and off-balance sheet activities of large, internationally active banking organizations. Accordingly, consistent with Basel III, the interim final rule implements for reporting purposes the proposed supplementary leverage ratio for advanced approaches FDICsupervised institutions starting on January 1, 2015 and requires advanced approaches FDIC-supervised institutions to comply with the minimum supplementary leverage ratio requirement starting on January 1, 2018. Public reporting of the supplementary leverage ratio during the international supervisory monitoring period is consistent with the international implementation timeline and enables transparency and comparability of E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations reporting the leverage ratio requirement across jurisdictions. The FDIC is not applying the supplementary leverage ratio requirement to FDIC-supervised institutions that are not subject to the advanced approaches rule in the interim final rule. Applying the supplementary leverage ratio routinely could create operational complexity for smaller FDIC-supervised institutions that are not internationally active, and that generally do not have off-balance sheet activities that are as extensive as FDICsupervised institutions that are subject to the advanced approaches rule. The FDIC notes that the interim final rule imposes risk-based capital requirements on all repo-style transactions and otherwise imposes constraints on all FDIC-supervised institutions’ offbalance sheet exposures. With regard to the commenters’ views to require the use of IFRS for purposes of the supplementary leverage ratio, the FDIC notes that the use of GAAP in the interim final rule as a starting point to measure exposure of certain derivatives and repo-style transactions, has the advantage of maintaining consistency between regulatory capital calculations and regulatory reporting, the latter of which must be consistent with GAAP or, if another accounting principle is used, no less stringent than GAAP.28 In response to the commenters’ views regarding the scope of the total leverage exposure, the FDIC notes that the supplementary leverage ratio is intended to capture on- and off-balance sheet exposures of an FDIC-supervised institution. Commitments represent an agreement to extend credit and thus including commitments (both funded and unfunded) in the supplementary leverage ratio is consistent with its purpose to measure the on- and offbalance sheet leverage of an FDICsupervised institution, as well as with safety and soundness principles. Accordingly, the FDIC believes that total leverage exposure should include FDICsupervised institutions’ off-balance sheet exposures, including all loan commitments that are not unconditionally cancellable, financial standby letters of credit, performance standby letters of credit, and commercial and other similar letters of credit. The proposal to include unconditionally cancellable commitments in the total leverage exposure recognizes that a banking organization may extend credit under the commitment before it is cancelled. If the banking organization exercises its 28 See 12 U.S.C. 1831n(a)(2). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 option to cancel the commitment, its total leverage exposure amount with respect to the commitment will be limited to any extension of credit prior to cancellation. The proposal considered banking organizations’ ability to cancel such commitments and, therefore, limited the amount of unconditionally cancellable commitments included in total leverage exposure to 10 percent of the notional amount of such commitments. The FDIC notes that the credit conversion factors used in the supplementary leverage ratio and in any forthcoming liquidity ratio requirements have been developed to serve the purposes of the respective frameworks and may not be identical. Similarly, the commenters’ proposed modifications to credit conversion factors for trade finance transactions would be inconsistent with the purpose of the supplementary leverage ratio—to capture all off-balance sheet exposures of banking organizations in a primarily non-risk-based manner. For purposes of incorporating derivative contracts in the total leverage exposure, the proposal would require all advanced approaches banking organizations to use the same methodology to measure such exposures. The proposed approach provides a uniform measure of exposure for derivative contracts across banking organizations, without regard to their models. Accordingly, the FDIC does not believe an FDIC-supervised institution should be permitted to use internal models to measure the exposure amount of derivative contracts for purposes of the supplementary leverage ratio. With regard to commenters requesting a modification of the proposed treatment for repo-style transactions, the FDIC does not believe that the proposed modifications are warranted at this time because international discussions and quantitative analysis of the exposure measure for repo-style transactions are still ongoing. The FDIC is continuing to work with the BCBS to assess the Basel III leverage ratio, including its calibration and design, as well as the impact of any differences in national accounting frameworks material to the denominator of the Basel III leverage ratio. The FDIC will consider any changes to the supplementary leverage ratio as the BCBS revises the Basel III leverage ratio. Therefore, the FDIC has adopted the proposed supplementary leverage ratio in the interim final rule without modification. An advanced approaches FDIC-supervised institution must calculate the supplementary leverage ratio as the simple arithmetic mean of PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 55353 the ratio of the FDIC-supervised institution’s tier 1 capital to total leverage exposure as of the last day of each month in the reporting quarter. The FDIC also notes that collateral may not be applied to reduce the potential future exposure (PFE) amount for derivative contracts. Under the interim final rule, total leverage exposure equals the sum of the following: (1) The balance sheet carrying value of all of the FDIC-supervised institution’s on-balance sheet assets less amounts deducted from tier 1 capital under section 22(a), (c), and (d) of the interim final rule; (2) The PFE amount for each derivative contract to which the FDICsupervised institution is a counterparty (or each single-product netting set of such transactions) determined in accordance with section 34 of the interim final rule, but without regard to section 34(b); (3) 10 percent of the notional amount of unconditionally cancellable commitments made by the FDICsupervised institution; and (4) The notional amount of all other off-balance sheet exposures of the FDICsupervised institution (excluding securities lending, securities borrowing, reverse repurchase transactions, derivatives and unconditionally cancellable commitments). Advanced approaches FDICsupervised institutions must maintain a minimum supplementary leverage ratio of 3 percent beginning on January 1, 2018, consistent with Basel III. However, as noted above, beginning on January 1, 2015, advanced approaches FDIC-supervised institutions must calculate and report their supplementary leverage ratio. The FDIC is seeking commenters’ views on the interaction of this interim final rule with the proposed rule regarding the supplementary leverage ratio for large, systemically important banking organizations. D. Capital Conservation Buffer During the recent financial crisis, some banking organizations continued to pay dividends and substantial discretionary bonuses even as their financial condition weakened. Such capital distributions had a significant negative impact on the overall strength of the banking sector. To encourage better capital conservation by banking organizations and to enhance the resilience of the banking system, the proposed rule would have limited capital distributions and discretionary bonus payments for banking organizations that do not hold a E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55354 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations specified amount of common equity tier 1 capital in addition to the amount of regulatory capital necessary to meet the minimum risk-based capital requirements (capital conservation buffer), consistent with Basel III. In this way, the capital conservation buffer is intended to provide incentives for banking organizations to hold sufficient capital to reduce the risk that their capital levels would fall below their minimum requirements during a period of financial stress. The proposed rules incorporated a capital conservation buffer composed of common equity tier 1 capital in addition to the minimum risk-based capital requirements. Under the proposal, a banking organization would need to hold a capital conservation buffer in an amount greater than 2.5 percent of total risk-weighted assets (plus, for an advanced approaches banking organization, 100 percent of any applicable countercyclical capital buffer amount) to avoid limitations on capital distributions and discretionary bonus payments to executive officers, as defined in the proposal. The proposal provided that the maximum dollar amount that a banking organization could pay out in the form of capital distributions or discretionary bonus payments during the current calendar quarter (the maximum payout amount) would be equal to a maximum payout ratio, multiplied by the banking organization’s eligible retained income, as discussed below. The proposal provided that a banking organization with a buffer of more than 2.5 percent of total risk-weighted assets (plus, for an advanced approaches banking organization, 100 percent of any applicable countercyclical capital buffer), would not be subject to a maximum payout amount. The proposal clarified that the agencies reserved the ability to restrict capital distributions under other authorities and that restrictions on capital distributions and discretionary bonus payments associated with the capital conservation buffer would not be part of the PCA framework. The calibration of the buffer is supported by an evaluation of the loss experience of U.S. banking organizations as part of an analysis conducted by the BCBS, as well as by evaluation of historical levels of capital at U.S. banking organizations.29 The agencies received a significant number of comments on the proposed capital conservation buffer. In general, 29 ‘‘Calibrating regulatory capital requirements and buffers: A top-down approach.’’ Basel Committee on Banking Supervision, October, 2010, available at www.bis.org. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the commenters characterized the capital conservation buffer as overly conservative, and stated that the aggregate amount of capital that would be required for a banking organization to avoid restrictions on dividends and discretionary bonus payments under the proposed rule exceeded the amount required for a safe and prudent banking system. Commenters expressed concern that the capital conservation buffer could disrupt the priority of payments in a banking organization’s capital structure, as any restrictions on dividends would apply to both common and preferred stock. Commenters also questioned the appropriateness of restricting a banking organization that fails to comply with the capital conservation buffer from paying dividends or bonus payments if it has established and maintained cash reserves to cover future uncertainty. One commenter supported the establishment of a formal mechanism for banking organizations to request agency approval to make capital distributions even if doing so would otherwise be restricted under the capital conservation buffer. Other commenters recommended an exemption from the proposed capital conservation buffer for certain types of banking organizations, such as community banking organizations, banking organizations organized in mutual form, and rural BHCs that rely heavily on bank stock loans for growth and expansion purposes. Commenters also recommended a wide range of institutions that should be excluded from the buffer based on a potential size threshold, such as banking organizations with total consolidated assets of less than $250 billion. Commenters also recommended that Scorporations be exempt from the proposed capital conservation buffer because under the U.S. Internal Revenue Code, S-corporations are not subject to a corporate-level tax; instead, Scorporation shareholders must report income and pay income taxes based on their share of the corporation’s profit or loss. An S-corporation generally declares a dividend to help shareholders pay their tax liabilities that arise from reporting their share of the corporation’s profits. According to some commenters, the proposal disadvantaged Scorporations because shareholders of Scorporations would be liable for tax on the S-corporation’s net income, and the S-corporation may be prohibited from making a dividend to these shareholders to fund the tax payment. One commenter criticized the proposed composition of the capital conservation buffer (which must consist PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 solely of common equity tier 1 capital) and encouraged the agencies to allow banking organizations to include noncumulative perpetual preferred stock and other tier 1 capital instruments. Several commenters questioned the empirical basis for a capital conservation buffer of 2.5 percent, and encouraged the agencies to provide a quantitative analysis for the proposal. One commenter suggested application of the capital conservation buffer only during economic downturn scenarios, consistent with the agencies’ objective to restrict dividends and discretionary bonus payments during these periods. According to this commenter, a banking organization that fails to maintain a sufficient capital conservation buffer during periods of economic stress also could be required to submit a plan to increase its capital. After considering these comments, the FDIC has decided to maintain common equity tier 1 capital as the basis of the capital conservation buffer and to apply the capital conservation buffer to all types of FDIC-supervised institutions at all times. Application of the buffer to all types of FDIC-supervised institutions and maintenance of a capital buffer during periods of market and economic stability is appropriate to encourage sound capital management and help ensure that FDIC-supervised institutions will maintain adequate amounts of lossabsorbing capital going forward, strengthening the ability of the banking system to continue serving as a source of credit to the economy in times of stress. A buffer framework that restricts dividends and discretionary bonus payments only for certain types of FDICsupervised institutions or only during an economic contraction would not achieve these objectives. Similarly, basing the capital conservation buffer on the most loss-absorbent form of capital is most consistent with the purpose of the capital conservation buffer as it helps to ensure that the buffer can be used effectively by FDIC-supervised institutions at a time when they are experiencing losses. The FDIC recognizes that Scorporation FDIC-supervised institutions structure their tax payments differently from C corporations. However, the FDIC notes that this distinction results from S-corporations’ pass-through taxation, in which profits are not subject to taxation at the corporate level, but rather at the shareholder level. The FDIC is charged with evaluating the capital levels and safety and soundness of the FDICsupervised institution. At the point where a decrease in the organization’s capital triggers dividend restrictions, the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations FDIC believes that capital should stay within the FDIC-supervised institution. S-corporation shareholders may receive a benefit from pass-through taxation, but with that benefit comes the risk that the corporation has no obligation to make dividend distributions to help shareholders pay their tax liabilities. Therefore, the interim final rule does not exempt S-corporations from the capital conservation buffer. Accordingly, under the interim final rule an FDIC-supervised institution must maintain a capital conservation buffer of common equity tier 1 capital in an amount greater than 2.5 percent of total risk-weighted assets (plus, for an advanced approaches FDIC-supervised institution, 100 percent of any applicable countercyclical capital buffer amount) to avoid being subject to limitations on capital distributions and discretionary bonus payments to executive officers. The proposal defined eligible retained income as a banking organization’s net income (as reported in the banking organization’s quarterly regulatory reports) for the four calendar quarters preceding the current calendar quarter, net of any capital distributions and associated tax effects not already reflected in net income. The agencies received a number of comments regarding the proposed definition of eligible retained income, which is used to calculate the maximum payout amount. Some commenters suggested that the agencies limit capital distributions based on retained earnings instead of eligible retained income, citing the Federal Reserve’s Regulation H as an example of this regulatory practice.30 Several commenters representing banking organizations organized as S-corporations recommended revisions to the definition of eligible retained income so that it would be net of pass-through tax distributions to shareholders that have made a pass-through election for tax purposes, allowing S-corporation shareholders to pay their tax liability notwithstanding any dividend restrictions resulting from failure to comply with the capital conservation buffer. Some commenters suggested that the definition of eligible retained income be adjusted for items such as goodwill impairment that are captured in the definition of ‘‘net income’’ for regulatory reporting purposes but which do not affect regulatory capital. The interim final rule adopts the proposed definition of eligible retained income without change. The FDIC believes the commenters’ suggested 30 See 12 CFR part 208. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 modifications to the definition of eligible retained income would add complexity to the interim final rule and in some cases may be counterproductive by weakening the incentives of the capital conservation buffer. The FDIC notes that the definition of eligible retained income appropriately accounts for impairment charges, which reduce eligible retained income but also reduces the balance sheet amount of goodwill that is deducted from regulatory capital. Further, the proposed definition of eligible retained income, which is based on net income as reported in the banking organization’s quarterly regulatory reports, reflects a simple measure of a banking organization’s recent performance upon which to base restrictions on capital distributions and discretionary payments to executive officers. For the same reasons as described above regarding the application of the capital conservation buffer to S-corporations generally, the FDIC has determined that the definition of eligible retained income should not be modified to address the tax-related concerns raised by commenters writing on behalf of Scorporations. The proposed rule generally defined a capital distribution as a reduction of tier 1 or tier 2 capital through the repurchase or redemption of a capital instrument or by other means; a dividend declaration or payment on any tier 1 or tier 2 capital instrument if the banking organization has full discretion to permanently or temporarily suspend such payments without triggering an event of default; or any similar transaction that the primary Federal supervisor determines to be in substance a distribution of capital. Commenters provided suggestions on the definition of ‘‘capital distribution.’’ One commenter requested that a ‘‘capital distribution’’ be defined to exclude any repurchase or redemption to the extent the capital repurchased or redeemed was replaced in a contemporaneous transaction by the issuance of capital of an equal or higher quality tier. The commenter maintained that the proposal would unnecessarily penalize banking organizations that redeem capital but contemporaneously replace such capital with an equal or greater amount of capital of an equivalent or higher quality. In response to comments, and recognizing that redeeming capital instruments that are replaced with instruments of the same or similar quality does not weaken a banking organization’s overall capital position, the interim final rule provides that a redemption or repurchase of a capital instrument is not a distribution PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 55355 provided that the banking organization fully replaces that capital instrument by issuing another capital instrument of the same or better quality (that is, more subordinate) based on the interim final rule’s eligibility criteria for capital instruments, and provided that such issuance is completed within the same calendar quarter the banking organization announces the repurchase or redemption. For purposes of this definition, a capital instrument is issued at the time that it is fully paid in. For purposes of the interim final rule, the FDIC changed the defined term from ‘‘capital distribution’’ to ‘‘distribution’’ to avoid confusion with the term ‘‘capital distribution’’ used in the Federal Reserve’s capital plan rule.31 The proposed rule defined discretionary bonus payment as a payment made to an executive officer of a banking organization (as defined below) that meets the following conditions: The banking organization retains discretion as to the fact of the payment and as to the amount of the payment until the payment is awarded to the executive officer; the amount paid is determined by the banking organization without prior promise to, or agreement with, the executive officer; and the executive officer has no contractual right, express or implied, to the bonus payment. The agencies received a number of comments on the proposed definition of discretionary bonus payments to executive officers. One commenter expressed concern that the proposed definition of discretionary bonus payment may not be effective unless the agencies provided clarification as to the type of payments covered, as well as the timing of such payments. This commenter asked whether the proposed rule would prohibit the establishment of a pre-funded bonus pool with mandatory distributions and sought clarification as to whether non-cash compensation payments, such as stock options, would be considered a discretionary bonus payment. The interim final rule’s definition of discretionary bonus payment is unchanged from the proposal. The FDIC notes that if an FDIC-supervised institution prefunds a pool for bonuses payable under a contract, the bonus pool is not discretionary and, therefore, is not subject to the capital conservation buffer limitations. In addition, the definition of discretionary bonus payment does not include non-cash compensation payments that do not affect capital or earnings such as, in some cases, stock options. 31 See E:\FR\FM\10SER2.SGM 12 CFR 225.8. 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55356 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Commenters representing community banking organizations maintained that the proposed restrictions on discretionary bonus payments would disproportionately impact such institutions’ ability to attract and retain qualified employees. One commenter suggested revising the proposed rule so that a banking organization that fails to satisfy the capital conservation buffer would be restricted from making a discretionary bonus payment only to the extent it exceeds 15 percent of the employee’s salary, asserting that this would prevent excessive bonus payments while allowing community banking organizations flexibility to compensate key employees. The interim final rule does not incorporate this suggestion. The FDIC notes that the potential limitations and restrictions under the capital conservation buffer framework do not automatically translate into a prohibition on discretionary bonus payments. Instead, the overall dollar amount of dividends and bonuses to executive officers is capped based on how close the banking organization’s regulatory capital ratios are to its minimum capital ratios and on the earnings of the banking organization that are available for distribution. This approach provides appropriate incentives for capital conservation while preserving flexibility for institutions to decide how to allocate income available for distribution between discretionary bonus payments and other distributions. The proposal defined executive officer as a person who holds the title or, without regard to title, salary, or compensation, performs the function of one or more of the following positions: President, chief executive officer, executive chairman, chief operating officer, chief financial officer, chief investment officer, chief legal officer, chief lending officer, chief risk officer, or head of a major business line, and other staff that the board of directors of the banking organization deems to have equivalent responsibility.32 Commenters generally supported a more restrictive definition of executive officer, arguing that the definition of executive officer should be no broader than the definition under the Federal Reserve’s Regulation O,33 which governs any extension of credit between a member bank and an executive officer, director, or principal shareholder. Some commenters, however, favored a more expansive definition of executive officer, with one commenter supporting 32 See 76 FR 21170 (April 14, 2011) for a comparable definition of ‘‘executive officer.’’ 33 See 12 CFR part 215. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the inclusion of directors of the banking organization or directors of any of the banking organization’s affiliates, any other person in control of the banking organization or the banking organizations’ affiliates, and any person in control of a major business line. In accordance with the FDIC’s objective to include those individuals within an FDIC-supervised institution with the greatest responsibility for the organization’s financial condition and risk exposure, the interim final rule maintains the definition of executive officer as proposed. Under the proposal, advanced approaches banking organizations would have calculated their capital conservation buffer (and any applicable countercyclical capital buffer amount) using their advanced approaches total risk-weighted assets. Several commenters supported this aspect of the proposal, and one stated that the methodologies for calculating riskweighted assets under the advanced approaches rule would more effectively capture the individual risk profiles of such banking organizations, asserting further that advanced approaches banking organizations would face a competitive disadvantage relative to foreign banking organizations if they were required to use standardized total risk-weighted assets to determine compliance with the capital conservation buffer. In contrast, another commenter suggested that advanced approaches banking organizations be allowed to use the advanced approaches methodologies as the basis for calculating the capital conservation buffer only when it would result in a more conservative outcome than under the standardized approach in order to maintain competitive equity domestically. Another commenter expressed concerns that the capital conservation buffer is based only on risk-weighted assets and recommended additional application of a capital conservation buffer to the leverage ratio to avoid regulatory arbitrage opportunities and to accomplish the agencies’ stated objective of ensuring that banking organizations have sufficient capital to absorb losses. The interim final rule requires that advanced approaches FDIC-supervised institutions that have completed the parallel run process and that have received notification from the FDIC supervisor pursuant to section 121(d) of subpart E use their risk-based capital ratios under section 10 of the interim final rule (that is, the lesser of the standardized and the advanced approaches ratios) as the basis for calculating their capital conservation PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 buffer (and any applicable countercyclical capital buffer). The FDIC believes such an approach is appropriate because it is consistent with how advanced approaches FDICsupervised institutions compute their minimum risk-based capital ratios. Many commenters discussed the interplay between the proposed capital conservation buffer and the PCA framework. Some commenters encouraged the agencies to reset the buffer requirement to two percent of total risk-weighted assets in order to align it with the margin between the ‘‘adequately-capitalized’’ category and the ‘‘well-capitalized’’ category under the PCA framework. Similarly, some commenters characterized the proposal as confusing because a banking organization could be considered well capitalized for PCA purposes, but at the same time fail to maintain a sufficient capital conservation buffer and be subject to restrictions on capital distributions and discretionary bonus payments. These commenters encouraged the agencies to remove the capital conservation buffer for purposes of the interim final rule, and instead use their existing authority to impose restrictions on dividends and discretionary bonus payments on a caseby-case basis through formal enforcement actions. Several commenters stated that compliance with a capital conservation buffer that operates outside the traditional PCA framework adds complexity to the interim final rule, and suggested increasing minimum capital requirements if the agencies determine they are currently insufficient. Specifically, one commenter encouraged the agencies to increase the minimum total risk-based capital requirement to 10.5 percent and remove the capital conservation buffer from the rule. The capital conservation buffer has been designed to give banking organizations the flexibility to use the buffer while still being well capitalized. Banking organizations that maintain their risk-based capital ratios at least 50 basis points above the well capitalized PCA levels will not be subject to any restrictions imposed by the capital conservation buffer, as applicable. As losses begin to accrue or a banking organization’s risk-weighted assets begin to grow such that the capital ratios of a banking organization are below the capital conservation buffer but above the well capitalized thresholds, the incremental limitations on distributions are unlikely to affect planned capital distributions or discretionary bonus payments but may provide a check on rapid expansion or other activities that E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations would weaken the organization’s capital position. Under the interim final rule, the maximum payout ratio is the percentage of eligible retained income that an FDICsupervised institution is allowed to pay out in the form of distributions and discretionary bonus payments, each as defined under the rule, during the current calendar quarter. The maximum payout ratio is determined by the FDICsupervised institution’s capital conservation buffer as calculated as of the last day of the previous calendar quarter. An FDIC-supervised institution’s capital conservation buffer is the lowest of the following ratios: (i) The FDICsupervised institution’s common equity tier 1 capital ratio minus its minimum common equity tier 1 capital ratio; (ii) the FDIC-supervised institution’s tier 1 capital ratio minus its minimum tier 1 capital ratio; and (iii) the FDICsupervised institution’s total capital ratio minus its minimum total capital ratio. If the FDIC-supervised institution’s common equity tier 1, tier 1 or total capital ratio is less than or equal to its minimum common equity tier 1, tier 1 or total capital ratio, respectively, the FDIC-supervised institution’s capital conservation buffer is zero. The mechanics of the capital conservation buffer under the interim final rule are unchanged from the proposal. An FDIC-supervised institution’s maximum payout amount for the current calendar quarter is equal to the FDIC-supervised institution’s eligible retained income, multiplied by the applicable maximum payout ratio, in accordance with Table 1. An FDICsupervised institution with a capital conservation buffer that is greater than 2.5 percent (plus, for an advanced approaches FDIC-supervised institution, 100 percent of any applicable countercyclical capital buffer) is not subject to a maximum payout amount as a result of the application of this provision. However, an FDIC-supervised institution may otherwise be subject to limitations on capital distributions as a result of supervisory actions or other laws or regulations.34 Table 1 illustrates the relationship between the capital conservation buffer and the maximum payout ratio. The maximum dollar amount that an FDICsupervised institution is permitted to pay out in the form of distributions or discretionary bonus payments during 34 See, e.g., 1831o(d)(1), 12 CFR 303.241, and 12 CFR part 324, Subpart H (state nonmember banks and state savings associations as of January 1, 2014 for advanced approaches banks and as of January 1, 2015 for all other organizations). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the current calendar quarter is equal to the maximum payout ratio multiplied by the FDIC-supervised institution’s eligible retained income. The calculation of the maximum payout amount is made as of the last day of the previous calendar quarter and any resulting restrictions apply during the current calendar quarter. TABLE 1—CAPITAL CONSERVATION BUFFER AND MAXIMUM PAYOUT RATIO 35 Capital conservation buffer (as a percentage of standardized or advanced total riskweighted assets, as applicable) Maximum payout ratio (as a percentage of eligible retained income) Greater than 2.5 percent ....... No payout ratio limitation applies. 60 percent. Less than or equal to 2.5 percent, and greater than 1.875 percent. Less than or equal to 1.875 percent, and greater than 1.25 percent. Less than or equal to 1.25 percent, and greater than 0.625 percent. Less than or equal to 0.625 percent. 40 percent. 20 percent. 0 percent. Table 1 illustrates that the capital conservation buffer requirements are divided into equal quartiles, each associated with increasingly stringent limitations on distributions and discretionary bonus payments to executive officers as the capital conservation buffer approaches zero. As described in the next section, each quartile expands proportionately for advanced approaches FDIC-supervised institutions when the countercyclical capital buffer amount is greater than zero. In a scenario where an FDICsupervised institution’s risk-based capital ratios fall below its minimum risk-based capital ratios plus 2.5 percent of total risk-weighted assets, the maximum payout ratio also would decline. An FDIC-supervised institution that becomes subject to a maximum payout ratio remains subject to restrictions on capital distributions and certain discretionary bonus payments until it is able to build up its capital conservation buffer through retained earnings, raising additional capital, or reducing its risk-weighted assets. In addition, as a general matter, an FDICsupervised institution cannot make 35 Calculations in this table are based on the assumption that the countercyclical capital buffer amount is zero. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 55357 distributions or certain discretionary bonus payments during the current calendar quarter if the FDIC-supervised institution’s eligible retained income is negative and its capital conservation buffer was less than 2.5 percent as of the end of the previous quarter. Compliance with the capital conservation buffer is determined prior to any distribution or discretionary bonus payment. Therefore, an FDICsupervised institution with a capital buffer of more than 2.5 percent is not subject to any restrictions on distributions or discretionary bonus payments even if such distribution or payment would result in a capital buffer of less than or equal to 2.5 percent in the current calendar quarter. However, to remain free of restrictions for purposes of any subsequent quarter, the FDIC-supervised institution must restore capital to increase the buffer to more than 2.5 percent prior to any distribution or discretionary bonus payment in any subsequent quarter. In the proposal, the agencies solicited comment on the impact, if any, of prohibiting a banking organization that is subject to a maximum payout ratio of zero percent from making a penny dividend to common stockholders. One commenter stated that such banking organizations should be permitted to pay a penny dividend on their common stock notwithstanding the limitations imposed by the capital conservation buffer. This commenter maintained that the inability to pay any dividend on common stock could make it more difficult to attract equity investors such as pension funds that often are required to invest only in institutions that pay a quarterly dividend. While the FDIC did not incorporate a blanket exemption for penny dividends on common stock, under the interim final rule, as under the proposal, it may permit an FDICsupervised institution to make a distribution or discretionary bonus payment if it determines that such distribution or payment would not be contrary to the purpose of the capital conservation buffer or the safety and soundness of the organization. In making such determinations, the FDIC would consider the nature of and circumstances giving rise to the request. E. Countercyclical Capital Buffer The proposed rule introduced a countercyclical capital buffer applicable to advanced approaches banking organizations to augment the capital conservation buffer during periods of excessive credit growth. Under the proposed rule, the countercyclical capital buffer would have required advanced approaches banking E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55358 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations organizations to hold additional common equity tier 1 capital during specific, agency-determined periods in order to avoid limitations on distributions and discretionary bonus payments. The agencies requested comment on the countercyclical capital buffer and, specifically, on any factors that should be considered for purposes of determining whether to activate it. One commenter encouraged the agencies to consider readily available indicators of economic growth, employment levels, and financial sector profits. This commenter stated generally that the agencies should activate the countercyclical capital buffer during periods of general economic growth or high financial sector profits, instead of reserving it only for periods of ‘‘excessive credit growth.’’ Other commenters did not support using the countercyclical capital buffer as a macroeconomic tool. One commenter encouraged the agencies not to include the countercyclical capital buffer in the interim final rule and, instead, rely on the Federal Reserve’s longstanding authority over monetary policy to mitigate excessive credit growth and potential asset bubbles. Another commenter questioned the buffer’s effectiveness and encouraged the agencies to conduct a QIS prior to its implementation. One commenter recommended expanding the applicability of the proposed countercyclical capital buffer on a caseby-case basis to institutions with total consolidated assets between $50 and $250 billion. Another commenter, however, supported the application of the countercyclical capital buffer only to institutions with total consolidated assets above $250 billion. The Dodd-Frank Act requires the agencies to consider the use of countercyclical aspects of capital regulation, and the countercyclical capital buffer is an explicitly countercyclical element of capital regulation.36 The FDIC notes that implementation of the countercyclical capital buffer for advanced approaches FDIC-supervised institutions is an important part of the Basel III framework, which aims to enhance the resilience of the banking system and reduce systemic vulnerabilities. The FDIC believes that the countercyclical capital buffer is most appropriately applied only to advanced approaches FDIC-supervised institutions because, generally, such organizations are more interconnected with other financial institutions. Therefore, the marginal benefits to financial stability from a countercyclical capital buffer function should be greater with respect to such institutions. Application of the countercyclical capital buffer only to advanced approaches FDIC-supervised institutions also reflects the fact that making cyclical adjustments to capital requirements may produce smaller financial stability benefits and potentially higher marginal costs for smaller FDIC-supervised institutions. The countercyclical capital buffer is designed to take into account the macrofinancial environment in which FDICsupervised institutions function and to protect the banking system from the systemic vulnerabilities that may buildup during periods of excessive credit growth, which may potentially unwind in a disorderly way, causing disruptions to financial institutions and ultimately economic activity. The countercyclical capital buffer aims to protect the banking system and reduce systemic vulnerabilities in two ways. First, the accumulation of a capital buffer during an expansionary phase could increase the resilience of the banking system to declines in asset prices and consequent losses that may occur when the credit conditions weaken. Specifically, when the credit cycle turns following a period of excessive credit growth, accumulated capital buffers act to absorb the abovenormal losses that an FDIC-supervised institution likely would face. Consequently, even after these losses are realized, FDIC-supervised institutions would remain healthy and able to access funding, meet obligations, and continue to serve as credit intermediaries. Second, a countercyclical capital buffer also may reduce systemic vulnerabilities and protect the banking system by mitigating excessive credit growth and increases in asset prices that are not supported by fundamental factors. By increasing the amount of capital required for further credit extensions, a countercyclical capital buffer may limit excessive credit.37 Thus, the FDIC believes that the countercyclical capital buffer is an appropriate macroeconomic tool and is including it in the interim final rule. One commenter expressed concern that the proposed rule would not require the agencies to activate the countercyclical capital buffer pursuant to a joint, interagency determination. This commenter encouraged the 36 Section 616(a), (b), and (c) of the Dodd-Frank Act, codified at 12 U.S.C. 1844(b), 1464a(g)(1), and 3907(a)(1). . 37 The operation of the countercyclical capital buffer is also consistent with sections 616(a), (b), and (c) of the Dodd-Frank Act, codified at 12 U.S.C. 1844(b), 1464a(g)(1), and 3907(a)(1). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 agencies to adopt an interagency process for activating the buffer for purposes of the interim final rule. As discussed in the Basel III NPR, the agencies anticipate making such determinations jointly. Because the countercyclical capital buffer amount would be linked to the condition of the overall U.S. financial system and not the characteristics of an individual banking organization, the agencies expect that the countercyclical capital buffer amount would be the same at the depository institution and holding company levels. The agencies solicited comment on the appropriateness of the proposed 12-month prior notification period for the countercyclical capital buffer amount. One commenter expressed concern regarding the potential for the agencies to activate the countercyclical capital buffer without providing banking organizations sufficient notice, and specifically requested the implementation of a prior notification requirement of not less than 12 months for purposes of the interim final rule. In general, to provide banking organizations with sufficient time to adjust to any changes to the countercyclical capital buffer under the interim final rule, the agencies expect to announce an increase in the U.S. countercyclical capital buffer amount with an effective date at least 12 months after their announcement. However, if the agencies determine that a more immediate implementation is necessary based on economic conditions, the agencies may require an earlier effective date. The agencies will follow the same procedures in adjusting the countercyclical capital buffer applicable for exposures located in foreign jurisdictions. For purposes of the interim final rule, consistent with the proposal, a decrease in the countercyclical capital buffer amount will be effective on the day following announcement of the final determination or the earliest date permissible under applicable law or regulation, whichever is later. In addition, the countercyclical capital buffer amount will return to zero percent 12 months after its effective date, unless the agencies announce a decision to maintain the adjusted countercyclical capital buffer amount or adjust it again before the expiration of the 12-month period. The countercyclical capital buffer augments the capital conservation buffer by up to 2.5 percent of an FDICsupervised institution’s total riskweighted assets. Consistent with the proposal, the interim final rule requires an advanced approaches FDIC- E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations supervised institution to determine its countercyclical capital buffer amount by calculating the weighted average of the countercyclical capital buffer amounts established for the national jurisdictions where the FDIC-supervised institution has private sector credit exposures. The contributing weight assigned to a jurisdiction’s countercyclical capital buffer amount is calculated by dividing the total risk-weighted assets for the FDIC-supervised institution’s private sector credit exposures located in the jurisdiction by the total risk-weighted assets for all of the FDIC-supervised institution’s private sector credit exposures. Under the proposed rule, private sector credit exposure was defined as an exposure to a company or an individual that is included in credit risk-weighted assets, not including an exposure to a sovereign entity, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, a multilateral development bank (MDB), a public sector entity (PSE), or a Government-sponsored Enterprise (GSE). While the proposed definition excluded covered positions with specific risk under the market risk rule, the agencies explicitly recognized that they should be included in the measure of risk-weighted assets for private-sector exposures and asked a question regarding how to incorporate these positions in the measure of riskweighted assets, particularly for positions for which an FDIC-supervised institution uses models to measure specific risk. The agencies did not receive comments on this question. The interim final rule includes covered positions under the market risk rule in the definition of private sector credit exposure. Thus, a private sector credit exposure is an exposure to a company or an individual, not including an exposure to a sovereign entity, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, an MDB, a PSE, or a GSE. The interim final rule is also more specific than the proposal regarding how to calculate riskweighted assets for private sector credit exposures, and harmonizes that calculation with the advanced approaches FDIC-supervised institution’s determination of its capital conservation buffer generally. An advanced approaches FDIC-supervised institution is subject to the countercyclical capital buffer regardless of whether it has completed the parallel run process and received notification from the FDIC pursuant to section 121(d) of the rule. The methodology an advanced approaches FDIC-supervised institution must use for determining risk-weighted assets for private sector credit exposures must be the methodology that the FDIC-supervised institution uses to determine its riskbased capital ratios under section 10 of the interim final rule. Notwithstanding this provision, the risk-weighted asset amount for a private sector credit exposure that is a covered position is its specific risk add-on, as determined under the market risk rule’s standardized measurement method for specific risk, multiplied by 12.5. The FDIC chose this methodology because it allows the specific risk of a position to be allocated to the position’s geographic location in a consistent manner across FDIC-supervised institutions. Consistent with the proposal, under the interim final rule the geographic location of a private sector credit exposure (that is not a securitization exposure) is the national jurisdiction where the borrower is located (that is, where the borrower is incorporated, chartered, or similarly established or, if it is an individual, where the borrower 55359 resides). If, however, the decision to issue the private sector credit exposure is based primarily on the creditworthiness of a protection provider, the location of the nonsecuritization exposure is the location of the protection provider. The location of a securitization exposure is the location of the underlying exposures, determined by reference to the location of the borrowers on those exposures. If the underlying exposures are located in more than one national jurisdiction, the location of a securitization exposure is the national jurisdiction where the underlying exposures with the largest aggregate unpaid principal balance are located. Table 2 illustrates how an advanced approaches FDIC-supervised institution calculates its weighted average countercyclical capital buffer amount. In the following example, the countercyclical capital buffer established in the various jurisdictions in which the FDIC-supervised institution has private sector credit exposures is reported in column A. Column B contains the FDIC-supervised institution’s risk-weighted asset amounts for the private sector credit exposures in each jurisdiction. Column C shows the contributing weight for each countercyclical capital buffer amount, which is calculated by dividing each of the rows in column B by the total for column B. Column D shows the contributing weight applied to each countercyclical capital buffer amount, calculated as the product of the corresponding contributing weight (column C) and the countercyclical capital buffer set by each jurisdiction’s national supervisor (column A). The sum of the rows in column D shows the FDIC-supervised institution’s weighted average countercyclical capital buffer, which is 1.4 percent of risk-weighted assets. TABLE 2—EXAMPLE OF WEIGHTED AVERAGE BUFFER CALCULATION FOR AN ADVANCED APPROACHES FDIC-SUPERVISED INSTITUTION emcdonald on DSK67QTVN1PROD with RULES2 (A) Countercyclical capital buffer amount set by national supervisor (percent) (B) FDIC-supervised institution’s riskweighted assets for private sector credit exposures ($b) (C) Contributing weight (column B/column B total) (D) Contributing weight applied to each countercyclical capital buffer amount (column A * column C) Non-U.S. jurisdiction 1 ................................................................................... Non-U.S. jurisdiction 2 ................................................................................... U.S. ................................................................................................................ 2.0 1.5 1 250 100 500 0.29 0.12 0.59 0.6 0.2 0.6 Total ........................................................................................................ .......................... 850 1.00 1.4 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55360 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations The countercyclical capital buffer expands an FDIC-supervised institution’s capital conservation buffer range for purposes of determining the FDIC-supervised institution’s maximum payout ratio. For instance, if an advanced approaches FDIC-supervised institution’s countercyclical capital buffer amount is equal to zero percent of total risk-weighted assets, the FDICsupervised institution must maintain a buffer of greater than 2.5 percent of total risk-weighted assets to avoid restrictions on its distributions and discretionary bonus payments. However, if its countercyclical capital buffer amount is equal to 2.5 percent of total riskweighted assets, the FDIC-supervised institution must maintain a buffer of greater than 5 percent of total riskweighted assets to avoid restrictions on its distributions and discretionary bonus payments. As another example, if the advanced approaches FDIC-supervised institution from the example in Table 2 above has a capital conservation buffer of 2.0 percent, and each of the jurisdictions in which it has private sector credit exposures sets its countercyclical capital buffer amount equal to zero, the FDIC-supervised institution would be subject to a maximum payout ratio of 60 percent. If, instead, each country sets its countercyclical capital buffer amount as shown in Table 2, resulting in a countercyclical capital buffer amount of 1.4 percent of total risk-weighted assets, the FDIC-supervised institution’s capital conservation buffer ranges would be expanded as shown in Table 3 below. As a result, the FDIC-supervised institution would now be subject to a stricter 40 percent maximum payout ratio based on its capital conservation buffer of 2.0 percent. TABLE 3—CAPITAL CONSERVATION BUFFER AND MAXIMUM PAYOUT RATIO 38 emcdonald on DSK67QTVN1PROD with RULES2 Capital conservation buffer as expanded by the countercyclical capital buffer amount from Table 2 Greater than 3.9 percent (2.5 percent + 100 percent of the countercyclical capital buffer of 1.4). Less than or equal to 3.9 percent, and greater than 2.925 percent (1.875 percent plus 75 percent of the countercyclical capital buffer of 1.4). VerDate Mar<15>2010 17:14 Sep 09, 2013 Maximum payout ratio (as a percentage of eligible retained income) No payout ratio limitation applies. 60 percent. leverage ratio, tier 1 risk-based capital TABLE 3—CAPITAL CONSERVATION BUFFER AND MAXIMUM PAYOUT ratio, and the total risk-based capital ratio for insured depository institutions. RATIO 38—Continued Capital conservation buffer as expanded by the countercyclical capital buffer amount from Table 2 Less than or equal to 2.925 percent, and greater than 1.95 percent (1.25 percent plus 50 percent of the countercyclical capital buffer of 1.4). Less than or equal to 1.95 percent, and greater than 0.975 percent (.625 percent plus 25 percent of the countercyclical capital buffer of 1.4). Less than or equal to 0.975 percent. Maximum payout ratio (as a percentage of eligible retained income) 40 percent. 20 percent. 0 percent. The countercyclical capital buffer amount under the interim final rule for U.S. credit exposures is initially set to zero, but it could increase if the agencies determine that there is excessive credit in the markets that could lead to subsequent wide-spread market failures. Generally, a zero percent countercyclical capital buffer amount will reflect an assessment that economic and financial conditions are consistent with a period of little or no excessive ease in credit markets associated with no material increase in system-wide credit risk. A 2.5 percent countercyclical capital buffer amount will reflect an assessment that financial markets are experiencing a period of excessive ease in credit markets associated with a material increase in system-wide credit risk. F. Prompt Corrective Action Requirements All insured depository institutions, regardless of total asset size or foreign exposure, currently are required to compute PCA capital levels using the agencies’ general risk-based capital rules, as supplemented by the market risk rule. Section 38 of the Federal Deposit Insurance Act directs the federal banking agencies to resolve the problems of insured depository institutions at the least cost to the Deposit Insurance Fund.39 To facilitate this purpose, the agencies have established five regulatory capital categories in the PCA regulations that include capital thresholds for the 38 Calculations in this table are based on the assumption that the countercyclical capital buffer amount is 1.4 percent of risk-weighted assets, per the example in Table 2. 39 12 U.S.C. 1831o. Jkt 229001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 These five PCA categories under section 38 of the Act and the PCA regulations are: ‘‘well capitalized,’’ ‘‘adequately capitalized,’’ ‘‘undercapitalized,’’ ‘‘significantly undercapitalized,’’ and ‘‘critically undercapitalized.’’ Insured depository institutions that fail to meet these capital measures are subject to increasingly strict limits on their activities, including their ability to make capital distributions, pay management fees, grow their balance sheet, and take other actions.40 Insured depository institutions are expected to be closed within 90 days of becoming ‘‘critically undercapitalized,’’ unless their primary Federal supervisor takes such other action as that primary Federal supervisor determines, with the concurrence of the FDIC, would better achieve the purpose of PCA.41 The proposal maintained the structure of the PCA framework while increasing some of the thresholds for the PCA capital categories and adding the proposed common equity tier 1 capital ratio. For example, under the proposed rule, the thresholds for adequately capitalized FDIC-supervised institutions would be equal to the minimum capital requirements. The risk-based capital ratios for well capitalized FDICsupervised institutions under PCA would continue to be two percentage points higher than the ratios for adequately-capitalized FDIC-supervised institutions, and the leverage ratio for well capitalized FDIC-supervised institutions under PCA would be one percentage point higher than for adequately-capitalized FDIC-supervised institutions. Advanced approaches FDIC-supervised institutions that are insured depository institutions also would be required to satisfy a supplementary leverage ratio of 3 percent in order to be considered adequately capitalized. While the proposed PCA levels do not incorporate the capital conservation buffer, the PCA and capital conservation buffer frameworks would complement each other to ensure that FDIC-supervised institutions hold an adequate amount of common equity tier 1 capital. The agencies received a number of comments on the proposed PCA framework. Several commenters suggested modifications to the proposed PCA levels, particularly with respect to the leverage ratio. For example, a few commenters encouraged the agencies to 40 12 U.S.C. 1831o(e)–(i). See 12 CFR part 325, subpart B. 41 12 U.S.C. 1831o(g)(3). E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations increase the adequately-capitalized and well capitalized categories for the leverage ratio to six percent or more and eight percent or more, respectively. According to one commenter, such thresholds would more closely align with the actual leverage ratios of many state-charted depository institutions. Another commenter expressed concern regarding the operational complexity of the proposed PCA framework in view of the addition of the common equity tier 1 capital ratio and the interaction of the PCA framework and the capital conservation buffer. For example, under the proposed rule a banking organization could be well capitalized for PCA purposes and, at the same time, be subject to restrictions on dividends and bonus payments. Other banking organizations expressed concern that the proposed PCA levels would adversely affect their ability to lend and generate income. This, according to a commenter, also would reduce net income and return-on-equity. The FDIC believes the capital conservation buffer complements the PCA framework—the former works to keep FDIC-supervised institutions above the minimum capital ratios, whereas the latter imposes increasingly stringent consequences on depository institutions, particularly as they fall below the minimum capital ratios. Because the capital conservation buffer is designed to absorb losses in stressful periods, the FDIC believes it is appropriate for a depository institution to be able to use some of its capital conservation buffer without being considered less than well capitalized for PCA purposes. Consistent with the proposal, the interim final rule augments the PCA capital categories by introducing a common equity tier 1 capital measure for four of the five PCA categories (excluding the critically undercapitalized PCA category).42 In addition, the interim final rule revises the three current risk-based capital measures for four of the five PCA categories to reflect the interim final rule’s changes to the minimum riskbased capital ratios, as provided in revisions to the FDIC’s PCA regulations. All FDIC-supervised institutions will remain subject to leverage measure thresholds using the current leverage ratio in the form of tier 1 capital to average total consolidated assets. In addition, the interim final rule amends the PCA leverage measure for advanced approaches depository institutions to include the supplementary leverage ratio that explicitly applies to the ‘‘adequately capitalized’’ and ‘‘undercapitalized’’ capital categories. All insured depository institutions must comply with the revised PCA thresholds beginning on January 1, 55361 2015. Consistent with transition provisions in the proposed rules, the supplementary leverage measure for advanced approaches FDIC-supervised institutions that are insured depository institutions becomes effective on January 1, 2018. Changes to the definitions of the individual capital components that are used to calculate the relevant capital measures under PCA are governed by the transition arrangements discussed in section VIII.3 below. Thus, the changes to these definitions, including any deductions from or adjustments to regulatory capital, automatically flow through to the definitions in the PCA framework. Table 4 sets forth the risk-based capital and leverage ratio thresholds under the interim final rule for each of the PCA capital categories for all insured depository institutions. For each PCA category except critically undercapitalized, an insured depository institution must satisfy a minimum common equity tier 1 capital ratio, in addition to a minimum tier 1 risk-based capital ratio, total risk-based capital ratio, and leverage ratio. In addition to the aforementioned requirements, advanced approaches FDIC-supervised institutions that are insured depository institutions are also subject to a supplementary leverage ratio. TABLE 4—PCA LEVELS FOR ALL INSURED DEPOSITORY INSTITUTIONS PCA category Total risk-based Capital (RBC) measure (total RBC ratio) (percent) Tier 1 RBC measure (tier 1 RBC ratio) (percent) Common equity tier 1 RBC measure (common equity tier 1 RBC ratio) (percent) Well capitalized ...... ≥10 ...................... ≥8 ........................ Adequately-capitalized. Undercapitalized .... Significantly undercapitalized. ≥8 ........................ <8 ........................ <6 ........................ Critically undercapitalized. Leverage measure Leverage ratio (percent) Supplementary leverage ratio (percent)* ≥6.5 ..................... ≥5 ........................ Not applicable ..... ≥6 ........................ ≥4.5 ..................... ≥4 ........................ >3.0 ..................... Unchanged from current rule.* (*). <6 ........................ <4 ........................ <4.5 ..................... <3 ........................ <4 ........................ <3 ........................ <3.00 ................... Not applicable ..... (*). (*). Not applicable ..... (*). Tangible Equity (defined as tier 1 capital plus non-tier 1 perpetual preferred stock) to Total Assets ≤2 PCA requirements emcdonald on DSK67QTVN1PROD with RULES2 * The supplementary leverage ratio as a PCA requirement applies only to advanced approaches FDIC-supervised institutions that are insured depository institutions. The supplementary leverage ratio also applies to advanced approaches bank holding companies, although not in the form of a PCA requirement. To be well capitalized for purposes of the interim final rule, an insured depository institution must maintain a total risk-based capital ratio of 10 percent or more; a tier 1 capital ratio of 8 percent or more; a common equity tier 1 capital ratio of 6.5 percent or more; 42 12 and a leverage ratio of 5 percent or more. An adequately-capitalized depository institution must maintain a total risk-based capital ratio of 8 percent or more; a tier 1 capital ratio of 6 percent or more; a common equity tier 1 capital ratio of 4.5 percent or more; and a leverage ratio of 4 percent or more. An insured depository institution is undercapitalized under the interim final rule if its total capital ratio is less than 8 percent, if its tier 1 capital ratio is less than 6 percent, its common equity tier U.S.C. 1831o(c)(1)(B)(i). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55362 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 1 capital ratio is less than 4.5 percent, or its leverage ratio is less than 4 percent. If an institution’s tier 1 capital ratio is less than 4 percent, or its common equity tier 1 capital ratio is less than 3 percent, it would be considered significantly undercapitalized. The other numerical capital ratio thresholds for being significantly undercapitalized remain unchanged from the current rules.43 The determination of whether an insured depository institution is critically undercapitalized for PCA purposes is based on its ratio of tangible equity to total assets.44 This is a statutory requirement within the PCA framework, and the experience of the recent financial crisis has confirmed that tangible equity is of critical importance in assessing the viability of an insured depository institution. Tangible equity for PCA purposes is currently defined as including core capital elements, which consist of: (1) common stockholder’s equity, (2) qualifying noncumulative perpetual preferred stock (including related surplus), and (3) minority interest in the equity accounts of consolidated subsidiaries; plus outstanding cumulative preferred perpetual stock; minus all intangible assets except mortgage servicing rights to the extent permitted in tier 1 capital. The current PCA definition of tangible equity does not address the treatment of DTAs in determining whether an insured depository institution is critically undercapitalized. Consistent with the proposal, the interim final rule revises the calculation of the capital measure for the critically undercapitalized PCA category by revising the definition of tangible equity to consist of tier 1 capital, plus outstanding perpetual preferred stock (including related surplus) not included in tier 1 capital. The revised definition more appropriately aligns the calculation of tangible equity with the calculation of tier 1 capital generally for regulatory capital requirements. Assets 43 Under current PCA standards, in order to qualify as well-capitalized, an insured depository institution must not be subject to any written agreement, order, capital directive, or prompt corrective action directive issued by its primary Federal regulator pursuant to section 8 of the Federal Deposit Insurance Act, the International Lending Supervision Act of 1983, or section 38 of the Federal Deposit Insurance Act, or any regulation thereunder. See 12 CFR 325.103(b)(1)(iv) (state nonmember banks) and 12 CFR 390.453(b)(1)(iv) (state savings associations). The interim final rule does not change this requirement. 44 See 12 U.S.C. 1831o(c)(3)(A) and (B), which for purposes of the ‘‘critically undercapitalized’’ PCA category requires the ratio of tangible equity to total assets to be set at an amount ‘‘not less than 2 percent of total assets’’. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 included in an FDIC-supervised institution’s equity under GAAP, such as DTAs, are included in tangible equity only to the extent that they are included in tier 1 capital. The FDIC believes this modification promotes consistency and provides for clearer boundaries across and between the various PCA categories. G. Supervisory Assessment of Overall Capital Adequacy Capital helps to ensure that individual banking organizations can continue to serve as credit intermediaries even during times of stress, thereby promoting the safety and soundness of the overall U.S. banking system. The FDIC’s general risk-based capital rules indicate that the capital requirements are minimum standards generally based on broad credit-risk considerations.45 The risk-based capital ratios under these rules do not explicitly take account of the quality of individual asset portfolios or the range of other types of risk to which FDIC-supervised institutions may be exposed, such as interest-rate, liquidity, market, or operational risks.46 An FDIC-supervised institution is generally expected to have internal processes for assessing capital adequacy that reflect a full understanding of its risks and to ensure that it holds capital corresponding to those risks to maintain overall capital adequacy.47 The nature of such capital adequacy assessments should be commensurate with FDICsupervised institutions’ size, complexity, and risk-profile. Consistent with longstanding practice, supervisory assessment of capital adequacy will take account of whether an FDIC-supervised institution plans appropriately to maintain an adequate level of capital given its activities and risk profile, as well as risks and other factors that can affect an FDIC-supervised institution’s financial condition, including, for example, the level and severity of problem assets and its exposure to operational and interest rate risk, and significant asset concentrations. For this reason, a supervisory assessment of capital adequacy may differ significantly from conclusions that 45 See 12 CFR 325.3(a) (state nonmember banks) and 12 CFR 390.463 (state savings associations). 46 The risk-based capital ratios of an FDICsupervised institution subject to the market risk rule do include capital requirements for the market risk of covered positions, and the risk-based capital ratios calculated using advanced approaches total risk-weighted assets for an advanced approaches FDIC-supervised institution that has completed the parallel run process and received notification from the FDIC pursuant to section 324.121(d) do include a capital requirement for operational risks. 47 The Basel framework incorporates similar requirements under Pillar 2 of Basel II. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 might be drawn solely from the level of an FDIC-supervised institution’s regulatory capital ratios. In light of these considerations, as a prudential matter, an FDIC-supervised institution is generally expected to operate with capital positions well above the minimum risk-based ratios and to hold capital commensurate with the level and nature of the risks to which it is exposed, which may entail holding capital significantly above the minimum requirements. For example, FDIC-supervised institutions contemplating significant expansion proposals are expected to maintain strong capital levels substantially above the minimum ratios and should not allow significant diminution of financial strength below these strong levels to fund their expansion plans. FDICsupervised institutions with high levels of risk are also expected to operate even further above minimum standards. In addition to evaluating the appropriateness of an FDIC-supervised institution’s capital level given its overall risk profile, the supervisory assessment takes into account the quality and trends in an FDICsupervised institution’s capital composition, including the share of common and non-common-equity capital elements. Some commenters stated that they manage their capital so that they operate with a buffer over the minimum and that examiners expect such a buffer. These commenters expressed concern that examiners will expect even higher capital levels, such as a buffer in addition to the new higher minimums and capital conservation buffer (and countercyclical capital buffer, if applicable). Consistent with the longstanding approach employed by the FDIC in its supervision of FDICsupervised institutions, section 10(d) of the interim final rule maintains and reinforces supervisory expectations by requiring that an FDIC-supervised institution maintain capital commensurate with the level and nature of all risks to which it is exposed and that an FDIC-supervised institution have a process for assessing its overall capital adequacy in relation to its risk profile, as well as a comprehensive strategy for maintaining an appropriate level of capital. The supervisory evaluation of an FDIC-supervised institution’s capital adequacy, including compliance with section 10(d), may include such factors as whether the FDIC-supervised institution is newly chartered, entering new activities, or introducing new products. The assessment also would consider whether an FDIC-supervised E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations associations applies the advanced approaches rule, the FDIC is defining ‘‘tangible capital’’ as the amount of tier 1 capital plus the amount of outstanding perpetual preferred stock (including related surplus) not included in tier 1 capital.50 This definition is analogous to the definition of tangible capital adopted under the interim final rule for purposes of the PCA framework. The FDIC believes that this approach will reduce implementation burden associated with separate measures of tangible capital and is consistent with the purposes of HOLA and PCA. The FDIC notes that for purposes of the interim final rule, as of January 1, 2015, the term ‘‘total adjusted assets’’ in the definition of ‘‘state savings associations tangible capital ratio’’ has been replaced with the term ‘‘total assets.’’ The term total assets has the same definition as provided in the FDIC’s PCA rules.51 As a result of this change, which should further reduce implementation burden, state savings associations will no longer calculate the tangible equity ratio using period-end total assets. H. Tangible Capital Requirement for State Savings Associations State savings associations currently are required to maintain tangible capital in an amount not less than 1.5 percent of total assets.48 This statutory requirement is implemented under the FDIC’s current capital rules applicable to state savings associations.49 For purposes of the Basel III NPR, the FDIC also proposed to include a tangible capital requirement for state savings associations. The FDIC received no comments on this aspect of the proposal. Concerning state savings associations, the FDIC does not believe that a unique regulatory definition of ‘‘tangible capital’’ is necessary for purposes of implementing HOLA. Accordingly, for purposes of the interim final rule, as of January 1, 2014 or January 1, 2015 depending on whether the state savings emcdonald on DSK67QTVN1PROD with RULES2 institution is receiving special supervisory attention, has or is expected to have losses resulting in capital inadequacy, has significant exposure due to risks from concentrations in credit or nontraditional activities, or has significant exposure to interest rate risk, operational risk, or could be adversely affected by the activities or condition of an FDIC-supervised institution’s holding company or other affiliates. Supervisors also evaluate the comprehensiveness and effectiveness of an FDIC-supervised institution’s capital planning in light of its activities and capital levels. An effective capital planning process involves an assessment of the risks to which an FDIC-supervised institution is exposed and its processes for managing and mitigating those risks, an evaluation of its capital adequacy relative to its risks, and consideration of the potential impact on its earnings and capital base from current and prospective economic conditions. While the elements of supervisory review of capital adequacy would be similar across FDICsupervised institutions, evaluation of the level of sophistication of an individual FDIC-supervised institution’s capital adequacy process would be commensurate with the FDICsupervised institution’s size, sophistication, and risk profile, similar to the current supervisory practice. Under the proposed rule, common equity tier 1 capital was defined as the sum of a banking organization’s outstanding common equity tier 1 capital instruments that satisfy the criteria set forth in section 20(b) of the proposal, related surplus (net of treasury stock), retained earnings, AOCI, and common equity tier 1 minority interest subject to certain limitations, minus regulatory adjustments and deductions. The proposed rule set forth a list of criteria that an instrument would be required to meet to be included in common equity tier 1 capital. The proposed criteria were designed to ensure that common equity tier 1 capital instruments do not possess features that would cause a banking organization’s condition to further weaken during periods of economic and market stress. In the proposals, the agencies indicated that they believe most existing common stock instruments issued by U.S. banking organizations already would satisfy the proposed criteria. 48 Tangible capital is defined in section 5(t)(9)(B) of HOLA to mean ‘‘core capital minus any intangible assets (as intangible assets are defined by the OCC for national banks).’’ 12 U.S.C. 1464(t)(9)(B). Core capital means ‘‘core capital as defined by the OCC for national banks, less unidentifiable intangible assets’’, unless the OCC prescribes a more stringent definition. 12 U.S.C. 1464(t)(9)(A). 49 12 CFR 390.468. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 V. Definition of Capital A. Capital Components and Eligibility Criteria for Regulatory Capital Instruments 1. Common Equity Tier 1 Capital 50 Until January 1, 2014 or January 1, 2015 depending on whether the state savings association applies the advanced approaches rule, the state savings association shall determine its tangible capital ratio as provided under 12 CFR 390.468. 51 See 12 CFR 324.401(g). PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 55363 The proposed criteria also applied to instruments issued by banking organizations such as mutual banking organizations where ownership of the organization is not freely transferable or evidenced by certificates of ownership or stock. For these entities, the proposal provided that instruments issued by such organizations would be considered common equity tier 1 capital if they are fully equivalent to common stock instruments in terms of their subordination and availability to absorb losses, and do not possess features that could cause the condition of the organization to weaken as a going concern during periods of market stress. The agencies noted in the proposal that stockholders’ voting rights generally are a valuable corporate governance tool that permits parties with an economic interest to participate in the decision-making process through votes on establishing corporate objectives and policy, and in electing the banking organization’s board of directors. Therefore, the agencies believe that voting common stockholders’ equity (net of the adjustments to and deductions from common equity tier 1 capital proposed under the rule) should be the dominant element within common equity tier 1 capital. The proposal also provided that to the extent that a banking organization issues non-voting common stock or common stock with limited voting rights, the underlying stock must be identical to those underlying the banking organization’s voting common stock in all respects except for any limitations on voting rights. To ensure that a banking organization’s common equity tier 1 capital would be available to absorb losses as they occur, the proposed rule would have required common equity tier 1 capital instruments issued by a banking organization to satisfy the following criteria: (1) The instrument is paid-in, issued directly by the banking organization, and represents the most subordinated claim in a receivership, insolvency, liquidation, or similar proceeding of the banking organization. (2) The holder of the instrument is entitled to a claim on the residual assets of the banking organization that is proportional with the holder’s share of the banking organization’s issued capital after all senior claims have been satisfied in a receivership, insolvency, liquidation, or similar proceeding. That is, the holder has an unlimited and variable claim, not a fixed or capped claim. (3) The instrument has no maturity date, can only be redeemed via E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55364 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations discretionary repurchases with the prior approval of the banking organization’s primary Federal supervisor, and does not contain any term or feature that creates an incentive to redeem. (4) The banking organization did not create at issuance of the instrument, through any action or communication, an expectation that it will buy back, cancel, or redeem the instrument, and the instrument does not include any term or feature that might give rise to such an expectation. (5) Any cash dividend payments on the instrument are paid out of the banking organization’s net income and retained earnings and are not subject to a limit imposed by the contractual terms governing the instrument. (6) The banking organization has full discretion at all times to refrain from paying any dividends and making any other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of any other restrictions on the banking organization. (7) Dividend payments and any other capital distributions on the instrument may be paid only after all legal and contractual obligations of the banking organization have been satisfied, including payments due on more senior claims. (8) The holders of the instrument bear losses as they occur equally, proportionately, and simultaneously with the holders of all other common stock instruments before any losses are borne by holders of claims on the banking organization with greater priority in a receivership, insolvency, liquidation, or similar proceeding. (9) The paid-in amount is classified as equity under GAAP. (10) The banking organization, or an entity that the banking organization controls, did not purchase or directly or indirectly fund the purchase of the instrument. (11) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and is not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (12) The instrument has been issued in accordance with applicable laws and regulations. In most cases, the agencies understand that the issuance of these instruments would require the approval of the board of directors of the banking organization or, where applicable, of the banking organization’s shareholders or of other persons duly authorized by the banking organization’s shareholders. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (13) The instrument is reported on the banking organization’s regulatory financial statements separately from other capital instruments. The agencies requested comment on the proposed criteria for inclusion in common equity tier 1, and specifically on whether any of the criteria would be problematic, given the main characteristics of existing outstanding common stock instruments. A substantial number of comments addressed the criteria for common equity tier 1 capital. Generally, commenters stated that the proposed criteria could prevent some instruments currently included in tier 1 capital from being included in the new common equity tier 1 capital measure. Commenters stated that this could create complicated and unnecessary burden for banking organizations that either would have to raise capital to meet the common equity tier 1 capital requirement or shrink their balance sheets by selling off or winding down assets and exposures. Many commenters stated that the burden of raising new capital would have the effect of reducing lending overall, and that it would be especially acute for smaller banking organizations that have limited access to capital markets. Many commenters asked the agencies to clarify several aspects of the proposed criteria. For instance, a few commenters asked the agencies to clarify the proposed requirement that a common equity tier 1 capital instrument be redeemed only with prior approval by a banking organization’s primary Federal supervisor. These commenters asked if this criterion would require a banking organization to note this restriction on the face of a regulatory capital instrument that it may be redeemed only with the prior approval of the banking organization’s primary Federal supervisor. The FDIC notes that the requirement that common equity tier 1 capital instruments be redeemed only with prior agency approval is consistent with the FDIC’s rules and federal law, which generally provide that an FDICsupervised institution may not reduce its capital by redeeming capital instruments without receiving prior approval from the FDIC.52 The interim final rule does not obligate the FDICsupervised institution to include this restriction explicitly in the common equity tier 1 capital instrument’s documentation. However, regardless of whether the instrument documentation states that its redemption is subject to 52 See 12 CFR 303.241 (state nonmember banks) and 12 CFR 390.345 (state savings associations). PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 FDIC approval, the FDIC-supervised institution must receive prior approval before redeeming such instruments. The FDIC believes that the approval requirement is appropriate as it provides for the monitoring of the strength of an FDIC-supervised institution’s capital position, and therefore, have retained the proposed requirement in the interim final rule. Several commenters also expressed concern about the proposed requirement that dividend payments and any other distributions on a common equity tier 1 capital instrument may be paid only after all legal and contractual obligations of the banking organization have been satisfied, including payments due on more senior claims. Commenters stated that, as proposed, this requirement could be construed to prevent a banking organization from paying a dividend on a common equity tier 1 capital instrument because of obligations that have not yet become due or because of immaterial delays in paying trade creditors 53 for obligations incurred in the ordinary course of business. The FDIC notes that this criterion should not prevent an FDIC-supervised institution from paying a dividend on a common equity tier 1 capital instrument where it has incurred operational obligations in the normal course of business that are not yet due or that are subject to minor delays for reasons unrelated to the financial condition of the FDIC-supervised institution, such as delays related to contractual or other legal disputes. A number of commenters also suggested that the proposed criteria providing that dividend payments may be paid only out of current and retained earnings potentially could conflict with state corporate law, including Delaware state law. According to these commenters, Delaware state law permits a corporation to make dividend payments out of its capital surplus account, even when the organization does not have current or retained earnings. The FDIC observes that requiring that dividends be paid only out of net income and retained earnings is consistent with federal law and the existing regulations applicable to insured depository institutions. Under applicable statutes and regulations this aspect of the proposal did not include any substantive changes from the 53 Trade creditors, for this purpose, would include counterparties with whom the banking organization contracts to procure office space and/ or supplies as well as basic services, such as building maintenance. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations general risk-based capital rules.54 With respect to FDIC-supervised institutions, prior supervisory approval is required to make a distribution that involves a reduction or retirement of capital stock. Under FDIC’s general risk-based capital rules, a state nonmember bank is prohibited from paying a dividend that reduces the amount of its common or preferred capital stock (which includes any surplus), or retiring any part of its capital notes or debentures without prior approval from the FDIC. Finally, several commenters expressed concerns about the potential impact of the proposed criteria on stock issued as part of certain employee stock ownership plans (ESOPs) (as defined under Employee Retirement Income Security Act of 1974 55 (ERISA) regulations at 29 CFR 2550.407d–6). Under the proposed rule, an instrument would not be included in common equity tier 1 capital if the banking organization creates an expectation that it will buy back, cancel, or redeem the instrument, or if the instrument includes any term or feature that might give rise to such an expectation. Additionally, the criteria would prevent a banking organization from including in common equity tier 1 capital any instrument that is subject to any type of arrangement that legally or economically enhances the seniority of the instrument. Commenters noted that under ERISA, stock that is not publicly traded and issued as part of an ESOP must include a ‘‘put option’’ that requires the company to repurchase the stock. By exercising the put option, an employee can redeem the stock instrument upon termination of employment. Commenters noted that this put option clearly creates an expectation that the instrument will be redeemed and arguably enhances the seniority of the instrument. Therefore, the commenters stated that the put option could prevent a privately-held banking organization from including earned ESOP shares in its common equity tier 1 capital. The FDIC does not believe that an ERISA-mandated put option should prohibit ESOP shares from being included in common equity tier 1 capital. Therefore, under the interim final rule, shares issued under an ESOP by an FDIC-supervised institution that is not publicly-traded are exempt from the criteria that the shares can be redeemed only via discretionary repurchases and are not subject to any other arrangement 54 12 U.S.C. 1828(i), 12 CFR 303.241 (state nonmember banks), and 12 CFR 390.345 (state savings associations). 55 29 U.S.C. 1002, et seq. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 that legally or economically enhances their seniority, and that the FDICsupervised institution not create an expectation that the shares will be redeemed. In addition to the concerns described above, because stock held in an ESOP is awarded by a banking organization for the retirement benefit of its employees, some commenters expressed concern that such stock may not conform to the criterion prohibiting a banking organization from directly or indirectly funding a capital instrument. Because the FDIC believes that an FDICsupervised institution should have the flexibility to provide an ESOP as a benefit for its employees, the interim final rule provides that ESOP stock does not violate such criterion. Under the interim final rule, an FDIC-supervised institution’s common stock held in trust for the benefit of employees as part of an ESOP in accordance with both ERISA and ERISA-related U.S. tax code requirements will qualify for inclusion as common equity tier 1 capital only to the extent that the instrument is includable as equity under GAAP and that it meets all other criteria of section 20(b)(1) of the interim final rule. Stock instruments held by an ESOP that are unawarded or unearned by employees or reported as ‘‘temporary equity’’ under GAAP (in the case of U.S. Securities and Exchange Commission (SEC) registrants), may not be counted as equity under GAAP and therefore may not be included in common equity tier 1 capital. After reviewing the comments received, the FDIC has decided to finalize the proposed criteria for common equity tier 1 capital instruments, modified as discussed above. Although it is possible some currently outstanding common equity instruments may not meet the common equity tier 1 capital criteria, the FDIC believes that most common equity instruments that are currently eligible for inclusion in FDIC-supervised institutions’ tier 1 capital meet the common equity tier 1 capital criteria, and have not received information that would support a different conclusion. The FDIC therefore believes that most FDIC-supervised institutions will not be required to reissue common equity instruments in order to comply with the final common equity tier 1 capital criteria. The final revised criteria for inclusion in common equity tier 1 capital are set forth in section 324.20(b)(1) of the interim final rule. 2. Additional Tier 1 Capital Consistent with Basel III, the agencies proposed that additional tier 1 capital would equal the sum of: Additional tier PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 55365 1 capital instruments that satisfy the criteria set forth in section 20(c) of the proposal, related surplus, and any tier 1 minority interest that is not included in a banking organization’s common equity tier 1 capital (subject to the proposed limitations on minority interest), less applicable regulatory adjustments and deductions. The agencies proposed the following criteria for additional tier 1 capital instruments in section 20(c): (1) The instrument is issued and paidin. (2) The instrument is subordinated to depositors, general creditors, and subordinated debt holders of the banking organization in a receivership, insolvency, liquidation, or similar proceeding. (3) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (4) The instrument has no maturity date and does not contain a dividend step-up or any other term or feature that creates an incentive to redeem. (5) If callable by its terms, the instrument may be called by the banking organization only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called earlier than five years upon the occurrence of a regulatory event (as defined in the agreement governing the instrument) that precludes the instrument from being included in additional tier 1 capital or a tax event. In addition: (i) The banking organization must receive prior approval from its primary Federal supervisor to exercise a call option on the instrument. (ii) The banking organization does not create at issuance of the instrument, through any action or communication, an expectation that the call option will be exercised. (iii) Prior to exercising the call option, or immediately thereafter, the banking organization must either: (A) Replace the instrument to be called with an equal amount of instruments that meet the criteria under section 20(b) or (c) of the proposed rule (replacement can be concurrent with redemption of existing additional tier 1 capital instruments); or (B) Demonstrate to the satisfaction of its primary Federal supervisor that following redemption, the banking organization will continue to hold capital commensurate with its risk. (6) Redemption or repurchase of the instrument requires prior approval from E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55366 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations the banking organization’s primary Federal supervisor. (7) The banking organization has full discretion at all times to cancel dividends or other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of other restrictions on the banking organization except in relation to any capital distributions to holders of common stock. (8) Any capital distributions on the instrument are paid out of the banking organization’s net income and retained earnings. (9) The instrument does not have a credit-sensitive feature, such as a dividend rate that is reset periodically based in whole or in part on the banking organization’s credit quality, but may have a dividend rate that is adjusted periodically independent of the banking organization’s credit quality, in relation to general market interest rates or similar adjustments. (10) The paid-in amount is classified as equity under GAAP. (11) The banking organization, or an entity that the banking organization controls, did not purchase or directly or indirectly fund the purchase of the instrument. (12) The instrument does not have any features that would limit or discourage additional issuance of capital by the banking organization, such as provisions that require the banking organization to compensate holders of the instrument if a new instrument is issued at a lower price during a specified time frame. (13) If the instrument is not issued directly by the banking organization or by a subsidiary of the banking organization that is an operating entity, the only asset of the issuing entity is its investment in the capital of the banking organization, and proceeds must be immediately available without limitation to the banking organization or to the banking organization’s top-tier holding company in a form which meets or exceeds all of the other criteria for additional tier 1 capital instruments.56 (14) For an advanced approaches banking organization, the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013, must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the banking organization enters into a receivership, insolvency, liquidation, or similar proceeding. 56 De minimis assets related to the operation of the issuing entity could be disregarded for purposes of this criterion. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 The proposed criteria were designed to ensure that additional tier 1 capital instruments would be available to absorb losses on a going-concern basis. TruPS and cumulative perpetual preferred securities, which are eligible for limited inclusion in tier 1 capital under the general risk-based capital rules for bank holding companies, generally would not qualify for inclusion in additional tier 1 capital.57 As explained in the proposal, the agencies believe that instruments that allow for the accumulation of interest payable, like cumulative preferred securities, are not likely to absorb losses to the degree appropriate for inclusion in tier 1 capital. In addition, the exclusion of these instruments from the tier 1 capital of depository institution holding companies would be consistent with section 171 of the Dodd-Frank Act. The agencies noted in the proposal that under Basel III, instruments classified as liabilities for accounting purposes could potentially be included in additional tier 1 capital. However, the agencies proposed that an instrument classified as a liability under GAAP could not qualify as additional tier 1 capital, reflecting the agencies’ view that allowing only instruments classified as equity under GAAP in tier 1 capital helps strengthen the lossabsorption capabilities of additional tier 1 capital instruments, thereby increasing the quality of the capital base of U.S. banking organizations. The agencies also proposed to allow banking organizations to include in additional tier 1 capital instruments that were: (1) Issued under the Small Business Jobs Act of 2010 58 or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008,59 and (2) included in tier 1 capital under the agencies’ general risk-based capital rules. Under the proposal, these instruments would be included in tier 1 capital regardless of whether they satisfied the proposed qualifying criteria for common equity tier 1 or additional tier 1 capital. The agencies explained in the proposal that continuing to permit these instruments to be included in tier 1 capital is important to promote financial recovery and stability following the recent financial crisis.60 A number of commenters addressed the proposed criteria for additional tier 1 capital. Consistent with comments on the criteria for common equity tier 1 57 See 12 CFR part 225, appendix A, section II.A.1. 58 Public Law 111–240, 124 Stat. 2504 (2010). 59 Public Law 110–343, 122 Stat. 3765 (October 3, 2008). 60 See, e.g., 73 FR 43982 (July 29, 2008); see also 76 FR 35959 (June 21, 2011). PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 capital, commenters generally argued that imposing new restrictions on qualifying regulatory capital instruments would be burdensome for many banking organizations that would be required to raise additional capital or to shrink their balance sheets to phase out existing regulatory capital instruments that no longer qualify as regulatory capital under the proposed rule. With respect to the proposed criteria, commenters requested that the agencies make a number of changes and clarifications. Specifically, commenters asked the agencies to clarify the use of the term ‘‘secured’’ in criterion (3) above. In this context, a ‘‘secured’’ instrument is an instrument that is backed by collateral. In order to qualify as additional tier 1 capital, an instrument may not be collateralized, guaranteed by the issuing organization or an affiliate of the issuing organization, or subject to any other arrangement that legally or economically enhances the seniority of the instrument relative to more senior claims. Instruments backed by collateral, guarantees, or other arrangements that affect their seniority are less able to absorb losses than instruments without such enhancements. Therefore, instruments secured by collateral, guarantees, or other enhancements would not be included in additional tier 1 capital under the proposal. The FDIC has adopted this criterion as proposed. Commenters also asked the agencies to clarify whether terms allowing a banking organization to convert a fixedrate instrument to a floating rate in combination with a call option, without any increase in credit spread, would constitute an ‘‘incentive to redeem’’ under criterion (4). The FDIC does not consider the conversion from a fixed rate to a floating rate (or from a floating rate to a fixed rate) in combination with a call option without any increase in credit spread to constitute an ‘‘incentive to redeem’’ for purposes of this criterion. More specifically, a call option combined with a change in reference rate where the credit spread over the second reference rate is equal to or less than the initial dividend rate less the swap rate (that is, the fixed rate paid to the call date to receive the second reference rate) would not be considered an incentive to redeem. For example, if the initial reference rate is 0.9 percent, the credit spread over the initial reference rate is 2 percent (that is, the initial dividend rate is 2.9 percent), and the swap rate to the call date is 1.2 percent, a credit spread over the second reference rate greater than 1.7 percent E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (2.9 percent minus 1.2 percent) would be considered an incentive to redeem. The FDIC believes that the clarification above should address the commenters’ concerns, and the FDIC is retaining this criterion in the interim final rule as proposed. Several commenters noted that the proposed requirement that a banking organization seek prior approval from its primary Federal supervisor before exercising a call option is redundant with the existing requirement that a banking organization seek prior approval before reducing regulatory capital by redeeming a capital instrument. The FDIC believes that the proposed requirement clarifies existing requirements and does not add any new substantive restrictions or burdens. Including this criterion also helps to ensure that the regulatory capital rules provide FDIC-supervised institutions a complete list of the requirements applicable to regulatory capital instruments in one location. Accordingly, the FDIC has retained this requirement in the interim final rule. Banking industry commenters also asserted that some of the proposed criteria could have an adverse impact on ESOPs. Specifically, the commenters noted that the proposed requirement that instruments not be callable for at least five years after issuance could be problematic for compensation plans that enable a company to redeem shares after employment is terminated. Commenters asked the agencies to exempt from this requirement stock issued as part of an ESOP. For the reasons stated above in the discussion of common equity tier 1 capital instruments, under the interim final rule, additional tier 1 instruments issued under an ESOP by an FDICsupervised institution that is not publicly traded are exempt from the criterion that additional tier 1 instruments not be callable for at least five years after issuance. Moreover, similar to the discussion above regarding the criteria for common equity tier 1 capital, the FDIC believes that required compliance with ERISA and ERISA-related tax code requirements alone should not prevent an instrument from being included in regulatory capital. Therefore, the FDIC is including a provision in the interim final rule to clarify that the criterion prohibiting an FDIC-supervised institution from directly or indirectly funding a capital instrument, the criterion prohibiting a capital instrument from being covered by a guarantee of the FDIC-supervised institution or from being subject to an arrangement that enhances the seniority of the instrument, and the criterion pertaining to the creation of an VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 expectation that the instrument will be redeemed, shall not prevent an instrument issued by a non-publicly traded FDIC-supervised institution as part of an ESOP from being included in additional tier 1 capital. In addition, capital instruments held by an ESOP trust that are unawarded or unearned by employees or reported as ‘‘temporary equity’’ under GAAP (in the case of U.S. SEC registrants) may not be counted as equity under GAAP and therefore may not be included in additional tier 1 capital. Commenters also asked the agencies to add exceptions for early calls within five years of issuance in the case of an ‘‘investment company event’’ or a ‘‘rating agency event,’’ in addition to the proposed exceptions for regulatory and tax events. After considering the comments on these issues, the FDIC has decided to revise the interim final rule to permit an FDIC-supervised institution to call an instrument prior to five years after issuance in the event that the issuing entity is required to register as an investment company pursuant to the Investment Company Act of 1940.61 The FDIC recognizes that the legal and regulatory burdens of becoming an investment company could make it uneconomic to leave some structured capital instruments outstanding, and thus would permit the FDIC-supervised institution to call such instruments early. In order to ensure the loss-absorption capacity of additional tier 1 capital instruments, the FDIC has decided not to revise the rule to permit an FDICsupervised institution to include in its additional tier 1 capital instruments issued on or after the effective date of the interim final rule that may be called prior to five years after issuance upon the occurrence of a rating agency event. However, understanding that many currently outstanding instruments have this feature, the FDIC has decided to revise the rule to allow an instrument that may be called prior to five years after its issuance upon the occurrence of a rating agency event to be included into additional tier 1 capital, provided that (i) the instrument was issued and included in an FDIC-supervised institution’s tier 1 capital prior to the effective date of the rule, and (ii) that such instrument meets all other criteria for additional tier 1 capital instruments under the interim final rule. In addition, a number of commenters reiterated the concern that restrictions on the payment of dividends from net income and current and retained earnings may conflict with state 61 15 PO 00000 U.S.C. 80 a–1 et seq. Frm 00029 Fmt 4701 Sfmt 4700 55367 corporate laws that permit an organization to issue dividend payments from its capital surplus accounts. This criterion for additional tier 1 capital in the interim final rule reflects the identical final criterion for common equity tier 1 for the reasons discussed above with respect to common equity tier 1 capital. Commenters also noted that proposed criterion (10), which requires the paidin amounts of tier 1 capital instruments to be classified as equity under GAAP before they may be included in regulatory capital, generally would prevent contingent capital instruments, which are classified as liabilities, from qualifying as additional tier 1 capital. These commenters asked the agencies to revise the rules to provide that contingent capital instruments will qualify as additional tier 1 capital, regardless of their treatment under GAAP. Another commenter noted the challenges for U.S. banking organizations in devising contingent capital instruments that would satisfy the proposed criteria, and noted that if U.S. banking organizations develop an acceptable instrument, the instrument likely would initially be classified as debt instead of equity for GAAP purposes. Thus, in order to accommodate this possibility, the commenter urged the agencies to revise the criterion to allow the agencies to permit such an instrument in additional tier 1 capital through interpretive guidance or specifically in the case of a particular instrument. The FDIC continues to believe that restricting tier 1 capital instruments to those classified as equity under GAAP will help to ensure those instruments’ capacity to absorb losses and further increase the quality of U.S. FDICsupervised institutions’ regulatory capital. The FDIC therefore has decided to retain this aspect of the proposal. To the extent that a contingent capital instrument is considered a liability under GAAP, an FDIC-supervised institution may not include the instrument in its tier 1 capital under the interim final rule. At such time as an instrument converts from debt to equity under GAAP, the instrument would then satisfy this criterion. In the preamble to the proposed rule, the agencies included a discussion regarding whether criterion (7) should be revised to require banking organizations to reduce the dividend payment on tier 1 capital instruments to a penny when a banking organization reduces dividend payments on a common equity tier 1 capital instrument to a penny per share. Such a revision would increase the capacity of E:\FR\FM\10SER2.SGM 10SER2 55368 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 additional tier 1 instruments to absorb losses as it would permit a banking organization to reduce its capital distributions on additional tier 1 instruments without eliminating entirely its common stock dividend. Commenters asserted that such a revision would be unnecessary and could affect the hierarchy of subordination in capital instruments. Commenters also claimed the revision could prove burdensome as it could substantially increase the cost of raising capital through additional tier 1 capital instruments. In light of these comments the FDIC has decided to not modify criterion (7) to accommodate the issuance of a penny dividend as discussed in the proposal. Several commenters expressed concern that criterion (7) for additional tier 1 capital, could affect the tier 1 eligibility of existing noncumulative perpetual preferred stock. Specifically, the commenters were concerned that such a criterion would disallow contractual terms of an additional tier 1 capital instrument that restrict payment of dividends on another capital instrument that is pari passu in liquidation with the additional tier 1 capital instrument (commonly referred to as dividend stoppers). Consistent with Basel III, the FDIC agrees that restrictions related to capital distributions to holders of common stock instruments and holders of other capital instruments that are pari passu in liquidation with such additional tier 1 capital instruments are acceptable, and have amended this criterion accordingly for purposes of the interim final rule. After considering the comments on the proposal, the FDIC has decided to finalize the criteria for additional tier 1 capital instruments with the modifications discussed above. The final revised criteria for additional tier 1 capital are set forth in section 324.20(c)(1) of the interim final rule. The FDIC expects that most outstanding noncumulative perpetual preferred stock that qualifies as tier 1 capital under the FDIC’s general risk-based capital rules will qualify as additional tier 1 capital under the interim final rule. 3. Tier 2 Capital Consistent with Basel III, under the proposed rule, tier 2 capital would equal the sum of: tier 2 capital instruments that satisfy the criteria set forth in section 20(d) of the proposal, related surplus, total capital minority interest not included in a banking organization’s tier 1 capital (subject to certain limitations and requirements), VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 and limited amounts of the allowance for loan and lease losses (ALLL) less any applicable regulatory adjustments and deductions. Consistent with the general risk-based capital rules, when calculating its total capital ratio using the standardized approach, a banking organization would be permitted to include in tier 2 capital the amount of ALLL that does not exceed 1.25 percent of its standardized total risk-weighted assets which would not include any amount of the ALLL. A banking organization subject to the market risk rule would exclude its standardized market risk-weighted assets from the calculation.62 In contrast, when calculating its total capital ratio using the advanced approaches, a banking organization would be permitted to include in tier 2 capital the excess of its eligible credit reserves over its total expected credit loss, provided the amount does not exceed 0.6 percent of its credit risk-weighted assets. Consistent with Basel III, the agencies proposed the following criteria for tier 2 capital instruments: (1) The instrument is issued and paidin. (2) The instrument is subordinated to depositors and general creditors of the banking organization. (3) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument in relation to more senior claims. (4) The instrument has a minimum original maturity of at least five years. At the beginning of each of the last five years of the life of the instrument, the amount that is eligible to be included in tier 2 capital is reduced by 20 percent of the original amount of the instrument (net of redemptions) and is excluded from regulatory capital when remaining maturity is less than one year. In addition, the instrument must not have any terms or features that require, or create significant incentives for, the banking organization to redeem the instrument prior to maturity. (5) The instrument, by its terms, may be called by the banking organization only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called sooner upon the occurrence of an event that would preclude the 62 A banking organization would deduct the amount of ALLL in excess of the amount permitted to be included in tier 2 capital, as well as allocated transfer risk reserves, from its standardized total risk-weighted risk assets. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 instrument from being included in tier 2 capital, or a tax event. In addition: (i) The banking organization must receive the prior approval of its primary Federal supervisor to exercise a call option on the instrument. (ii) The banking organization does not create at issuance, through action or communication, an expectation the call option will be exercised. (iii) Prior to exercising the call option, or immediately thereafter, the banking organization must either: (A) Replace any amount called with an equivalent amount of an instrument that meets the criteria for regulatory capital under section 20 of the proposed rule; 63 or (B) Demonstrate to the satisfaction of the banking organization’s primary Federal supervisor that following redemption, the banking organization would continue to hold an amount of capital that is commensurate with its risk. (6) The holder of the instrument must have no contractual right to accelerate payment of principal or interest on the instrument, except in the event of a receivership, insolvency, liquidation, or similar proceeding of the banking organization. (7) The instrument has no creditsensitive feature, such as a dividend or interest rate that is reset periodically based in whole or in part on the banking organization’s credit standing, but may have a dividend rate that is adjusted periodically independent of the banking organization’s credit standing, in relation to general market interest rates or similar adjustments. (8) The banking organization, or an entity that the banking organization controls, has not purchased and has not directly or indirectly funded the purchase of the instrument. (9) If the instrument is not issued directly by the banking organization or by a subsidiary of the banking organization that is an operating entity, the only asset of the issuing entity is its investment in the capital of the banking organization, and proceeds must be immediately available without limitation to the banking organization or the banking organization’s top-tier holding company in a form that meets or exceeds all the other criteria for tier 2 capital instruments under this section.64 (10) Redemption of the instrument prior to maturity or repurchase requires 63 Replacement of tier 2 capital instruments can be concurrent with redemption of existing tier 2 capital instruments. 64 De minimis assets related to the operation of the issuing entity can be disregarded for purposes of this criterion. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations the prior approval of the banking organization’s primary Federal supervisor. (11) For an advanced approaches banking organization, the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013, must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the banking organization enters into a receivership, insolvency, liquidation, or similar proceeding. The agencies also proposed to eliminate the inclusion of a portion of certain unrealized gains on AFS equity securities in tier 2 capital given that unrealized gains and losses on AFS securities would flow through to common equity tier 1 capital under the proposed rules. As a result of the proposed new minimum common equity tier 1 capital requirement, higher tier 1 capital requirement, and the broader goal of simplifying the definition of tier 2 capital, the proposal eliminated the existing limitations on the amount of tier 2 capital that could be recognized in total capital, as well as the existing limitations on the amount of certain capital instruments (that is, term subordinated debt) that could be included in tier 2 capital. Finally, the agencies proposed to allow an instrument that qualified as tier 2 capital under the general riskbased capital rules and that was issued under the Small Business Jobs Act of 2010,65 or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008, to continue to be includable in tier 2 capital regardless of whether it met all of the proposed qualifying criteria. Several commenters addressed the proposed eligibility criteria for tier 2 capital. A few banking industry commenters asked the agencies to clarify criterion (2) above to provide that trade creditors are not among the class of senior creditors whose claims rank ahead of subordinated debt holders. In response to these comments, the FDIC notes that the intent of the final rule, with its requirement that tier 2 capital instruments be subordinated to depositors and general creditors, is to effectively retain the subordination standards for the tier 2 capital subordinated debt under the general risk-based capital rules. Therefore, the FDIC is clarifying that under the interim final rule, and consistent with the FDIC’s general risk-based capital rules, subordinated debt instruments that 65 Public Law 111–240, 124 Stat. 2504 (2010). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 qualify as tier 2 capital must be subordinated to general creditors, which generally means senior indebtedness, excluding trade creditors. Such creditors include at a minimum all borrowed money, similar obligations arising from off-balance sheet guarantees and direct-credit substitutes, and obligations associated with derivative products such as interest rate and foreign-exchange contracts, commodity contracts, and similar arrangements, and, in addition, for depository institutions, depositors. In addition, one commenter noted that while many existing banking organizations’ subordinated debt indentures contain subordination provisions, they may not explicitly include a subordination provision with respect to ‘‘general creditors’’ of the banking organization. Thus, they recommended that this aspect of the rules be modified to have only prospective application. The FDIC notes that if it is clear from an instrument’s governing agreement, offering circular, or prospectus, that the instrument is subordinated to general creditors despite not specifically stating ‘‘general creditors,’’ criterion (2) above is satisfied (that is, criterion (2) should not be read to mean that the phrase ‘‘general creditors’’ must appear in the instrument’s governing agreement, offering circular, or prospectus, as the case may be). One commenter also asked whether a debt instrument that automatically converts to an equity instrument within five years of issuance, and that satisfies all criteria for tier 2 instruments other than the five-year maturity requirement, would qualify as tier 2 capital. The FDIC notes that because such an instrument would automatically convert to a permanent form of regulatory capital, the five-year maturity requirement would not apply and, thus, it would qualify as tier 2 capital. The FDIC has clarified the interim final rule in this respect. Commenters also expressed concern about the impact of a number of the proposed criteria on outstanding TruPS. For example, commenters stated that a strict reading of criterion (3) above could exclude certain TruPS under which the banking organization guarantees that any payments made by the banking organization to the trust will be used by the trust to pay its obligations to security holders. However, the proposed rule would not have disqualified an instrument with this type of guarantee, which does not enhance or otherwise alter the subordination level of an instrument. Additionally, the commenters asked the PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 55369 agencies to allow in tier 2 capital instruments that provide for default and the acceleration of principal and interest if the issuer banking organization defers interest payments for five consecutive years. Commenters stated that these exceptions would be necessary to accommodate existing TruPS, which generally include such call, default and acceleration features. Commenters also asked the agencies to clarify the use of the term ‘‘secured’’ in criterion (3). As discussed above with respect to the criteria for additional tier 1 capital, a ‘‘secured’’ instrument is an instrument where payments on the instrument are secured by collateral. Therefore, under criterion (3), a collateralized instrument will not qualify as tier 2 capital. Instruments secured by collateral are less able to absorb losses than instruments without such enhancement. With respect to subordinated debt instruments included in tier 2 capital, a commenter recommended eliminating criterion (4)’s proposed five-year amortization requirement, arguing that that it was unnecessary given other capital planning requirements that banking organizations must satisfy. The FDIC declined to adopt the commenter’s recommendation, as it believes that the proposed amortization schedule results in a more accurate reflection of the lossabsorbency of an FDIC-supervised institution’s tier 2 capital. The FDIC notes that if an FDIC-supervised institution begins deferring interest payments on a TruPS instrument included in tier 2 capital, such an instrument will be treated as having a maturity of five years at that point and the FDIC-supervised institution must begin excluding the appropriate amount of the instrument from capital in accordance with section 324.20(d)(1)(iv) of the interim final rule. Similar to the comments received on the criteria for additional tier 1 capital, commenters asked the agencies to add exceptions to the prohibition against call options that could be exercised within five years of the issuance of a capital instrument, specifically for an ‘‘investment company event’’ and a ‘‘rating agency event.’’ Although the FDIC declined to permit instruments that include acceleration provisions in tier 2 capital in the interim final rule, the FDIC believes that the inclusion in tier 2 capital of existing TruPS, which allow for acceleration after five years of interest deferral, does not raise safety and soundness concerns. Although the majority of existing TruPS would not technically comply with the interim final rule’s tier 2 eligibility criteria, the FDIC acknowledges that the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55370 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations inclusion of existing TruPS in tier 2 capital (until they are redeemed or they mature) would benefit certain FDICsupervised institutions until they are able to replace such instruments with new capital instruments that fully comply with the eligibility criteria of the interim final rule. As with additional tier 1 capital instruments, the interim final rule permits an FDIC-supervised institution to call an instrument prior to five years after issuance in the event that the issuing entity is required to register with the SEC as an investment company pursuant to the Investment Company Act of 1940, for the reasons discussed above with respect to additional tier 1 capital. Also for the reasons discussed above with respect to additional tier 1 capital instruments, the FDIC has decided not to permit an FDICsupervised institution to include in its tier 2 capital an instrument issued on or after the effective date of the interim final rule that may be called prior to five years after its issuance upon the occurrence of a rating agency event. However, the FDIC has decided to allow such an instrument to be included in tier 2 capital, provided that the instrument was issued and included in an FDIC-supervised institution’s tier 1 or tier 2 capital prior to January 1, 2014, and that such instrument meets all other criteria for tier 2 capital instruments under the interim final rule. In addition, similar to the comment above with respect to the proposed criteria for additional tier 1 capital instruments, commenters noted that the proposed criterion that a banking organization seek prior approval from its primary Federal supervisor before exercising a call option is redundant with the requirement that a banking organization seek prior approval before reducing regulatory capital by redeeming a capital instrument. Again, the FDIC believes that this proposed requirement restates and clarifies existing requirements without adding any new substantive restrictions, and that it will help to ensure that the regulatory capital rules provide FDICsupervised institutions with a complete list of the requirements applicable to their regulatory capital instruments. Therefore, the FDIC is retaining the requirement as proposed. Under the proposal, an advanced approaches banking organization may include in tier 2 capital the excess of its eligible credit reserves over expected credit loss (ECL) to the extent that such amount does not exceed 0.6 percent of credit risk-weighted assets, rather than including the amount of ALLL described above. Commenters asked the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 agencies to clarify whether an advanced approaches banking organization that is in parallel run includes in tier 2 capital its ECL or ALLL (as described above). To clarify, for purposes of the interim final rule, an advanced approaches FDIC-supervised institution will always include in total capital its ALLL up to 1.25 percent of (non-market risk) riskweighted assets when measuring its total capital relative to standardized risk-weighted assets. When measuring its total capital relative to its advanced approaches risk-weighted assets, as described in section 324.10(c)(3)(ii) of the interim final rule, an advanced approaches FDIC-supervised institution that has completed the parallel run process and that has received notification from the FDIC pursuant to section 324.121(d) of subpart E must adjust its total capital to reflect its excess eligible credit reserves rather than its ALLL. Some commenters recommended that the agencies remove the limit on the amount of the ALLL includable in regulatory capital. Specifically, one commenter recommended allowing banking organizations to include ALLL in tier 1 capital equal to an amount of up to 1.25 percent of total risk-weighted assets, with the balance in tier 2 capital, so that the entire ALLL would be included in regulatory capital. Moreover, some commenters recommended including in tier 2 capital the entire amount of reserves held for residential mortgage loans sold with recourse, given that the proposal would require a 100 percent credit conversion factor for such loans. Consistent with the ALLL treatment under the general risk-based capital rules, for purposes of the interim final rule the FDIC has elected to permit only limited amounts of the ALLL in tier 2 capital given its limited purpose of covering incurred rather than unexpected losses. For similar reasons, the FDIC has further elected not to recognize in tier 2 capital reserves held for residential mortgage loans sold with recourse. As described above, an FDICsupervised institution that has made an AOCI opt-out election may incorporate up to 45 percent of any net unrealized gains on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures into its tier 2 capital. After reviewing the comments received on this issue, the FDIC has determined to finalize the criteria for tier 2 capital instruments to include the aforementioned changes. The revised criteria for inclusion in tier 2 capital are set forth in section 324.20(d)(1) of the interim final rule. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 4. Capital Instruments of Mutual FDICSupervised Institutions Under the proposed rule, the qualifying criteria for common equity tier 1, additional tier 1, and tier 2 capital generally would apply to mutual banking organizations. Mutual banking organizations and industry groups representing mutual banking organizations encouraged the agencies to expand the qualifying criteria for additional tier 1 capital to recognize certain cumulative instruments. These commenters stressed that mutual banking organizations, which do not issue common stock, have fewer options for raising regulatory capital relative to other types of banking organizations. The FDIC does not believe that cumulative instruments are able to absorb losses sufficiently reliably to be included in tier 1 capital. Therefore, after considering these comments, the FDIC has decided not to include in tier 1 capital under the interim final rule any cumulative instrument. This would include any previously-issued mutual capital instrument that was included in the tier 1 capital of mutual FDICsupervised institutions under the general risk-based capital rules, but that does not meet the eligibility requirements for tier 1 capital under the interim final rule. These cumulative capital instruments will be subject to the transition provisions and phased out of the tier 1 capital of mutual FDICsupervised institutions over time, as set forth in Table 9 of section 324.300 in the interim final rule. However, if a mutual FDIC-supervised institution develops a new capital instrument that meets the qualifying criteria for regulatory capital under the interim final rule, such an instrument may be included in regulatory capital with the prior approval of the FDIC under section 324.20(e) of the interim final rule. The FDIC notes that the qualifying criteria for regulatory capital instruments under the interim final rule permit mutual FDIC-supervised institutions to include in regulatory capital many of their existing regulatory capital instruments (for example, nonwithdrawable accounts, pledged deposits, or mutual capital certificates). The FDIC believes that the quality and quantity of regulatory capital currently maintained by most mutual FDICsupervised institutions should be sufficient to satisfy the requirements of the interim final rule. For those organizations that do not currently hold enough capital to meet the revised minimum requirements, the transition arrangements are designed to ease the E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 burden of increasing regulatory capital over time. 5. Grandfathering of Certain Capital Instruments As described above, a substantial number of commenters objected to the proposed phase-out of non-qualifying capital instruments, including TruPS and cumulative perpetual preferred stock, from tier 1 capital. Community FDIC-supervised institutions in particular expressed concerns that the costs related to the replacement of such capital instruments, which they generally characterized as safe and lossabsorbent, would be excessive and unnecessary. Commenters noted that the proposal was more restrictive than section 171 of the Dodd-Frank Act, which requires the phase-out of nonqualifying capital instruments issued prior to May 19, 2010, only for depository institution holding companies with $15 billion or more in total consolidated assets as of December 31, 2009. Commenters argued that the agencies were exceeding Congressional intent by going beyond what was required under the Dodd-Frank Act Commenters requested that the agencies grandfather existing TruPS and cumulative perpetual preferred stock issued by depository institution holding companies with less than $15 billion and 2010 MHCs. Although the FDIC continues to believe that TruPS are not sufficiently loss-absorbing to be includable in tier 1 capital as a general matter, the FDIC is also sensitive to the difficulties community banking organizations often face when issuing new capital instruments and are aware of the importance their capacity to lend plays in local economies. Therefore the FDIC has decided in the interim final rule to grandfather such non-qualifying capital instruments in tier 1 capital subject to a limit of 25 percent of tier 1 capital elements excluding any non-qualifying capital instruments and after all regulatory capital deductions and adjustments applied to tier 1 capital, which is substantially similar to the limit in the general risk-based capital rules. In addition, the FDIC acknowledges that the inclusion of existing TruPS in tier 2 capital would benefit certain FDIC-supervised institutions until they are able to replace such instruments with new capital instruments that fully comply with the eligibility criteria of the interim final rule. 6. Agency Approval of Capital Elements The agencies noted in the proposal that they believe most existing VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 regulatory capital instruments will continue to be includable in banking organizations’ regulatory capital. However, over time, capital instruments that are equivalent in quality and capacity to absorb losses to existing instruments may be created to satisfy different market needs. Therefore, the agencies proposed to create a process to consider the eligibility of such instruments on a case-by-case basis. Under the proposed rule, a banking organization must request approval from its primary Federal supervisor before including a capital element in regulatory capital, unless: (i) such capital element is currently included in regulatory capital under the agencies’ general risk-based capital and leverage rules and the underlying instrument complies with the applicable proposed eligibility criteria for regulatory capital instruments; or (ii) the capital element is equivalent, in terms of capital quality and ability to absorb losses, to an element described in a previous decision made publicly available by the banking organization’s primary Federal supervisor. In the preamble to the proposal, the agencies indicated that they intend to consult each other when determining whether a new element should be included in common equity tier 1, additional tier 1, or tier 2 capital, and indicated that once one agency determines that a capital element may be included in a banking organization’s common equity tier 1, additional tier 1, or tier 2 capital, that agency would make its decision publicly available, including a brief description of the capital element and the rationale for the conclusion. The FDIC continues to believe that it is appropriate to retain the flexibility necessary to consider new instruments on a case-by-case basis as they are developed over time to satisfy different market needs. The FDIC has decided to move its authority in section 20(e)(1) of the proposal to the its reservation of authority provision included in section 324.1(d)(2)(ii) of the interim final rule. Therefore, the FDIC is adopting this aspect of the interim final rule substantively as proposed to create a process to consider the eligibility of such instruments on a permanent or temporary basis, in accordance with the applicable requirements in subpart C of the interim final rule (section 324.20(e) of the interim final rule). Section 324.20(e)(1) of the interim final rule provides that an FDICsupervised institution must receive FDIC’s prior approval to include a capital element in its common equity tier 1 capital, additional tier 1 capital, PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 55371 or tier 2 capital unless that element: (i) was included in the FDIC-supervised institution’s tier 1 capital or tier 2 capital prior to May 19, 2010 in accordance with that supervisor’s riskbased capital rules that were effective as of that date and the underlying instrument continues to be includable under the criteria set forth in this section; or (ii) is equivalent, in terms of capital quality and ability to absorb credit losses with respect to all material terms, to a regulatory capital element determined by that supervisor to be includable in regulatory capital pursuant to paragraph (e)(3) of section 324.20. In exercising this reservation of authority, the FDIC expects to consider the requirements for capital elements in the interim final rule; the size, complexity, risk profile, and scope of operations of the FDIC-supervised institution, and whether any public benefits would be outweighed by risk to an insured depository institution or to the financial system. 7. Addressing the Point of Non-Viability Requirements Under Basel III During the recent financial crisis, the United States and foreign governments lent to, and made capital investments in, banking organizations. These investments helped to stabilize the recipient banking organizations and the financial sector as a whole. However, because of the investments, the recipient banking organizations’ existing tier 2 capital instruments, and (in some cases) tier 1 capital instruments, did not absorb the banking organizations’ credit losses consistent with the purpose of regulatory capital. At the same time, taxpayers became exposed to potential losses. On January 13, 2011, the BCBS issued international standards for all additional tier 1 and tier 2 capital instruments issued by internationally-active banking organizations to ensure that such regulatory capital instruments fully absorb losses before taxpayers are exposed to such losses (the Basel nonviability standard). Under the Basel non-viability standard, all non-common stock regulatory capital instruments issued by an internationally-active banking organization must include terms that subject the instruments to write-off or conversion to common equity at the point at which either: (1) the write-off or conversion of those instruments occurs; or (2) a public sector injection of capital would be necessary to keep the banking organization solvent. Alternatively, if the governing jurisdiction of the banking organization has established laws that require such tier 1 and tier 2 E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55372 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations capital instruments to be written off or otherwise fully absorb losses before taxpayers are exposed to loss, the standard is already met. If the governing jurisdiction has such laws in place, the Basel non-viability standard states that documentation for such instruments should disclose that information to investors and market participants, and should clarify that the holders of such instruments would fully absorb losses before taxpayers are exposed to loss.66 U.S. law is consistent with the Basel non-viability standard. The resolution regime established in Title II, section 210 of the Dodd-Frank Act provides the FDIC with the authority necessary to place failing financial companies that pose a significant risk to the financial stability of the United States into receivership.67 The Dodd-Frank Act provides that this authority shall be exercised in a manner that minimizes systemic risk and moral hazard, so that (1) creditors and shareholders will bear the losses of the financial company; (2) management responsible for the condition of the financial company will not be retained; and (3) the FDIC and other appropriate agencies will take steps necessary and appropriate to ensure that all parties, including holders of capital instruments, management, directors, and third parties having responsibility for the condition of the financial company, bear losses consistent with their respective ownership or responsibility.68 Section 11 of the Federal Deposit Insurance Act has similar provisions for the resolution of depository institutions.69 Additionally, under U.S. bankruptcy law, regulatory capital instruments issued by a company would absorb losses in bankruptcy before instruments held by more senior unsecured creditors. Consistent with the Basel nonviability standard, under the proposal, additional tier 1 and tier 2 capital instruments issued by advanced approaches banking organizations after the date on which such organizations would have been required to comply with any interim final rule would have been required to include a disclosure that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the banking organization enters into a receivership, insolvency, liquidation, or similar proceeding. The FDIC is 66 See ‘‘Final Elements of the Reforms to Raise the Quality of Regulatory Capital’’ (January 2011), available at: https://www.bis.org/press/p110113.pdf. 67 See 12 U.S.C. 5384. 68 See 12 U.S.C. 5384. 69 12 U.S.C. 1821. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 adopting this provision of the proposed rule without change. 8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries of an FDIC-Supervised Institution As highlighted during the recent financial crisis, capital issued by consolidated subsidiaries and not owned by the parent banking organization (minority interest) is available to absorb losses at the subsidiary level, but that capital does not always absorb losses at the consolidated level. Accordingly, and consistent with Basel III, the proposed rule revised limitations on the amount of minority interest that may be included in regulatory capital at the consolidated level to prevent highly capitalized subsidiaries from overstating the amount of capital available to absorb losses at the consolidated organization. Under the proposal, minority interest would have been classified as a common equity tier 1, tier 1, or total capital minority interest depending on the terms of the underlying capital instrument and on the type of subsidiary issuing such instrument. Any instrument issued by a consolidated subsidiary to third parties would have been required to satisfy the qualifying criteria under the proposal to be included in the banking organization’s common equity tier 1, additional tier 1, or tier 2 capital, as appropriate. In addition, common equity tier 1 minority interest would have been limited to instruments issued by a depository institution or a foreign bank that is a consolidated subsidiary of a banking organization. The proposed limits on the amount of minority interest that could have been included in the consolidated capital of a banking organization would have been based on the amount of capital held by the consolidated subsidiary, relative to the amount of capital the subsidiary would have had to hold to avoid any restrictions on capital distributions and discretionary bonus payments under the capital conservation buffer framework. For example, a subsidiary with a common equity tier 1 capital ratio of 8 percent that needs to maintain a common equity tier 1 capital ratio of more than 7 percent to avoid limitations on capital distributions and discretionary bonus payments would have been considered to have ‘‘surplus’’ common equity tier 1 capital and, at the consolidated level, the banking organization would not have been able to include the portion of such surplus common equity tier 1 capital that is attributable to third party investors. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 In general, the amount of common equity tier 1 minority interest that could have been included in the common equity tier 1 capital of a banking organization under the proposal would have been equal to: (i) The common equity tier 1 minority interest of the subsidiary minus (ii) The ratio of the subsidiary’s common equity tier 1 capital owned by third parties to the total common equity tier 1 capital of the subsidiary, multiplied by the difference between the common equity tier 1 capital of the subsidiary and the lower of: (1) the amount of common equity tier 1 capital the subsidiary must hold to avoid restrictions on capital distributions and discretionary bonus payments, or (2)(a) the standardized total riskweighted assets of the banking organization that relate to the subsidiary, multiplied by (b) The common equity tier 1 capital ratio needed by the banking organization subsidiary to avoid restrictions on capital distributions and discretionary bonus payments. If a subsidiary were not subject to the same minimum regulatory capital requirements or capital conservation buffer framework as the banking organization, the banking organization would have needed to assume, for the purposes of the calculation described above, that the subsidiary is in fact subject to the same minimum capital requirements and the same capital conservation buffer framework as the banking organization. To determine the amount of tier 1 minority interest that could be included in the tier 1 capital of the banking organization and the total capital minority interest that could be included in the total capital of the banking organization, a banking organization would follow the same methodology as the one outlined previously for common equity tier 1 minority interest. The proposal set forth sample calculations. The amount of tier 1 minority interest that could have been included in the additional tier 1 capital of a banking organization under the proposal was equivalent to the banking organization’s tier 1 minority interest, subject to the limitations outlined above, less any common equity tier 1 minority interest included in the banking organization’s common equity tier 1 capital. Likewise, the amount of total capital minority interest that could have been included in the tier 2 capital of the banking organization was equivalent to its total capital minority interest, subject to the limitations outlined above, less any tier E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 1 minority interest that is included in the banking organization’s tier 1 capital. Under the proposal, minority interest related to qualifying common or noncumulative perpetual preferred stock directly issued by a consolidated U.S. depository institution or foreign bank subsidiary, which is eligible for inclusion in tier 1 capital under the general risk-based capital rules without limitation, generally would qualify for inclusion in common equity tier 1 and additional tier 1 capital, respectively, subject to the proposed limits. However, under the proposal, minority interest related to qualifying cumulative perpetual preferred stock directly issued by a consolidated U.S. depository institution or foreign bank subsidiary, which is eligible for limited inclusion in tier 1 capital under the general riskbased capital rules, generally would not have qualified for inclusion in additional tier 1 capital under the proposal. A number of commenters addressed the proposed limits on the inclusion of minority interest in regulatory capital. Commenters generally asserted that the proposed methodology for calculating the amount of minority interest that could be included in regulatory capital was overly complex, overly conservative, and would reduce incentives for bank subsidiaries to issue capital to third-party investors. Several commenters suggested that the agencies should adopt a more straightforward and simple approach that would provide a single blanket limitation on the amount of minority interest includable in regulatory capital. For example, one commenter suggested allowing a banking organization to include minority interest equal to 18 percent of common equity tier 1 capital. Another commenter suggested that minority interest where shareholders have commitments to provide additional capital, as well as minority interest in joint ventures where there are guarantees or other credit enhancements, should not be subject to the proposed limitations. Commenters also objected to any limitations on the amount of minority interest included in the regulatory capital of a parent banking organization attributable to instruments issued by a subsidiary when the subsidiary is a depository institution. These commenters stated that restricting such minority interest could create a disincentive for depository institutions to issue capital instruments directly or to maintain capital at levels substantially above regulatory minimums. To address this concern, commenters asked the agencies to VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 consider allowing a depository institution subsidiary to consider a portion of its capital above its minimum as not being part of its ‘‘surplus’’ capital for the purpose of calculating the minority interest limitation. Alternatively, some commenters suggested allowing depository institution subsidiaries to calculate surplus capital independently for each component of capital. Several commenters also addressed the proposed minority interest limitation as it would apply to subordinated debt issued by a depository institution. Generally, these commenters stated that the proposed minority interest limitation either should not apply to such subordinated debt, or that the limitation should be more flexible to permit a greater amount to be included in the total capital of the consolidated organization. Finally, some commenters pointed out that the application of the proposed calculation for the minority interest limitation was unclear in circumstances where a subsidiary depository institution does not have ‘‘surplus’’ capital. With respect to this comment, the FDIC has revised the proposed rule to specifically provide that the minority interest limitation will not apply in circumstances where a subsidiary’s capital ratios are equal to or below the level of capital necessary to meet the minimum capital requirements plus the capital conservation buffer. That is, in the interim final rule the minority interest limitation would apply only where a subsidiary has ‘‘surplus’’ capital. The FDIC continues to believe that the proposed limitations on minority interest are appropriate, including for capital instruments issued by depository institution subsidiaries, tier 2 capital instruments, and situations in which a depository institution holding company conducts the majority of its business through a single depository institution subsidiary. As noted above, the FDIC’s experience during the recent financial crisis showed that while minority interest generally is available to absorb losses at the subsidiary level, it may not always absorb losses at the consolidated level. Therefore, the FDIC continues to believe limitations on including minority interest will prevent highlycapitalized subsidiaries from overstating the amount of capital available to absorb losses at the consolidated organization. The increased safety and soundness benefits resulting from these limitations should outweigh any compliance burden issues related to the complexity of the calculations. Therefore, the FDIC is adopting the proposed treatment of PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 55373 minority interest without change, except for the clarification described above. 9. Real Estate Investment Trust Preferred Capital A real estate investment trust (REIT) is a company that is required to invest in real estate and real estate-related assets and make certain distributions in order to maintain a tax-advantaged status. Some banking organizations have consolidated subsidiaries that are REITs, and such REITs may have issued capital instruments included in the regulatory capital of the consolidated banking organization as minority interest under the general risk-based capital rules. Under the general risk-based capital rules, preferred stock issued by a REIT subsidiary generally can be included in a banking organization’s tier 1 capital as minority interest if the preferred stock meets the eligibility requirements for tier 1 capital.70 The agencies interpreted this to require that the REIT-preferred stock be exchangeable automatically into noncumulative perpetual preferred stock of the banking organization under certain circumstances. Specifically, the primary Federal supervisor may direct the banking organization in writing to convert the REIT preferred stock into noncumulative perpetual preferred stock of the banking organization because the banking organization: (1) became undercapitalized under the PCA regulations; 71 (2) was placed into conservatorship or receivership; or (3) was expected to become undercapitalized in the near term.72 Under the proposed rule, the limitations described previously on the inclusion of minority interest in regulatory capital would have applied to capital instruments issued by consolidated REIT subsidiaries. Specifically, preferred stock issued by a REIT subsidiary that met the proposed definition of an operating entity (as defined below) would have qualified for inclusion in the regulatory capital of a banking organization subject to the limitations outlined in section 21 of the proposed rule only if the REIT preferred stock met the criteria for additional tier 1 or tier 2 capital instruments outlined in section 20 of the proposed rules. Because a REIT must distribute 90 percent of its earnings to maintain its tax-advantaged status, a banking organization might be reluctant to cancel dividends on the REIT preferred 70 12 CFR part 325, subpart B. CFR part 325, subpart A (state nonmember banks), and 12 CFR part 390, subpart Y (state savings associations). 72 12 CFR part 325, subpart B (state nonmember banks) and 12 CFR part 390, subpart Y (state savings associations). 71 12 E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55374 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations stock. However, for a capital instrument to qualify as additional tier 1 capital the issuer must have the ability to cancel dividends. In cases where a REIT could maintain its tax status, for example, by declaring a consent dividend and it has the ability to do so, the agencies generally would consider REIT preferred stock to satisfy criterion (7) of the proposed eligibility criteria for additional tier 1 capital instruments.73 The FDIC notes that the ability to declare a consent dividend need not be included in the documentation of the REIT preferred instrument, but the FDIC-supervised institution must provide evidence to the relevant banking agency that it has such an ability. The FDIC does not expect preferred stock issued by a REIT that does not have the ability to declare a consent dividend or otherwise cancel cash dividends to qualify as tier 1 minority interest under the interim final rule; however, such an instrument could qualify as total capital minority interest if it meets all of the relevant tier 2 capital eligibility criteria under the interim final rule. Commenters requested clarification on whether a REIT subsidiary would be considered an operating entity for the purpose of the interim final rule. For minority interest issued from a subsidiary to be included in regulatory capital, the subsidiary must be either an operating entity or an entity whose only asset is its investment in the capital of the parent banking organization and for which proceeds are immediately available without limitation to the banking organization. Since a REIT has assets that are not an investment in the capital of the parent banking organization, minority interest in a REIT subsidiary can be included in the regulatory capital of the consolidated parent banking organization only if the REIT is an operating entity. For purposes of the interim final rule, an operating entity is defined as a company established to conduct business with clients with the intention of earning a profit in its own right. However, certain REIT subsidiaries currently used by FDIC-supervised institutions to raise regulatory capital are not actively managed for the purpose of earning a profit in their own right, and therefore, will not qualify as operating entities for the purpose of the interim final rule. Minority interest investments in REIT subsidiaries that are actively managed 73 A consent dividend is a dividend that is not actually paid to the shareholders, but is kept as part of a company’s retained earnings, yet the shareholders have consented to treat the dividend as if paid in cash and include it in gross income for tax purposes. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 for purposes of earning a profit in their own right will be eligible for inclusion in the regulatory capital of the FDICsupervised institution subject to the limits described in section 21 of the interim final rule. To the extent that an FDIC-supervised institution is unsure whether minority interest investments in a particular REIT subsidiary will be includable in the FDIC-supervised institution’s regulatory capital, the organization should discuss the concern with its primary Federal supervisor prior to including any amount of the minority interest in its regulatory capital. Several commenters objected to the application of the limitations on the inclusion of minority interest resulting from noncumulative perpetual preferred stock issued by REIT subsidiaries. Commenters noted that to be included in the regulatory capital of the consolidated parent banking organization under the general riskbased capital rules, REIT preferred stock must include an exchange feature that allows the REIT preferred stock to absorb losses at the parent banking organization through the exchange of REIT preferred instruments into noncumulative perpetual preferred stock of the parent banking organization. Because of this exchange feature, the commenters stated that REIT preferred instruments should be included in the tier 1 capital of the parent consolidated organization without limitation. Alternatively, some commenters suggested that the agencies should allow REIT preferred instruments to be included in the tier 2 capital of the consolidated parent organization without limitation. Commenters also noted that in light of the eventual phase-out of TruPS pursuant to the Dodd-Frank Act, REIT preferred stock would be the only taxadvantaged means for bank holding companies to raise tier 1 capital. According to these commenters, limiting this tax-advantaged option would increase the cost of doing business for many banking organizations. After considering these comments, the FDIC has decided not to create specific exemptions to the limitations on the inclusion of minority interest with respect to REIT preferred instruments. As noted above, the FDIC believes that the inclusion of minority interest in regulatory capital at the consolidated level should be limited to prevent highly-capitalized subsidiaries from overstating the amount of capital available to absorb losses at the consolidated organization. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 B. Regulatory Adjustments and Deductions 1. Regulatory Deductions From Common Equity Tier 1 Capital Under the proposal, a banking organization must deduct from common equity tier 1 capital elements the items described in section 22 of the proposed rule. A banking organization would exclude the amount of these deductions from its total risk-weighted assets and leverage exposure. This section B discusses the deductions from regulatory capital elements as revised for purposes of the interim final rule. a. Goodwill and Other Intangibles (Other Than Mortgage Servicing Assets) U.S. federal banking statutes generally prohibit the inclusion of goodwill (as it is an ‘‘unidentified intangible asset’’) in the regulatory capital of insured depository institutions.74 Accordingly, goodwill and other intangible assets have long been either fully or partially excluded from regulatory capital in the United States because of the high level of uncertainty regarding the ability of the banking organization to realize value from these assets, especially under adverse financial conditions.75 Under the proposed rule, a banking organization was required to deduct from common equity tier 1 capital elements goodwill and other intangible assets other than MSAs 76 net of associated deferred tax liabilities (DTLs). For purposes of this deduction, goodwill would have included any goodwill embedded in the valuation of significant investments in the capital of an unconsolidated financial institution in the form of common stock. This deduction of embedded goodwill would have applied to investments accounted for under the equity method.77 Consistent with Basel III, these items would have been deducted from common equity tier 1 capital elements. MSAs would have been subject to a different treatment under Basel III and the proposal, as explained below in this section. One commenter sought clarification regarding the amount of goodwill that must be deducted from common equity tier 1 capital elements when a banking organization has an investment in the 74 12 U.S.C. 1828(n). FR 11500, 11509 (March 21, 1989). 76 Examples of other intangible assets include purchased credit card relationships (PCCRs) and non-mortgage servicing assets. 77 Under GAAP, if there is a difference between the initial cost basis of the investment and the amount of underlying equity in the net assets of the investee, the resulting difference should be accounted for as if the investee were a consolidated subsidiary (which may include imputed goodwill). 75 54 E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations any after-tax gain-on-sale associated with a securitization exposure. Under the proposal, gain-on-sale was defined as an increase in the equity capital of a banking organization resulting from a securitization (other than an increase in equity capital resulting from the banking organization’s receipt of cash in connection with the securitization). A number of commenters requested clarification that the proposed deduction for gain-on-sale would not require a double deduction for MSAs. According to the commenters, a sale of loans to a securitization structure that creates a gain may include an MSA that also meets the proposed definition of ‘‘gain-on-sale.’’ The FDIC agrees that a double deduction for MSAs is not required, and the interim final rule clarifies in the definition of ‘‘gain-onsale’’ that a gain-on-sale excludes any portion of the gain that was reported by the FDIC-supervised institution as an MSA. The FDIC also notes that the definition of gain-on-sale was intended to relate only to gains associated with the sale of loans for the purpose of traditional securitization. Thus, the definition of gain-on-sale has been revised in the interim final rule to mean an increase in common equity tier 1 capital of the FDIC-supervised institution resulting from a traditional securitization except where such an increase results from the FDICsupervised institution’s receipt of cash in connection with the securitization or initial recognition of an MSA. capital of an unconsolidated financial institution that is accounted for under the equity method of accounting under GAAP. The FDIC has revised section 22(a)(1) in the interim final rule to clarify that it is the amount of goodwill that is embedded in the valuation of a significant investment in the capital of an unconsolidated financial institution in the form of common stock that is accounted for under the equity method, and reflected in the consolidated financial statements of the FDICsupervised institution that an FDICsupervised institution must deduct from common equity tier 1 capital elements. Another commenter requested clarification regarding the amount of embedded goodwill that a banking organization would be required to deduct where there are impairments to the embedded goodwill subsequent to the initial investment. The FDIC notes that, for purposes of the interim final rule, an FDIC-supervised institution must deduct from common equity tier 1 capital elements any embedded goodwill in the valuation of significant investments in the capital of an unconsolidated financial institution in the form of common stock net of any related impairments (subsequent to the initial investment) as determined under GAAP, not the goodwill reported on the balance sheet of the unconsolidated financial institution. The proposal did not include a transition period for the implementation of the requirement to deduct goodwill from common equity tier 1 capital. A number of commenters expressed concern that this could disadvantage U.S. banking organizations relative to those in jurisdictions that permit such a transition period. The FDIC notes that section 221 of FIRREA (12 U.S.C. 1828(n)) requires all unidentifiable intangible assets (goodwill) acquired after April 12, 1989, to be deducted from an FDIC-supervised institution’s capital elements. The only exception to this requirement, permitted under 12 U.S.C. 1464(t) (applicable to Federal savings association), has expired. Therefore, consistent with the requirements of section 221 of FIRREA and the general risk-based capital rules, the FDIC believes that it is not appropriate to permit any goodwill to be included in an FDIC-supervised institution’s capital. The interim final rule does not include a transition period for the deduction of goodwill. c. Defined Benefit Pension Fund Net Assets For banking organizations other than insured depository institutions, the proposal required the deduction of a net pension fund asset in calculating common equity tier 1 capital. A banking organization was permitted to make such deduction net of any associated DTLs. This deduction would be required where a defined benefit pension fund is over-funded due to the high level of uncertainty regarding the ability of the banking organization to realize value from such assets. The proposal provided that, with supervisory approval, a banking organization would not have been required to deduct defined benefit pension fund assets to which the banking organization had unrestricted and unfettered access.78 In this case, the proposal established that the banking b. Gain-on-sale Associated With a Securitization Exposure Under the proposal, a banking organization would deduct from common equity tier 1 capital elements 78 The FDIC has unfettered access to the pension fund assets of an insured depository institution’s pension plan in the event of receivership; therefore, the FDIC determined that an insured depository institution would not be required to deduct a net pension fund asset. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 55375 organization would have assigned to such assets the risk weight they would receive if the assets underlying the plan were directly owned and included on the balance sheet of the banking organization. The proposal set forth that unrestricted and unfettered access would mean that a banking organization would not have been required to request and receive specific approval from pension beneficiaries each time it accessed excess funds in the plan. One commenter asked whether shares of a banking organization that are owned by the banking organization’s pension fund are subject to deduction. The FDIC notes that the interim final rule does not require deduction of banking organization shares owned by the pension fund. Another commenter asked for clarification regarding the treatment of an overfunded pension asset at an insured depository institution if the pension plan sponsor is the parent BHC. The FDIC clarifies that the requirement to deduct a defined benefit pension plan net asset is not dependent upon the sponsor of the plan; rather it is dependent upon whether the net pension fund asset is an asset of an insured depository institution. The agencies also received questions regarding the appropriate risk-weight treatment for a pension fund asset. As discussed above, with the prior agency approval, a banking organization that is not an insured depository institution may elect to not deduct any defined benefit pension fund net asset to the extent such banking organization has unrestricted and unfettered access to the assets in that defined benefit pension fund. Any portion of the defined benefit pension fund net asset that is not deducted by the banking organization must be risk-weighted as if the banking organization directly holds a proportional ownership share of each exposure in the defined benefit pension fund. For example, if the banking organization has a defined benefit pension fund net asset of $10 and it has unfettered and unrestricted access to the assets of defined benefit pension fund, and assuming 20 percent of the defined benefit pension fund is composed of assets that are risk-weighted at 100 percent and 80 percent is composed of assets that are risk-weighted at 300 percent, the banking organization would risk weight $2 at 100 percent and $8 at 300 percent. This treatment is consistent with the full look-through approach described in section 53(b) of the interim final rule. If the defined benefit pension fund invests in the capital of a financial institution, including an investment in the banking organization’s own capital E:\FR\FM\10SER2.SGM 10SER2 55376 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations instruments, the banking organization would risk weight the proportional share of such exposure in accordance with the treatment under subparts D or E, as appropriate. The FDIC is adopting as final this section of the proposal with the changes described above. emcdonald on DSK67QTVN1PROD with RULES2 d. Expected Credit Loss That Exceeds Eligible Credit Reserves The proposal required an advanced approaches banking organization to deduct from common equity tier 1 capital elements the amount of expected credit loss that exceeds the banking organization’s eligible credit reserves. Commenters sought clarification that the proposed deduction would not apply for advanced approaches banking organizations that have not received the approval of their primary Federal supervisor to exit parallel run. The FDIC agrees that the deduction would not apply to FDIC-supervised institutions that have not received approval from their primary Federal supervisor to exit parallel run. In response, the FDIC has revised this provision of the interim final rule to apply to an FDICsupervised institution subject to subpart E of the interim final rule that has completed the parallel run process and that has received notification from the FDIC under section 324.121(d) of the advanced approaches rule. e. Equity Investments in Financial Subsidiaries Section 121 of the Gramm-LeachBliley Act allows national banks and insured state banks to establish entities known as financial subsidiaries.79 One of the statutory requirements for establishing a financial subsidiary is that a national bank or insured state bank must deduct any investment in a financial subsidiary from the depository institution’s assets and tangible equity.80 The FDIC implemented this statutory requirement through regulation at 12 CFR 362.18. Under section 22(a)(7) of the proposal, investments by an insured state bank in financial subsidiaries would be deducted entirely from the bank’s common equity tier 1 capital.81 Because common equity tier 1 capital is a component of tangible equity, the proposed deduction from common equity tier 1 would have automatically resulted in a deduction from tangible equity. The FDIC believes that the more 79 Public Law 106–102, 113 Stat. 1338, 1373 (Nov. 12, 1999). 80 12 U.S.C. 24a(c); 12 U.S.C. 1831w(a)(2). 81 The deduction provided for in the FDIC’s existing regulations would be removed and would exist solely in the interim final rule. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 conservative treatment is appropriate for financial subsidiaries given the risks associated with nonbanking activities, and are finalizing this treatment as proposed. Therefore, under the interim final rule, an FDIC-supervised institution must deduct the aggregate amount of its outstanding equity investment in a financial subsidiary, including the retained earnings of a subsidiary from common equity tier 1 capital elements, and the assets and liabilities of the subsidiary may not be consolidated with those of the parent bank. f. Deduction for Subsidiaries of Savings Associations That Engage in Activities That Are Not Permissible for National Banks Section 5(t)(5) 82 of HOLA requires a separate capital calculation for state savings associations for ‘‘investments in and extensions of credit to any subsidiary engaged in activities not permissible for a national bank.’’ This statutory provision was implemented in the state savings associations’ capital rules through a deduction from the core (tier 1) capital of the state savings association for those subsidiaries that are not ‘‘includable subsidiaries.’’ The FDIC proposed to continue the general risk-based capital treatment of includable subsidiaries, with some technical modifications. Aside from those technical modifications, the proposal would have transferred, without substantive change, the current general regulatory treatment of deducting subsidiary investments where a subsidiary is engaged in activities not permissible for a national bank. Such treatment is consistent with how a national bank deducts its equity investments in financial subsidiaries. The FDIC proposed an identical treatment for state savings associations.83 The FDIC received no comments on this proposed deduction. The interim final rule adopts the proposal with one change and other minor technical edits, consistent with 12 U.S.C. 1464(t)(5), to clarify that the required deduction for a state savings association’s investment in a subsidiary that is engaged in activities not permissible for a national bank includes extensions of credit to such a subsidiary. g. Identified Losses for State Nonmember Banks Under its existing capital rules, the FDIC requires state nonmember banks to deduct from tier 1 capital elements 82 12 83 12 PO 00000 U.S.C. 1464(t)(5). CFR 324.22. Frm 00038 Fmt 4701 Sfmt 4700 identified losses to the extent that tier 1 capital would have been reduced if the appropriate accounting entries had been recorded on the insured depository institution’s books. Generally, for purposes of these rules, identified losses are those items that an examiner from the federal or state supervisor for that institution determines to be chargeable against income, capital, or general valuation allowances. For example, identified losses may include, among other items, assets classified loss, offbalance sheet items classified loss, any expenses that are necessary for the institution to record in order to replenish its general valuation allowances to an adequate level, and estimated losses on contingent liabilities. The FDIC is revising the interim final rule to clarify that state nonmember banks and state savings associations remain subject to its long-standing supervisory procedures regarding the deduction of identified losses. Therefore, for purposes of the interim final rule, such institutions must deduct identified losses from common equity tier 1 capital elements. 2. Regulatory Adjustments to Common Equity Tier 1 Capital a. Accumulated Net Gains and Losses on Certain Cash-Flow Hedges Consistent with Basel III, under the proposal, a banking organization would have been required to exclude from regulatory capital any accumulated net gains and losses on cash-flow hedges relating to items that are not recognized at fair value on the balance sheet. This proposed regulatory adjustment was intended to reduce the artificial volatility that can arise in a situation in which the accumulated net gain or loss of the cash-flow hedge is included in regulatory capital but any change in the fair value of the hedged item is not. The agencies received a number of comments on this proposed regulatory capital adjustment. In general, the commenters noted that while the intent of the adjustment is to remove an element that gives rise to artificial volatility in common equity, the proposed adjustment may actually increase volatility in the measure of common equity tier 1 capital. These commenters indicated that the proposed adjustment, together with the proposed treatment of net unrealized gains and losses on AFS debt securities, would create incentives for banking organizations to avoid hedges that reduce interest rate risk; shorten maturity of their investments in AFS securities; or move their investment E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 securities portfolio from AFS to HTM. To address these concerns, commenters suggested several alternatives, such as including all accumulated net gains and losses on cash-flow hedges in common equity tier 1 capital to match the proposal to include in common equity tier 1 capital net unrealized gains and losses on AFS debt securities; retaining the provisions in the agencies’ general risk-based capital rules that exclude most elements of AOCI from regulatory capital; or using a principles-based approach to accommodate variations in the interest rate management techniques employed by each banking organization. Under the interim final rule, the FDIC has retained the requirement that all FDIC-supervised institutions subject to the advanced approaches rule, and those FDIC-supervised institutions that elect to include AOCI in common equity tier 1 capital, must subtract from common equity tier 1 capital elements any accumulated net gains and must add any accumulated net losses on cashflow hedges included in AOCI that relate to the hedging of items that are not recognized at fair value on the balance sheet. The FDIC believes that this adjustment removes an element that gives rise to artificial volatility in common equity tier 1 capital as it would avoid a situation in which the changes in the fair value of the cash-flow hedge are reflected in capital but the changes in the fair value of the hedged item are not. b. Changes in an FDIC-Supervised Institution’s Own Credit Risk The proposal provided that a banking organization would not be permitted to include in regulatory capital any change in the fair value of a liability attributable to changes in the banking organization’s own credit risk. In addition, the proposal would have required advanced approaches banking organizations to deduct the credit spread premium over the risk-free rate for derivatives that are liabilities. Consistent with Basel III, these provisions were intended to prevent a banking organization from recognizing increases in regulatory capital resulting from any change in the fair value of a liability attributable to changes in the banking organization’s own creditworthiness. Under the interim final rule, all FDIC-supervised institutions not subject to the advanced approaches rule must deduct any cumulative gain from and add back to common equity tier 1 capital elements any cumulative loss attributed to changes in the value of a liability measured at fair value arising from changes in the FDIC-supervised institution’s own credit risk. This VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 requirement would apply to all liabilities that an FDIC-supervised institution must measure at fair value under GAAP, such as derivative liabilities, or for which the FDICsupervised institution elects to measure at fair value under the fair value option.84 Similarly, advanced approaches FDICsupervised institutions must deduct any cumulative gain from and add back any cumulative loss to common equity tier 1 capital elements attributable to changes in the value of a liability that the FDIC-supervised institution elects to measure at fair value under GAAP. For derivative liabilities, advanced approaches FDIC-supervised institutions must implement this requirement by deducting the credit spread premium over the risk-free rate. c. Accumulated Other Comprehensive Income Under the agencies’ general risk-based capital rules, most of the components of AOCI included in a company’s GAAP equity are not included in an FDICsupervised institution’s regulatory capital. Under GAAP, AOCI includes unrealized gains and losses on certain assets and liabilities that are not included in net income. Among other items, AOCI includes unrealized gains and losses on AFS securities; other than temporary impairment on securities reported as HTM that are not creditrelated; cumulative gains and losses on cash-flow hedges; foreign currency translation adjustments; and amounts attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans. Under the agencies’ general risk-based capital rules, FDIC-supervised institutions do not include most amounts reported in AOCI in their regulatory capital calculations. Instead, they exclude these amounts by subtracting unrealized or accumulated net gains from, and adding back unrealized or accumulated net losses to, equity capital. The only amounts of AOCI included in regulatory capital are unrealized losses on AFS equity securities and foreign currency translation adjustments, which are included in tier 1 capital. Additionally, FDIC-supervised institutions may include up to 45 percent of unrealized gains on AFS equity securities in their tier 2 capital. In contrast, consistent with Basel III, the proposed rule required banking 84 825–10–25 (former Financial Accounting Standards Board Statement No. 159). PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 55377 organizations to include all AOCI components in common equity tier 1 capital elements, except gains and losses on cash-flow hedges where the hedged item is not recognized on a banking organization’s balance sheet at fair value. Unrealized gains and losses on all AFS securities would flow through to common equity tier 1 capital elements, including unrealized gains and losses on debt securities due to changes in valuations that result primarily from fluctuations in benchmark interest rates (for example, U.S. Treasuries and U.S. government agency debt obligations), as opposed to changes in credit risk. In the Basel III NPR, the agencies indicated that the proposed regulatory capital treatment of AOCI would better reflect an institution’s actual risk. In particular, the agencies stated that while unrealized gains and losses on AFS debt securities might be temporary in nature and reverse over a longer time horizon (especially when those gains and losses are primarily attributable to changes in benchmark interest rates), unrealized losses could materially affect a banking organization’s capital position at a particular point in time and associated risks should therefore be reflected in its capital ratios. In addition, the agencies observed that the proposed treatment would be consistent with the common market practice of evaluating a firm’s capital strength by measuring its tangible common equity, which generally includes AOCI. However, the agencies also acknowledged that including unrealized gains and losses related to debt securities (especially those whose valuations primarily change as a result of fluctuations in a benchmark interest rate) could introduce substantial volatility in a banking organization’s regulatory capital ratios. Specifically, the agencies observed that for some banking organizations, including unrealized losses on AFS debt securities in their regulatory capital calculations could mean that fluctuations in a benchmark interest rate could lead to changes in their PCA categories from quarter to quarter. Recognizing the potential impact of such fluctuations on regulatory capital management for some institutions, the agencies described possible alternatives to the proposed treatment of unrealized gains and losses on AFS debt securities, including an approach that would exclude from regulatory capital calculations those unrealized gains and losses that are related to AFS debt securities whose valuations primarily change as a result of fluctuations in benchmark interest rates, including U.S. government and E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55378 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations agency debt obligations, GSE debt obligations, and other sovereign debt obligations that would qualify for a zero percent risk weight under the standardized approach. A large proportion of commenters addressed the proposed treatment of AOCI in regulatory capital. Banking organizations of all sizes, banking and other industry groups, public officials (including members of the U.S. Congress), and other individuals strongly opposed the proposal to include most AOCI components in common equity tier 1 capital. Specifically, commenters asserted that the agencies should not implement the proposal and should instead continue to apply the existing treatment for AOCI that excludes most AOCI amounts from regulatory capital. Several commenters stated that the accounting standards that require banking organizations to take a charge against earnings (and thus reduce capital levels) to reflect credit-related losses as part of other-than-temporary impairments already achieve the agencies’ goal to create regulatory capital ratios that provide an accurate picture of a banking organization’s capital position, without also including AOCI in regulatory capital. For unrealized gains and losses on AFS debt securities that typically result from changes in benchmark interest rates rather than changes in credit risk, most commenters expressed concerns that the value of such securities on any particular day might not be a good indicator of the value of those securities for a banking organization, given that the banking organization could hold them until they mature and realize the amount due in full. Most commenters argued that the inclusion of unrealized gains and losses on AFS debt securities in regulatory capital could result in volatile capital levels and adversely affect other measures tied to regulatory capital, such as legal lending limits, especially if and when interest rates rise from their current historically-low levels. Accordingly, several commenters requested that the agencies permit banking organizations to remove from regulatory capital calculations unrealized gains and losses on AFS debt securities that have low credit risk but experience price movements based primarily on fluctuations in benchmark interest rates. According to commenters, these debt securities would include securities issued by the United States and other stable sovereign entities, U.S. agencies and GSEs, as well as some municipal entities. One commenter expressed concern that the proposed treatment of AOCI would lead banking VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 organizations to invest excessively in securities with low volatility. Some commenters also suggested that unrealized gains and losses on highquality asset-backed securities and highquality corporate securities should be excluded from regulatory capital calculations. The commenters argued that these adjustments to the proposal would allow regulatory capital to reflect unrealized gains or losses related to the credit quality of a banking organization’s AFS debt securities. Additionally, commenters noted that, under the proposal, offsetting changes in the value of other items on a banking organization’s balance sheet would not be recognized for regulatory capital purposes when interest rates change. For example, the commenters observed that banking organizations often hold AFS debt securities to hedge interest rate risk associated with deposit liabilities, which are not marked to fair value on the balance sheet. Therefore, requiring banking organizations to include AOCI in regulatory capital would mean that interest rate fluctuations would be reflected in regulatory capital only for one aspect of this hedging strategy, with the result that the proposed treatment could greatly overstate the economic impact that interest rate changes have on the safety and soundness of the banking organization. Several commenters used sample AFS securities portfolio data to illustrate how an upward shift in interest rates could have a substantial impact on a banking organization’s capital levels (depending on the composition of its AFS portfolio and its defined benefit postretirement obligations). According to these commenters, the potential negative impact on capital levels that could follow a substantial increase in interest rates would place significant strains on banking organizations. To address the potential impact of incorporating the volatility associated with AOCI into regulatory capital, banking organizations also noted that they could increase their overall capital levels to create a buffer above regulatory minimums, hedge or reduce the maturities of their AFS debt securities, or shift more debt securities into their HTM portfolio. However, commenters asserted that these strategies would be complicated and costly, especially for smaller banking organizations, and could lead to a significant decrease in lending activity. Many community banking organization commenters observed that hedging or raising additional capital may be especially difficult for banking organizations with limited access to capital markets, while PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 shifting more debt securities into the HTM portfolio would impair active management of interest rate risk positions and negatively impact a banking organization’s liquidity position. These commenters also expressed concern that this could be especially problematic given the increased attention to liquidity by banking regulators and industry analysts. A number of commenters indicated that in light of the potential impact of the proposed treatment of AOCI on a banking organization’s liquidity position, the agencies should, at the very least, postpone implementing this aspect of the proposal until after implementation of the BCBS’s revised liquidity standards. Commenters suggested that postponing the implementation of the AOCI treatment would help to ensure that the final capital rules do not create disincentives for a banking organization to increase its holdings of high-quality liquid assets. In addition, several commenters suggested that the agencies not require banking organizations to include in regulatory capital unrealized gains and losses on assets that would qualify as ‘‘high quality liquid assets’’ under the BCBS’s ‘‘liquidity coverage ratio’’ under the Basel III liquidity framework. Finally, several commenters addressed the inclusion in AOCI of actuarial gains and losses on defined benefit pension fund obligations. Commenters stated that many banking organizations, particularly mutual banking organizations, offer defined benefit pension plans to attract employees because they are unable to offer stock options to employees. These commenters noted that actuarial gains and losses on defined benefit obligations represent the difference between benefit assumptions and, among other things, actual investment experiences during a given year, which is influenced predominantly by the discount rate assumptions used to determine the value of the plan obligation. The discount rate is tied to prevailing long-term interest rates at a point in time each year, and while market returns on the underlying assets of the plan and the discount rates may fluctuate year to year, the underlying liabilities typically are longer term—in some cases 15 to 20 years. Therefore, changing interest rate environments could lead to material fluctuations in the value of a banking organization’s defined benefit post-retirement fund assets and liabilities, which in turn could create material swings in a banking organization’s regulatory capital that would not be tied to changes E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations in the credit quality of the underlying assets. Commenters stated that the added volatility in regulatory capital could lead some banking organizations to reconsider offering defined benefit pension plans. The FDIC has considered the comments on the proposal to incorporate most elements of AOCI in regulatory capital, and has taken into account the potential effects that the proposed AOCI treatment could have on FDIC-supervised institutions and their function in the economy. As discussed in the proposal, the FDIC believes that the proposed AOCI treatment results in a regulatory capital measure that better reflects FDIC-supervised institutions’ actual risk at a specific point in time. The FDIC also believes that AOCI is an important indicator that market observers use to evaluate the capital strength of an FDIC-supervised institution. However, the FDIC recognizes that for many FDIC-supervised institutions, the volatility in regulatory capital that could result from the proposal could lead to significant difficulties in capital planning and asset-liability management. The FDIC also recognizes that the tools used by advanced approaches FDIC-supervised institutions and other larger, more complex FDIC-supervised institutions for managing interest rate risk are not necessarily readily available to all FDICsupervised institutions. Therefore, in the interim final rule, the FDIC has decided to permit those FDIC-supervised institutions that are not subject to the advanced approaches risk-based capital rules to elect to calculate regulatory capital by using the treatment for AOCI in the FDIC’s general risk-based capital rules, which excludes most AOCI amounts. Such FDICsupervised institutions, may make a one-time, permanent election 85 to effectively continue using the AOCI treatment under the general risk-based capital rules for their regulatory calculations (‘‘AOCI opt-out election’’) when filing the Call Report for the first reporting period after the date upon which they become subject to the interim final rule. Pursuant to a separate notice under the Paperwork Reduction Act, the agencies intend to propose revisions to the Call Report to implement changes in reporting items that would correspond 85 This one-time, opt-out selection does not cover a merger, acquisition or purchase transaction involving all or substantially all of the assets or voting stock between two banking organizations of which only one made an AOCI opt-out election. The resulting organization may make an AOCI election with prior agency approval. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 to the interim final rule. These revisions will include a line item for FDICsupervised institutions to indicate their AOCI opt-out election in their first regulatory report filed after the date the FDIC-supervised institution becomes subject to the interim final rule. Information regarding the AOCI opt-out election will be made available to the public and will be reflected on an ongoing basis in publicly available regulatory reports. An FDIC-supervised institution that does not make an AOCI opt-out election on the Call Report filed for the first reporting period after the effective date of the interim final rule must include all AOCI components, except accumulated net gains and losses on cash-flow hedges related to items that are not recognized at fair value on the balance sheet, in regulatory capital elements starting the first quarter in which the FDIC-supervised institution calculates its regulatory capital requirements under the interim final rule. Consistent with regulatory capital calculations under the FDIC’s general risk-based capital rules, an FDICsupervised institution that makes an AOCI opt-out election under the interim final rule must adjust common equity tier 1 capital elements by: (1) Subtracting any net unrealized gains and adding any net unrealized losses on AFS securities; (2) subtracting any net unrealized losses on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures; (3) subtracting any accumulated net gains and adding back any accumulated net losses on cash-flow hedges included in AOCI; (4) subtracting amounts attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (excluding, at the FDICsupervised institution’s option, the portion relating to pension assets deducted under section 324.22(a)(5)); and (5) subtracting any net unrealized gains and adding any net unrealized losses on held-to-maturity securities that are included in AOCI. In addition, consistent with the general risk-based capital rules, the FDIC-supervised institution must incorporate into common equity tier 1 capital any foreign currency translation adjustment. An FDIC-supervised institution may also incorporate up to 45 percent of any net unrealized gains on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures into its tier 2 capital elements. However, the FDIC may exclude all or a portion of these unrealized gains from an FDIC- PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 55379 supervised institution’s tier 2 capital under the reservation of authority provision of the interim final rule if the FDIC determines that such preferred stock or equity exposures are not prudently valued. The FDIC believes that FDICsupervised institutions that apply the advanced approaches rule or that have opted to use the advanced approaches rule should already have the systems in place necessary to manage the added volatility resulting from the new AOCI treatment. Likewise, pursuant to the Dodd-Frank Act, these large, complex FDIC-supervised institutions are subject to enhanced prudential standards, including stress-testing requirements, and therefore should be prepared to manage their capital levels through the types of stressed economic environments, including environments with shifting interest rates, that could lead to substantial changes in amounts reported in AOCI. Accordingly, under the interim final rule, advanced approaches FDIC-supervised institutions will be required to incorporate all AOCI components, except accumulated net gains and losses on cash-flow hedges that relate to items that are not measured at fair value on the balance sheet, into their common equity tier 1 capital elements according to the transition provisions set forth in the interim final rule. The interim final rule additionally provides that in a merger, acquisition, or purchase transaction between two FDICsupervised institutions that have each made an AOCI opt-out election, the surviving entity will be required to continue with the AOCI opt-out election, unless the surviving entity is an advanced approaches FDICsupervised institution. Similarly, in a merger, acquisition, or purchase transaction between two FDICsupervised institutions that have each not made an AOCI opt-out election, the surviving entity must continue implementing such treatment going forward. If an entity surviving a merger, acquisition, or purchase transaction becomes subject to the advanced approaches rule, it is no longer permitted to make an AOCI opt-out election and, therefore, must include most elements of AOCI in regulatory capital in accordance with the interim final rule. However, following a merger, acquisition or purchase transaction involving all or substantially all of the assets or voting stock between two banking organizations of which only one made an AOCI opt-out election (and the surviving entity is not subject to the advanced approaches rule), the E:\FR\FM\10SER2.SGM 10SER2 55380 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 surviving entity must decide whether to make an AOCI opt-out election by its first regulatory reporting date following the consummation of the transaction.86 For example, if all of the equity of a banking organization that has made an AOCI opt-out election is acquired by a banking organization that has not made such an election, the surviving entity may make a new AOCI opt-out election in the Call Report filed for the first reporting period after the effective date of the merger. The interim final rule also provides the FDIC with discretion to allow a new AOCI opt-out election where a merger, acquisition or purchase transaction between two banking organizations that have made different AOCI opt-out elections does not involve all or substantially all of the assets or voting stock of the purchased or acquired banking organization. In making such a determination, the FDIC may consider the terms of the merger, acquisition, or purchase transaction, as well as the extent of any changes to the risk profile, complexity, and scope of operations of the banking organization resulting from the merger, acquisition, or purchase transaction. The FDIC may also look to the Bank Merger Act 87 for guidance on the types of transactions that would allow the surviving entity to make a new AOCI opt-out election. Finally, a de novo FDIC-supervised institution formed after the effective date of the interim final rule is required to make a decision to opt out in the first Call Report it is required to file. The interim final rule also provides that if a top-tier depository institution holding company makes an AOCI optout election, any subsidiary insured depository institution that is consolidated by the depository institution holding company also must make an AOCI opt-out election. The FDIC is concerned that if some FDICsupervised institutions subject to regulatory capital rules under a common parent holding company make an AOCI opt-out election and others do not, there is a potential for these organizations to engage in capital arbitrage by choosing to book exposures or activities in the 86 A merger would involve ‘‘all or substantially all’’ of the assets or voting stock where, for example: (1) a banking organization buys all of the voting stock of a target banking organization, except for the stock of a dissenting, non-controlling minority shareholder; or (2) the banking organization buys all of the assets and major business lines of a target banking organization, but does not purchase a minor business line of the target. Circumstances in which the ‘‘all or substantially all’’ standard likely would not be met would be, for example: (1) a banking organization buys less than 80 percent of another banking organization; or (3) a banking organization buys only three out of four of another banking organization’s major business lines. 87 12 U.S.C. 1828(c). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 legal entity for which the relevant components of AOCI are treated most favorably. Notwithstanding the availability of the AOCI opt-out election under the interim final rule, the FDIC has reserved the authority to require an FDICsupervised institution to recognize all or some components of AOCI in regulatory capital if an agency determines it would be appropriate given an FDICsupervised institution’s risks under the FDIC’s general reservation of authority under the interim final rule. The FDIC will continue to expect each FDICsupervised institution to maintain capital appropriate for its actual risk profile, regardless of whether it has made an AOCI opt-out election. Therefore, the FDIC may determine that an FDIC-supervised institution with a large portfolio of AFS debt securities, or that is otherwise engaged in activities that expose it to high levels of interestrate or other risks, should raise its common equity tier 1 capital level substantially above the regulatory minimums, regardless of whether that FDIC-supervised institution has made an AOCI opt-out election. d. Investments in Own Regulatory Capital Instruments To avoid the double-counting of regulatory capital, the proposal would have required a banking organization to deduct the amount of its investments in its own capital instruments, including direct and indirect exposures, to the extent such instruments are not already excluded from regulatory capital. Specifically, the proposal would require a banking organization to deduct its investment in its own common equity tier 1, additional tier 1, and tier 2 capital instruments from the sum of its common equity tier 1, additional tier 1, and tier 2 capital, respectively. In addition, under the proposal any common equity tier 1, additional tier 1, or tier 2 capital instrument issued by a banking organization that the banking organization could be contractually obligated to purchase also would have been deducted from common equity tier 1, additional tier 1, or tier 2 capital elements, respectively. The proposal noted that if a banking organization had already deducted its investment in its own capital instruments (for example, treasury stock) from its common equity tier 1 capital, it would not need to make such deductions twice. The proposed rule would have required a banking organization to look through its holdings of an index to deduct investments in its own capital instruments. Gross long positions in investments in its own regulatory PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 capital instruments resulting from holdings of index securities would have been netted against short positions in the same underlying index. Short positions in indexes to hedge long cash or synthetic positions could have been decomposed to recognize the hedge. More specifically, the portion of the index composed of the same underlying exposure that is being hedged could have been used to offset the long position only if both the exposure being hedged and the short position in the index were covered positions under the market risk rule and the hedge was deemed effective by the banking organization’s internal control processes which would have been assessed by the primary Federal supervisor of the banking organization. If the banking organization found it operationally burdensome to estimate the investment amount of an index holding, the proposal permitted the institution to use a conservative estimate with prior approval from its primary Federal supervisor. In all other cases, gross long positions would have been allowed to be deducted net of short positions in the same underlying instrument only if the short positions involved no counterparty risk (for example, the position was fully collateralized or the counterparty is a qualifying central counterparty (QCCP)). As discussed above, under the proposal, a banking organization would be required to look through its holdings of an index security to deduct investments in its own capital instruments. Some commenters asserted that the burden of the proposed lookthrough approach outweighs its benefits because it is not likely a banking organization would re-purchase its own stock through such indirect means. These commenters suggested that the agencies should not require a lookthrough test for index securities on the grounds that they are not ‘‘covert buybacks,’’ but rather are incidental positions held within a banking organization’s trading book, often entered into on behalf of clients, customers or counterparties, and are economically hedged. However, the FDIC believes that it is important to avoid the double-counting of regulatory capital, whether held directly or indirectly. Therefore, the interim final rule implements the look-through requirements of the proposal without change. In addition, consistent with the treatment for indirect investments in an FDIC-supervised institution’s own capital instruments, the FDIC has clarified in the interim final rule that FDIC-supervised institutions must E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 deduct synthetic exposures related to investments in own capital instruments. e. Definition of Financial Institution Under the proposed rule, a banking organization would have been required to deduct an investment in the capital of an unconsolidated financial institution exceeding certain thresholds, as described below. The proposed definition of financial institution was designed to include entities whose activities and primary business are financial in nature and therefore could contribute to interconnectedness in the financial system. The proposed definition covered entities whose primary business is banking, insurance, investing, and trading, or a combination thereof, and included BHCs, SLHCs, nonbank financial institutions supervised by the Federal Reserve under Title I of the Dodd-Frank Act, depository institutions, foreign banks, credit unions, insurance companies, securities firms, commodity pools, covered funds for purposes of section 13 of the Bank Holding Company Act and regulations issued thereunder, companies ‘‘predominantly engaged’’ in financial activities, non-U.S.-domiciled entities that would otherwise have been covered by the definition if they were U.S.-domiciled, and any other company that the agencies determined was a financial institution based on the nature and scope of its activities. The definition excluded GSEs and firms that were ‘‘predominantly engaged’’ in activities that are financial in nature but focus on community development, public welfare projects, and similar objectives. Under the proposed definition, a company would have been ‘‘predominantly engaged’’ in financial activities if (1) 85 percent or more of the total consolidated annual gross revenues (as determined in accordance with applicable accounting standards) of the company in either of the two most recent calendar years were derived, directly or indirectly, by the company on a consolidated basis from the activities; or (2) 85 percent or more of the company’s consolidated total assets (as determined in accordance with applicable accounting standards) as of the end of either of the two most recent calendar years were related to the activities. The proposed definition of ‘‘financial institution’’ was also relevant for purposes of the Advanced Approaches NPR. Specifically, the proposed rule would have required banking organizations to apply a multiplier of 1.25 to the correlation factor for wholesale exposures to unregulated financial institutions that generate a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 majority of their revenue from financial activities. The proposed rule also would have required advanced approaches banking organizations to apply a multiplier of 1.25 to wholesale exposures to regulated financial institutions with consolidated assets greater than or equal to $100 billion.88 The agencies received a number of comments on the proposed definition of ‘‘financial institution.’’ Commenters expressed concern that the definition of a financial institution was overly broad and stated that it should not include investments in funds, commodity pools, or ERISA plans. Other commenters stated that the ‘‘predominantly engaged’’ test would impose significant operational burdens on banking organizations in determining what companies would be included in the proposed definition of ‘‘financial institution.’’ Commenters suggested that the agencies should risk weight such exposures, rather than subjecting them to a deduction from capital based on the definition of financial institution. Some of the commenters noted that many of the exposures captured by the financial institution definition may be risk-weighted under certain circumstances, and expressed concerns that overlapping regulation would result in confusion. For similar reasons, commenters recommended that the agencies limit the definition of financial institution to specific enumerated entities, such as regulated financial institutions, including insured depository institutions and holding companies, nonbank financial companies designated by the Financial Stability Oversight Council, insurance companies, securities holding companies, foreign banks, securities firms, futures commission merchants, swap dealers, and security based swap dealers. Other commenters stated that the definition should cover only those entities subject to consolidated regulatory capital requirements. Commenters also encouraged the agencies to adopt alternatives to the ‘‘predominantly engaged’’ test for identifying a financial institution, such as the use of standard industrial classification codes or legal entity identifiers. Other commenters suggested 88 The definitions of regulated financial institutions and unregulated financial institutions are discussed in further detail in section XII.A of this preamble. Under the proposal, a ‘‘regulated financial institution’’ would include a financial institution subject to consolidated supervision and regulation comparable to that imposed on U.S. companies that are depository institutions, depository institution holding companies, nonbank financial companies supervised by the Board, broker dealers, credit unions, insurance companies, and designated financial market utilities. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 55381 that the agencies should limit the application of the ‘‘predominantly engaged’’ test in the definition of ‘‘financial institution’’ to companies above a specified size threshold. Similarly, others requested that the agencies exclude any company with total assets of less than $50 billion. Many commenters indicated that the broad definition proposed by the agencies was not required by Basel III and was unnecessary to promote systemic stability and avoid interconnectivity. Some commenters stated that funds covered by Section 13 of the Bank Holding Company Act also should be excluded. Other commenters suggested that the agencies should exclude investment funds registered with the SEC under the Investment Company Act of 1940 and their foreign equivalents, while some commenters suggested methods of narrowing the definition to cover only leveraged funds. Commenters also requested that the agencies clarify that investment or financial advisory activities include providing both discretionary and nondiscretionary investment or financial advice to customers, and that the definition would not capture either registered investment companies or investment advisers to registered funds. After considering the comments, the FDIC has modified the definition of ‘‘financial institution’’ to provide more clarity around the scope of the definition as well as reduce operational burden. Separate definitions are adopted under the advanced approaches provisions of the interim final rule for ‘‘regulated financial institution’’ and ‘‘unregulated financial institution’’ for purposes of calculating the correlation factor for wholesale exposures, as discussed in section XII.A of this preamble. Under the interim final rule, the first paragraph of the definition of a financial institution includes an enumerated list of regulated institutions similar to the list that appeared in the first paragraph of the proposed definition: A BHC; SLHC; nonbank financial institution supervised by the Federal Reserve under Title I of the Dodd-Frank Act; depository institution; foreign bank; credit union; industrial loan company, industrial bank, or other similar institution described in section 2 of the Bank Holding Company Act; national association, state member bank, or state nonmember bank that is not a depository institution; insurance company; securities holding company as defined in section 618 of the DoddFrank Act; broker or dealer registered with the SEC; futures commission merchant and swap dealer, each as E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55382 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations defined in the Commodity Exchange Act; or security-based swap dealer; or any designated financial market utility (FMU). The definition also includes foreign companies that would be covered by the definition if they are supervised and regulated in a manner similar to the institutions described above that are included in the first paragraph of the definition of ‘‘financial institution.’’ The FDIC also has retained in the final definition of ‘‘financial institution’’ a modified version of the proposed ‘‘predominantly engaged’’ test to capture additional entities that perform certain financial activities that the FDIC believes appropriately addresses those relationships among financial institutions that give rise to concerns about interconnectedness, while reducing operational burden. Consistent with the proposal, a company is ‘‘predominantly engaged’’ in financial activities for the purposes of the definition if it meets the test to the extent the following activities make up more than 85 percent of the company’s total assets or gross revenues: (1) Lending money, securities or other financial instruments, including servicing loans; (2) Insuring, guaranteeing, indemnifying against loss, harm, damage, illness, disability, or death, or issuing annuities; (3) Underwriting, dealing in, making a market in, or investing as principal in securities or other financial instruments; or (4) Asset management activities (not including investment or financial advisory activities). In response to comments expressing concerns regarding operational burden and potential lack of access to necessary information in applying the proposed ‘‘predominantly engaged’’ test, the FDIC has revised that portion of the definition. Now, the FDIC-supervised institution would only apply the test if it has an investment in the GAAP equity instruments of the company with an adjusted carrying value or exposure amount equal to or greater than $10 million, or if it owns more than 10 percent of the company’s issued and outstanding common shares (or similar equity interest). The FDIC believes that this modification would reduce burden on FDIC-supervised institutions with small exposures, while those with larger exposures should have sufficient information as a shareholder to conduct the predominantly engaged analysis.89 89 For advanced approaches FDIC-supervised institutions, for purposes of section 131 of the interim final rule, the definition of ‘‘unregulated financial institution’’ does not include the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 In cases when an FDIC-supervised institution’s investment in the FDICsupervised institution exceeds one of the thresholds described above, the FDIC-supervised institution must determine whether the company is predominantly engaged in financial activities, in accordance with the interim final rule. The FDIC believes that this modification will substantially reduce operational burden for FDICsupervised institutions with investments in multiple institutions. The FDIC also believes that an investment of $10 million in or a holding of 10 percent of the outstanding common shares (or equivalent ownership interest) of an entity has the potential to create a risk of interconnectedness, and also makes it reasonable for the FDIC-supervised institution to gain information necessary to understand the operations and activities of the company in which it has invested and to apply the proposed ‘‘predominantly engaged’’ test under the definition. The FDIC is clarifying that, consistent with the proposal, investment or financial advisers (whether they provide discretionary or non-discretionary advisory services) are not covered under the definition of financial institution. The revised definition also specifically excludes employee benefit plans. The FDIC believes, upon review of the comments, that employee benefit plans are heavily regulated under ERISA and do not present the same kind of risk of systemic interconnectedness that the enumerated financial institutions present. The revised definition also explicitly excludes investment funds registered with the SEC under the Investment Company Act of 1940, as the FDIC believes that such funds create risks of systemic interconnectedness largely through their investments in the capital of financial institutions. These investments are addressed directly by the interim final rule’s treatment of indirect investments in financial institutions. Although the revised definition does not specifically include commodities pools, under some circumstances an FDIC-supervised institution’s investment in a commodities pool might meet the requirements of the modified ‘‘predominantly engaged’’ test. Some commenters also requested that the agencies establish an asset threshold below which an entity would not be included in the definition of ‘‘financial institution.’’ The FDIC has not included such a threshold because they are ownership limitation in applying the ‘‘predominantly engaged’’ standard. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 concerned that it could create an incentive for multiple investments and aggregated exposures in smaller financial institutions, thereby undermining the rationale underlying the treatment of investments in the capital of unconsolidated financial institutions. The FDIC believes that the definition of financial institution appropriately captures both large and small entities engaged in the core financial activities that the FDIC believes should be addressed by the definition and associated deductions from capital. The FDIC believes, however, that the modification to the ‘‘predominantly engaged’’ test, should serve to alleviate some of the burdens with which the commenters who made this point were concerned. Consistent with the proposal, investments in the capital of unconsolidated financial institutions that are held indirectly (indirect exposures) are subject to deduction. Under the proposal, a banking organization’s entire investment in, for example, a registered investment company would have been subject to deduction from capital. Although those entities are excluded from the definition of financial institution in the interim final rule unless the ownership threshold is met, any holdings in the capital instruments of financial institutions held indirectly through investment funds are subject to deduction from capital. More generally, and as described later in this section of the preamble, the interim final rule provides an explicit mechanism for calculating the amount of an indirect investment subject to deduction. f. The Corresponding Deduction Approach The proposals incorporated the Basel III corresponding deduction approach for the deductions from regulatory capital related to reciprocal crossholdings, non-significant investments in the capital of unconsolidated financial institutions, and non-common stock significant investments in the capital of unconsolidated financial institutions. Under the proposal, a banking organization would have been required to make any such deductions from the same component of capital for which the underlying instrument would qualify if it were issued by the banking organization itself. If a banking organization did not have a sufficient amount of a specific regulatory capital component against which to effect the deduction, the shortfall would have been deducted from the next higher (that is, more subordinated) regulatory E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations capital component. For example, if a banking organization did not have enough additional tier 1 capital to satisfy the required deduction, the shortfall would be deducted from common equity tier 1 capital elements. Under the proposal, if the banking organization invested in an instrument issued by an financial institution that is not a regulated financial institution, the banking organization would have treated the instrument as common equity tier 1 capital if the instrument is common stock (or if it is otherwise the most subordinated form of capital of the financial institution) and as additional tier 1 capital if the instrument is subordinated to all creditors of the financial institution except common shareholders. If the investment is in the form of an instrument issued by a regulated financial institution and the instrument does not meet the criteria for any of the regulatory capital components for banking organizations, the banking organization would treat the instrument as: (1) Common equity tier 1 capital if the instrument is common stock included in GAAP equity or represents the most subordinated claim in liquidation of the financial institution; (2) additional tier 1 capital if the instrument is GAAP equity and is subordinated to all creditors of the financial institution and is only senior in liquidation to common shareholders; and (3) tier 2 capital if the instrument is not GAAP equity but it is considered regulatory capital by the primary supervisor of the financial institution. Some commenters sought clarification on whether, under the corresponding deduction approach, TruPS would be deducted from tier 1 or tier 2 capital. In response to these comments the FDIC has revised the interim final rule to clarify the deduction treatment for investments of non-qualifying capital instruments, including TruPS, under the corresponding deduction approach. The interim final rule includes a new paragraph section 22(c)(2)(iii) to provide that if an investment is in the form of a non-qualifying capital instrument described in section 300(d) of the interim final rule, the FDIC-supervised institution must treat the instrument as a: (1) tier 1 capital instrument if it was included in the issuer’s tier 1 capital prior to May 19, 2010; or (2) tier 2 capital instrument if it was included in the issuer’s tier 2 capital (but not eligible for inclusion in the issuer’s tier 1 capital) prior to May 19, 2010. In addition, to avoid a potential circularity issue (related to the combined impact of the treatment of ALLL and the risk-weight treatment for threshold items that are not deducted VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 from common equity tier 1 capital) in the calculation of common equity tier 1 capital, the interim final rule clarifies that FDIC-supervised institutions must apply any deductions under the corresponding deduction approach resulting from insufficient amounts of a specific regulatory capital component after applying any deductions from the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds discussed further below. This was accomplished by removing proposed paragraph 22(c)(2)(i) from the corresponding deduction approach section and inserting paragraph 22(f). Under section 22(f) of the interim final rule, and as noted above, if an FDICsupervised institution does not have a sufficient amount of a specific component of capital to effect the required deduction under the corresponding deduction approach, the shortfall must be deducted from the next higher (that is, more subordinated) component of regulatory capital. g. Reciprocal Crossholdings in the Capital Instruments of Financial Institutions A reciprocal crossholding results from a formal or informal arrangement between two financial institutions to swap, exchange, or otherwise intend to hold each other’s capital instruments. The use of reciprocal crossholdings of capital instruments to artificially inflate the capital positions of each of the financial institutions involved would undermine the purpose of regulatory capital, potentially affecting the stability of such financial institutions as well as the financial system. Under the agencies’ general risk-based capital rules, reciprocal crossholdings of capital instruments of FDIC-supervised institutions are deducted from regulatory capital. Consistent with Basel III, the proposal would have required a banking organization to deduct reciprocal crossholdings of capital instruments of other financial institutions using the corresponding deduction approach. The interim final rule maintains this treatment. h. Investments in the FDIC-Supervised Institution’s Own Capital Instruments or in the Capital of Unconsolidated Financial Institutions In the interim final rule, the FDIC made several non-substantive changes to the wording in the proposal to clarify that the amount of an investment in the FDIC-supervised institution’s own capital instruments or in the capital of unconsolidated financial institutions is the net long position (as calculated under section 22(h) of the interim final PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 55383 rule) of such investments. The interim final rule also clarifies how to calculate the net long position of these investments, especially for the case of indirect exposures. It is the net long position that is subject to deduction. In addition, the interim final rule generally harmonizes the recognition of hedging for own capital instruments and for investments in the capital of unconsolidated financial institutions. Under the interim final rule, an investment in an FDIC-supervised institution’s own capital instrument is deducted from regulatory capital and an investment in the capital of an unconsolidated financial institution is subject to deduction from regulatory capital if such investment exceeds certain thresholds. An investment in the capital of an unconsolidated financial institution refers to the net long position (calculated in accordance with section 22(h) of the interim final rule) in an instrument that is recognized as capital for regulatory purposes by the primary supervisor of an unconsolidated regulated financial institution or in an instrument that is part of GAAP equity of an unconsolidated unregulated financial institution. It includes direct, indirect, and synthetic exposures to capital instruments, and excludes underwriting positions held by an FDICsupervised institution for fewer than five business days. An investment in the FDIC-supervised institution’s own capital instrument means a net long position calculated in accordance with section 22(h) of the interim final rule in the FDICsupervised institution’s own common stock instrument, own additional tier 1 capital instrument or own tier 2 capital instrument, including direct, indirect or synthetic exposures to such capital instruments. An investment in the FDIC-supervised institution’s own capital instrument includes any contractual obligation to purchase such capital instrument. The interim final rule also clarifies that the gross long position for an investment in the FDIC-supervised institution’s own capital instrument or the capital of an unconsolidated financial institution that is an equity exposure refers to the adjusted carrying value (determined in accordance with section 51(b) of the interim final rule). For the case of an investment in the FDIC-supervised institution’s own capital instrument or the capital of an unconsolidated financial institution that is not an equity exposure, the gross long position is defined as the exposure amount (determined in accordance with section 2 of the interim final rule). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55384 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Under the proposal, the agencies included the methodology for the recognition of hedging and for the calculation of the net long position regarding investments in the banking organization’s own capital instruments and in investments in the capital of unconsolidated financial institutions in the definitions section. However, such methodology appears in section 22 of the interim final rule as the FDIC believes it is more appropriate to include it in the adjustments and deductions to regulatory capital section. The interim final rule provides that the net long position is the gross long position in the underlying instrument (including covered positions under the market risk rule) net of short positions in the same instrument where the maturity of the short position either matches the maturity of the long position or has a residual maturity of at least one year. An FDIC-supervised institution may only net a short position against a long position in the FDICsupervised institution’s own capital instrument if the short position involves no counterparty credit risk. The long and short positions in the same index without a maturity date are considered to have matching maturities. If both the long position and the short position do not have contractual maturity dates, then the positions are considered maturity-matched. For positions that are reported on an FDIC-supervised institution’s regulatory report as trading assets or trading liabilities, if the FDICsupervised institution has a contractual right or obligation to sell a long position at a specific point in time, and the counterparty to the contract has an obligation to purchase the long position if the FDIC-supervised institution exercises its right to sell, this point in time may be treated as the maturity of the long position. Therefore, if these conditions are met, the maturity of the long position and the short position would be deemed to be matched even if the maturity of the short position is less than one year. Gross long positions in own capital instruments or in the capital instruments of unconsolidated financial institutions resulting from positions in an index may be netted against short positions in the same underlying index. Short positions in indexes that are hedging long cash or synthetic positions may be decomposed to recognize the hedge. More specifically, the portion of the index that is composed of the same underlying exposure that is being hedged may be used to offset the long position, provided both the exposure being hedged and the short position in the index are trading assets or trading VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 liabilities, and the hedge is deemed effective by the FDIC-supervised institution’s internal control processes, which the FDIC has found not to be inadequate. An indirect exposure results from an FDIC-supervised institution’s investment in an investment fund that has an investment in the FDICsupervised institution’s own capital instrument or the capital of an unconsolidated financial institution. A synthetic exposure results from an FDIC-supervised institution’s investment in an instrument where the value of such instrument is linked to the value of the FDIC-supervised institution’s own capital instrument or a capital instrument of a financial institution. Examples of indirect and synthetic exposures include: (1) An investment in the capital of an investment fund that has an investment in the capital of an unconsolidated financial institution; (2) a total return swap on a capital instrument of the FDIC-supervised institution or another financial institution; (3) a guarantee or credit protection, provided to a third party, related to the third party’s investment in the capital of another financial institution; (4) a purchased call option or a written put option on the capital instrument of another financial institution; (5) a forward purchase agreement on the capital of another financial institution; and (6) a trust preferred security collateralized debt obligation (TruPS CDO). Investments, including indirect and synthetic exposures, in the capital of unconsolidated financial institutions are subject to the corresponding deduction approach if they surpass certain thresholds described below. With the prior written approval of the FDIC, for the period of time stipulated by the supervisor, an FDIC-supervised institution is not required to deduct investments in the capital of unconsolidated financial institutions described in this section if the investment is made in connection with the FDIC-supervised institution providing financial support to a financial institution in distress, as determined by the supervisor. Likewise, an FDIC-supervised institution that is an underwriter of a failed underwriting can request approval from the FDIC to exclude underwriting positions related to such failed underwriting held for longer than five days. Some commenters requested clarification that a long position and short hedging position are considered ‘‘maturity matched’’ if (1) the maturity period of the short position extends beyond the maturity period of the long PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 position or (2) both long and short positions mature or terminate within the same calendar quarter. The FDIC notes that they concur with these commenters’ interpretation of the maturity matching of long and short hedging positions. For purposes of calculating the net long position in the capital of an unconsolidated financial institution, several commenters expressed concern that allowing banking organizations to net gross long positions with short positions only where the maturity of the short position either matches the maturity of the long position or has a maturity of at least one year is not practical, as some exposures, such as cash equities, have no maturity. These commenters expressed concern that such a maturity requirement could result in banking organizations deducting equities held as hedges for equity swap transactions with a client, making the latter transactions uneconomical and resulting in disruptions to market activity. Similarly, these commenters argued that providing customer accommodation equity swaps could become burdensome as a strict reading of the proposal could affect the ability of banking organizations to offset the equity swap with the long equity position because the maturity of the equity swap is typically less than one year. The FDIC has considered the comments and have decided to retain the maturity requirement as proposed. The FDIC believes that the proposed maturity requirements will reduce the possibility of ‘‘cliff effects’’ resulting from the deduction of open equity positions when an FDIC-supervised institution is unable to replace the hedge or sell the long equity position. i. Indirect Exposure Calculations The proposal provided that an indirect exposure would result from a banking organization’s investment in an unconsolidated entity that has an exposure to a capital instrument of a financial institution, while a synthetic exposure would result from the banking organization’s investment in an instrument where the value of such instrument is linked to the value of a capital instrument of a financial institution. With the exception of index securities, the proposal did not, however, provide a mechanism for calculating the amount of the indirect exposure that is subject to deduction. The interim final rule clarifies the methodologies for calculating the net long position related to an indirect exposure (which is subject to deduction under the interim final rule) by E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations providing a methodology for calculating the gross long position of such indirect exposure. The FDIC believes that the options provided in the interim final rule will provide FDIC-supervised institutions with increased clarity regarding the treatment of indirect exposures, as well as increased risksensitivity to the FDIC-supervised institution’s actual potential exposure. In order to limit the potential difficulties in determining whether an unconsolidated entity in fact holds the FDIC-supervised institution’s own capital or the capital of unconsolidated financial institutions, the interim final rule also provides that the indirect exposure requirements only apply when the FDIC-supervised institution holds an investment in an investment fund, as defined in the rule. Accordingly, an FDIC-supervised institution invested in, for example, a commercial company is not required to determine whether the commercial company has any holdings of the FDIC-supervised institution’s own capital or the capital instruments of financial institutions. The interim final rule provides that an FDIC-supervised institution may determine that its gross long position is equivalent to its carrying value of its investment in an investment fund that holds the FDIC-supervised institution’s own capital or that holds an investment in the capital of an unconsolidated financial institution, which would be subject to deduction according to section 324.22(c). Recognizing, however, that the FDIC-supervised institution’s exposure to those capital instruments may be less than its carrying value of its investment in the investment fund, the interim final rule provides two alternatives for calculating the gross long position of an indirect exposure. For an indirect exposure resulting from a position in an index, an FDIC-supervised institution may, with the prior approval of the FDIC, use a conservative estimate of the amount of its investment in its own capital instruments or the capital instruments of other financial institutions. If the investment is held through an investment fund, an FDIC-supervised institution may use a look-through approach similar to the approach used for risk weighting equity exposures to investment funds. Under this approach, an FDIC-supervised institution may multiply the carrying value of its investment in an investment fund by either the exact percentage of the FDICsupervised institution’s own capital instrument or capital instruments of unconsolidated financial institutions held by the investment fund or by the highest stated prospectus limit for such VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 investments held by the investment fund. Accordingly, if an FDICsupervised institution with a carrying value of $10,000 for its investment in an investment fund knows that the investment fund has invested 30 percent of its assets in the capital of financial institutions, then the FDIC-supervised institution could subject $3,000 (the carrying value times the percentage invested in the capital of financial institutions) to deduction from regulatory capital. The FDIC believes that the approach is flexible and benefits an FDIC-supervised institution that obtains and maintains information about its investments through investment funds. It also provides a simpler calculation method for an FDICsupervised institution that either does not have information about the holdings of the investment fund or chooses not to do the more complex calculation. j. Non-significant Investments in the Capital of Unconsolidated Financial Institutions The proposal provided that nonsignificant investments in the capital of unconsolidated financial institutions would be the net long position in investments where a banking organization owns 10 percent or less of the issued and outstanding common stock of an unconsolidated financial institution. Under the proposal, if the aggregate amount of a banking organization’s nonsignificant investments in the capital of unconsolidated financial institutions exceeds 10 percent of the sum of the banking organization’s own common equity tier 1 capital, minus certain applicable deductions and other regulatory adjustments to common equity tier 1 capital (the 10 percent threshold for non-significant investments), the banking organization would have been required to deduct the amount of the non-significant investments that are above the 10 percent threshold for non-significant investments, applying the corresponding deduction approach.90 90 The regulatory adjustments and deductions applied in the calculation of the 10 percent threshold for non-significant investments are those required under sections 22(a) through 22(c)(3) of the proposal. That is, the required deductions and adjustments for goodwill and other intangibles (other than MSAs) net of associated DTLs (when the banking organization has elected to net DTLs in accordance with section 22(e)), DTAs that arise from net operating loss and tax credit carryforwards net of related valuation allowances and DTLs (in accordance with section 22(e)), cash-flow hedges associated with items that are not recognized at fair value on the balance sheet, excess ECLs (for advanced approaches banking organizations only), gains-on-sale on securitization exposures, gains and losses due to changes in own credit risk on PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 55385 Under the proposal, the amount to be deducted from a specific capital component would be equal to the amount of a banking organization’s nonsignificant investments in the capital of unconsolidated financial institutions exceeding the 10 percent threshold for non-significant investments multiplied by the ratio of: (1) The amount of nonsignificant investments in the capital of unconsolidated financial institutions in the form of such capital component to (2) the amount of the banking organization’s total non-significant investments in the capital of unconsolidated financial institutions. The amount of a banking organization’s non-significant investments in the capital of unconsolidated financial institutions that does not exceed the 10 percent threshold for non-significant investments would, under the proposal, generally be assigned the applicable risk weight under section 32 or section 131, as applicable (in the case of noncommon stock instruments), section 52 or section 152, as applicable (in the case of common stock instruments), or section 53, section 154, as applicable (in the case of indirect investments via an investment fund), or, in the case of a covered position, in accordance with subpart F, as applicable. One commenter requested clarification that a banking organization would not have to take a ‘‘double deduction’’ for an investment made in unconsolidated financial institutions held through another unconsolidated financial institution in which the banking organization has invested. The FDIC notes that, under the interim final rule, where an FDIC-supervised institution has an investment in an unconsolidated financial institution (Institution A) and Institution A has an investment in another unconsolidated financial institution (Institution B), the FDIC-supervised institution would not be deemed to have an indirect investment in Institution B for purposes of the interim final rule’s capital thresholds and deductions because the FDIC-supervised institution’s investment in Institution A is already subject to capital thresholds and deductions. However, if an FDICsupervised institution has an investment in an investment fund that does not meet the definition of a financial institution, it must consider financial liabilities measured at fair value, defined benefit pension fund net assets for banking organizations that are not insured by the FDIC (net of associated DTLs in accordance with section 22(e)), investments in own regulatory capital instruments (not deducted as treasury stock), and reciprocal crossholdings. E:\FR\FM\10SER2.SGM 10SER2 55386 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 the assets of the investment fund to be indirect holdings. Some commenters requested clarification that the deductions for nonsignificant investments in the capital of unconsolidated financial institutions may be net of associated DTLs. The FDIC has clarified in the interim final rule that an FDIC-supervised institution must deduct the net long position in non-significant investments in the capital of unconsolidated financial institutions, net of associated DTLs in accordance with section 324.22(e) of the interim final rule, that exceeds the 10 percent threshold for non-significant investments. Under section 324.22(e) of the interim final rule, the netting of DTLs against assets that are subject to deduction or fully deducted under section 324.22 of the interim final rule is permitted but not required. Other commenters asked the agencies to confirm that the proposal would not require that investments in TruPS CDOs be treated as investments in the capital of unconsolidated financial institutions, but rather treat the investments as securitization exposures. The FDIC believes that investments in TruPS CDOs are synthetic exposures to the capital of unconsolidated financial VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 institutions and are thus subject to deduction. Under the interim final rule, any amounts of TruPS CDOs that are not deducted are subject to the securitization treatment. k. Significant Investments in the Capital of Unconsolidated Financial Institutions That Are Not in the Form of Common Stock Under the proposal, a significant investment in the capital of an unconsolidated financial institution would be the net long position in an investment where a banking organization owns more than 10 percent of the issued and outstanding common stock of the unconsolidated financial institution. Significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock are investments where the banking organization owns capital of an unconsolidated financial institution that is not in the form of common stock in addition to 10 percent of the issued and outstanding common stock of that financial institution. Such a noncommon stock investment would be deducted by applying the corresponding deduction approach. Significant investments in the capital of PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 unconsolidated financial institutions that are in the form of common stock would be subject to 10 and 15 percent common equity tier 1 capital threshold deductions described below in this section. A number of commenters sought clarification as to whether under section 22(c) of the proposal, a banking organization may deduct any significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock net of associated DTLs. The interim final rule clarifies that such deductions may be net of associated DTLs in accordance with paragraph 324.22(e) of the interim final rule. Other than this revision, the interim final rule adopts the proposed rule. More generally, commenters also sought clarification on the treatment of investments in the capital of unconsolidated financial institutions (for example, the distinction between significant and non-significant investments). Thus, the chart below summarizes the treatment of investments in the capital of unconsolidated financial institutions. BILLING CODE 6714–01–P E:\FR\FM\10SER2.SGM 10SER2 55387 BILLING CODE 6714–01–C VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.000</GPH> emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 55388 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations l. Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital Threshold Deductions Under the proposal, a banking organization would have deducted from the sum of its common equity tier 1 capital elements the amount of each of the following items that individually exceeds the 10 percent common equity tier 1 capital deduction threshold described below: (1) DTAs arising from temporary differences that could not be realized through net operating loss carrybacks (net of any related valuation allowances and net of DTLs, as described in section 22(e) of the proposal); (2) MSAs, net of associated DTLs in accordance with section 22(e) of the proposal; and (3) significant investments in the capital of unconsolidated financial institutions in the form of common stock (referred to herein as items subject to the threshold deductions). Under the proposal, a banking organization would have calculated the 10 percent common equity tier 1 capital deduction threshold by taking 10 percent of the sum of a banking organization’s common equity tier 1 elements, less adjustments to, and deductions from common equity tier 1 capital required under sections 22(a) through (c) of the proposal. As mentioned above in section V.B, under the proposal banking organizations would have been required to deduct from common equity tier 1 capital any goodwill embedded in the valuation of significant investments in the capital of unconsolidated financial institutions in the form of common stock. A banking organization would have been allowed to reduce the investment amount of such significant investment by the goodwill embedded in such investment. For example, if a banking organization has deducted $10 of goodwill embedded in a $100 significant investment in the capital of an unconsolidated financial institution in the form of common stock, the banking organization would be allowed to reduce the investment amount of such significant investment by the amount of embedded goodwill (that is, the value of the investment would be $90 for purposes of the calculation of the amount that would be subject to deduction under this part of the proposal). In addition, under the proposal the aggregate amount of the items subject to the threshold deductions that are not deducted as a result of the 10 percent common equity tier 1 capital deduction threshold described above must not exceed 15 percent of a banking VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 organization’s common equity tier 1 capital, as calculated after applying all regulatory adjustments and deductions required under the proposal (the 15 percent common equity tier 1 capital deduction threshold). That is, a banking organization would have been required to deduct in full the amounts of the items subject to the threshold deductions on a combined basis that exceed 17.65 percent (the proportion of 15 percent to 85 percent) of common equity tier 1 capital elements, less all regulatory adjustments and deductions required for the calculation of the 10 percent common equity tier 1 capital deduction threshold mentioned above, and less the items subject to the 10 and 15 percent deduction thresholds. As described below, the proposal required a banking organization to include the amounts of these three items that are not deducted from common equity tier 1 capital in its risk-weighted assets and assign a 250 percent risk weight to them. Some commenters asserted that subjecting DTAs resulting from net unrealized losses in an investment portfolio to the proposed 10 percent common equity tier 1 capital deduction threshold under section 22(d) of the proposal would result in a ‘‘double deduction’’ in that the net unrealized losses would have already been included in common equity tier 1 through the AOCI treatment. Under GAAP, net unrealized losses recognized in AOCI are reported net of tax effects (that is, taxes that give rise to DTAs). The tax effects related to net unrealized losses would reduce the amount of net unrealized losses reflected in common equity tier 1 capital. Given that the tax effects reduce the losses that would otherwise accrue to common equity tier 1 capital, the FDIC is of the view that subjecting these DTAs to the 10 percent limitation would not result in a ‘‘double deduction.’’ More generally, several commenters noted that the proposed 10 and 15 percent common equity tier 1 capital deduction thresholds and the proposed 250 percent risk-weight are unduly punitive. Commenters recommended several alternatives including, for example, that the agencies should only retain the 10 percent limit on each threshold item but eliminate the 15 percent aggregate limit. The FDIC believes that the proposed thresholds are appropriate as they increase the quality and loss-absorbency of regulatory capital, and are therefore adopting the proposed deduction thresholds as final. The FDIC realizes that these stricter limits on threshold items may require FDIC-supervised PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 institutions to make appropriate changes in their capital structure or business model, and thus have provided a lengthy transition period to allow FDIC-supervised institutions to adequately plan for the new limits. Under section 475 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA) (12 U.S.C. 1828 note), the amount of readily marketable purchased mortgage servicing rights (PMSRs) that a banking organization may include in regulatory capital cannot be more than 90 percent of their fair value. In addition to this statutory requirement, the general riskbased capital rules require the same treatment for all MSAs, including PMSRs. Under the proposed rule, if the amount of MSAs a banking organization deducts after applying the 10 percent and 15 percent common equity tier 1 deduction threshold is less than 10 percent of the fair value of its MSAs, then the banking organization would have deducted an additional amount of MSAs so that the total amount of MSAs deducted is at least 10 percent of the fair value of its MSAs. Some commenters requested removal of the 90 percent MSA fair value limitation, including for PMSRs under FDICIA. These commenters note that section 475(b) of FDICIA provides the agencies with authority to remove the 90 percent limitation on PMSRs, subject to a joint determination by the agencies that its removal would not have an adverse effect on the deposit insurance fund or the safety and soundness of insured depository institutions. The commenters asserted that removal of the 90 percent limitation would be appropriate because other provisions of the proposal pertaining to MSAs (including PMSRs) would require more capital to be retained even if the fair value limitation were removed. The FDIC agrees with these commenters and, pursuant to section 475(b) of FDICIA, has determined that PMSRs may be valued at not more than 100 percent of their fair value, because the capital treatment of PMSRs in the interim final rule (specifically, the deduction approach for MSAs (including PMSRs) exceeding the 10 and 15 common equity deduction thresholds and the 250 percent risk weight applied to all MSAs not subject to deduction) is more conservative than the FDICIA fair value limitation and the 100 percent risk weight applied to MSAs under existing rules and such approach will not have an adverse effect on the deposit insurance fund or safety and soundness of insured depository institutions. For the same reasons, the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations FDIC is also removing the 90 percent fair value limitation for all other MSAs. Commenters also provided a variety of recommendations related to the proposed limitations on the inclusion of MSAs in regulatory capital. For instance, some commenters advocated removing the proposed deduction provision for hedged and commercial and multifamily-related MSAs, as well as requested an exemption from the proposed deduction requirement for community banking organizations with less than $10 billion. Other commenters recommended increasing the amount of MSAs includable in regulatory capital. For example, one commenter recommended that MSAs should be limited to 100 percent of tier l capital if the underlying loans are prudently underwritten. Another commenter requested that the interim final rule permit thrifts and commercial banking organizations to include in regulatory capital MSAs equivalent to 50 and 25 percent of tier 1 capital, respectively. Several commenters also objected to the proposed risk weights for MSAs, asserting that a 250 percent risk weight for an asset that is marked-to-fair value quarterly is unreasonably punitive and that a 100 percent risk weight should apply; that MSAs allowable in capital should be increased, at a minimum, to 30 percent of tier 1 capital, with a risk weight of no greater than 50 percent for existing MSAs; that commercial MSAs should continue to be subject to the risk weighting and deduction methodology under the general risk-based capital rules; and that originated MSAs should retain the same risk weight treatment under the general risk-based capital rules given that the ability to originate new servicing to replace servicing lost to prepayment in a falling-rate environment provides for a substantial hedge. Another commenter recommended that the agencies grandfather all existing MSAs that are being fair valued on banking organizations’ balance sheets and exclude MSAs from the proposed 15 percent deduction threshold. After considering these comments, the FDIC is adopting the proposed limitation on MSAs includable in common equity tier 1 capital without change in the interim final rule. MSAs, like other intangible assets, have long been either fully or partially excluded from regulatory capital in the United States because of the high level of uncertainty regarding the ability of FDIC-supervised institutions to realize value from these assets, especially under adverse financial conditions. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 m. Netting of Deferred Tax Liabilities Against Deferred Tax Assets and Other Deductible Assets Under the proposal, banking organizations would have been permitted to net DTLs against assets (other than DTAs) subject to deduction under section 22 of the proposal, provided the DTL is associated with the asset and the DTL would be extinguished if the associated asset becomes impaired or is derecognized under GAAP. Likewise, banking organizations would be prohibited from using the same DTL more than once for netting purposes. This practice would be generally consistent with the approach that the agencies currently take with respect to the netting of DTLs against goodwill. With respect to the netting of DTLs against DTAs, under the proposal the amount of DTAs that arise from net operating loss and tax credit carryforwards, net of any related valuation allowances, and the amount of DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks, net of any related valuation allowances, could be netted against DTLs if certain conditions are met. The agencies received numerous comments recommending changes to and seeking clarification on various aspects of the proposed treatment of deferred taxes. Certain commenters asked whether deductions of significant and non-significant investments in the capital of unconsolidated financial institutions under section 22(c)(4) and 22(c)(5) of the proposed rule may be net of associated DTLs. A commenter also recommended that a banking organization be permitted to net a DTA against a fair value measurement or similar adjustment to an asset (for example, in the case of a certain cashflow hedges) or a liability (for example, in the case of changes in the fair value of a banking organization’s liabilities attributed to changes in the banking organization’s own credit risk) that is associated with the adjusted value of the asset or liability that itself is subject to a capital adjustment or deduction under the Basel III NPR. These DTAs would be derecognized under GAAP if the adjustment were reversed. Accordingly, one commenter recommended that proposed text in section 22(e) be revised to apply to netting of DTAs as well as DTLs. The FDIC agrees that for regulatory capital purposes, an FDIC-supervised institution may exclude from the deduction thresholds DTAs and DTLs PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 55389 associated with fair value measurement or similar adjustments to an asset or liability that are excluded from common equity tier 1 capital under the interim final rule. The FDIC notes that GAAP requires net unrealized gains and losses 91 recognized in AOCI to be recorded net of deferred tax effects. Moreover, under the FDIC’s general riskbased capital rules and associated regulatory reporting instructions, FDICsupervised institutions must deduct certain net unrealized gains, net of applicable taxes, and add back certain net unrealized losses, again, net of applicable taxes. Permitting FDICsupervised institutions to exclude net unrealized gains and losses included in AOCI without netting of deferred tax effects would cause an FDIC-supervised institution to overstate the amount of net unrealized gains and losses excluded from regulatory capital and potentially overstate or understate deferred taxes included in regulatory capital. Accordingly, under the interim final rule, FDIC-supervised institutions must make all adjustments to common equity tier 1 capital under section 22(b) of the interim final rule net of any associated deferred tax effects. In addition, FDICsupervised institutions may make all deductions from common equity tier 1 capital elements under section 324.22(c) and (d) of the interim final rule net of associated DTLs, in accordance with section 324.22(e) of the interim final rule. Commenters also sought clarification as to whether banking organizations may change from reporting period to reporting period their decision to net DTLs against DTAs as opposed to netting DTLs against other assets subject to deduction. Consistent with the FDIC’s general risk-based capital rules, the interim final rule permits, but does not require, an FDIC-supervised institution to net DTLs associated with items subject to regulatory deductions from common equity tier 1 capital under section 22(a). The FDIC’s general riskbased capital rules do not explicitly address whether or how often an FDICsupervised institution may change its DTL netting approach for items subject to deduction, such as goodwill and other intangible assets. If an FDIC-supervised institution elects to either net DTLs against DTAs or to net DTLs against other assets subject to deduction, the interim final rule requires that it must do so consistently. For example, an FDIC91 The word ‘‘net’’ in the term ‘‘net unrealized gains and losses’’ refers to the netting of gains and losses before tax. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55390 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations supervised institution that elects to deduct goodwill net of associated DTLs will be required to continue that practice for all future reporting periods. Under the interim final rule, an FDICsupervised institution must obtain approval from the FDIC before changing its approach for netting DTLs against DTAs or assets subject to deduction under section 324.22(a), which would be permitted, for example, in situations where an FDIC-supervised institution merges with or acquires another FDICsupervised institution, or upon a substantial change in an FDICsupervised institution’s business model. Commenters also asked whether banking organizations would be permitted or required to exclude (from the amount of DTAs subject to the threshold deductions under section 22(d) of the proposal) deferred tax assets and liabilities relating to net unrealized gains and losses reported in AOCI that are subject to: (1) regulatory adjustments to common equity tier 1 capital (section 22(b) of the proposal), (2) deductions from regulatory capital related to investments in capital instruments (section 22(c) of the proposal), and (3) items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds (section 22(d) of the proposal). Under the FDIC’s general risk-based capital rules, before calculating the amount of DTAs subject to the DTA limitations for inclusion in tier 1 capital, an FDIC-supervised institution may eliminate the deferred tax effects of any net unrealized gains and losses on AFS debt securities. An FDICsupervised institution that adopts a policy to eliminate such deferred tax effects must apply that approach consistently in all future calculations of the amount of disallowed DTAs. For purposes of the interim final rule, the FDIC has decided to permit FDICsupervised institutions to eliminate from the calculation of DTAs subject to threshold deductions under section 324.22(d) of the interim final rule the deferred tax effects associated with any items that are subject to regulatory adjustment to common equity tier 1 capital under section 324.22(b). An FDIC-supervised institution that elects to eliminate such deferred tax effects must continue that practice consistently from period to period. An FDICsupervised institution must obtain approval from the FDIC before changing its election to exclude or not exclude these amounts from the calculation of DTAs. Additionally, the FDIC has decided to require DTAs associated with any net unrealized losses or differences between the tax basis and the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 accounting basis of an asset pertaining to items (other than those items subject to adjustment under section 324.22(b)) that are: (1) subject to deduction from common equity tier 1 capital under section 324.22(c) or (2) subject to the threshold deductions under section 324.22(d) to be subject to the threshold deductions under section 324.22(d) of the interim final rule. Commenters also sought clarification as to whether banking organizations would be required to compute DTAs and DTLs quarterly for regulatory capital purposes. In this regard, commenters stated that GAAP requires annual computation of DTAs and DTLs, and that more frequent computation requirements for regulatory capital purposes would be burdensome. Some DTA and DTL items must be adjusted at least quarterly, such as DTAs and DTLs associated with certain gains and losses included in AOCI. Therefore, the FDIC expects FDIC-supervised institutions to use the DTA and DTL amounts reported in the regulatory reports for balance sheet purposes to be used for regulatory capital calculations. The interim final rule does not require FDIC-supervised institutions to perform these calculations more often than would otherwise be required in order to meet quarterly regulatory reporting requirements. A few commenters also asked whether the agencies would continue to allow banking organizations to use DTLs embedded in the carrying value of a leveraged lease to reduce the amount of DTAs subject to the 10 percent and 15 percent common equity tier 1 capital deduction thresholds contained in section 22(d) of the proposal. The valuation of a leveraged lease acquired in a business combination gives recognition to the estimated future tax effect of the remaining cash-flows of the lease. Therefore, any future tax liabilities related to an acquired leveraged lease are included in the valuation of the leveraged lease, and are not separately reported under GAAP as DTLs. This can artificially increase the amount of net DTAs reported by banking organizations that acquire a leveraged lease portfolio under purchase accounting. Accordingly, the agencies’ currently allow banking organizations to treat future taxes payable included in the valuation of a leveraged lease portfolio as a reversing taxable temporary difference available to support the recognition of DTAs.92 The 92 Temporary differences arise when financial events or transactions are recognized in one period for financial reporting purposes and in another period, or periods, for tax purposes. A reversing PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 interim final rule amends the proposal by explicitly permitting an FDICsupervised institution to use the DTLs embedded in the carrying value of a leveraged lease to reduce the amount of DTAs consistent with section 22(e). In addition, commenters asked the agencies to clarify whether a banking organization is required to deduct from the sum of its common equity tier 1 capital elements net DTAs arising from timing differences that the banking organization could realize through net operating loss carrybacks. The FDIC confirms that under the interim final rule, DTAs that arise from temporary differences that the FDIC-supervised institution may realize through net operating loss carrybacks are not subject to the 10 percent and 15 percent common equity tier 1 capital deduction thresholds (deduction thresholds). This is consistent with the FDIC’s general risk-based capital rules, which do not limit DTAs that can potentially be realized from taxes paid in prior carryback years. However, consistent with the proposal, the interim final rule requires that FDIC-supervised institutions deduct from common equity tier 1 capital elements the amount of DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks that exceed the deduction thresholds under section 324.22(d) of the interim final rule. Some commenters recommended that the agencies retain the provision in the agencies’ general risk-based capital rules that permits a banking organization to measure the amount of DTAs subject to inclusion in tier 1 capital by the amount of DTAs that the banking organization could reasonably be expected to realize within one year, based on its estimate of future taxable income.93 In addition, commenters argued that the full deduction of net operating loss and tax credit carryforwards from common equity tier 1 capital is an inappropriate reaction to concerns about DTAs as an element of capital, and that there are appropriate circumstances where an taxable temporary difference is a temporary difference that produces additional taxable income future periods. 93 Under the FDIC’s general risk-based capital rules, a banking organization generally must deduct from tier 1 capital DTAs that are dependent upon future taxable income, which exceed the lesser of either: (1) the amount of DTAs that the bank could reasonably expect to realize within one year of the quarter-end regulatory report, based on its estimate of future taxable income for that year, or (2) 10 percent of tier 1 capital, net of goodwill and all intangible assets other than purchased credit card relationships, and servicing assets. See 12 CFR part 325, appendix A section I.A.1.iii(a) (state nonmember banks), and 12 CFR 390.465(a)(2)(vii) (state savings associations). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations institution should be allowed to include the value of its DTAs related to net operating loss carryforwards in regulatory capital. The deduction thresholds for DTAs in the interim final rule are intended to address the concern that GAAP standards for DTAs could allow FDICsupervised institutions to include in regulatory capital excessive amounts of DTAs that are dependent upon future taxable income. The concern is particularly acute when FDICsupervised institutions begin to experience financial difficulty. In this regard, the FDIC observed that as the recent financial crisis began, many FDIC-supervised institutions that had included DTAs in regulatory capital based on future taxable income were no longer able to do so because they projected more than one year of losses for tax purposes. The FDIC notes that under the proposal and interim final rule, DTAs that arise from temporary differences that the FDIC-supervised institution may realize through net operating loss carrybacks are not subject to the deduction thresholds and will be subject to a risk weight of 100 percent. Further, FDIC-supervised institutions will continue to be permitted to include some or all of their DTAs that are associated with timing differences that are not realizable through net operating loss carrybacks in regulatory capital. In this regard, the interim final rule strikes an appropriate balance between prudential concerns and practical considerations about the ability of FDICsupervised institutions to realize DTAs. The proposal stated: ‘‘A [BANK] is not required to deduct from the sum of its common equity tier 1 capital elements net DTAs arising from timing differences that the [BANK] could realize through net operating loss carrybacks (emphasis added).’’ 94 Commenters requested that the agencies clarify that the word ‘‘net’’ in this sentence was intended to refer to DTAs ‘‘net of valuation allowances.’’ The FDIC has amended section 22(e) of the interim final rule text to clarify that the word ‘‘net’’ in this instance was intended to refer to DTAs ‘‘net of any related valuation allowances and net of DTLs.’’ In addition, a commenter requested that the agencies remove the condition in section 324.22(e) of the interim final rule providing that only DTAs and DTLs that relate to taxes levied by the same taxing authority may be offset for purposes of the deduction of DTAs. This 94 See footnote 14, 77 FR 52863 (August 30, 2012). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 commenter notes that under a GAAP, a company generally calculates its DTAs and DTLs relating to state income tax in the aggregate by applying a blended state rate. Thus, FDIC-supervised institutions do not typically track DTAs and DTLs on a state-by-state basis for financial reporting purposes. The FDIC recognizes that under GAAP, if the tax laws of the relevant state and local jurisdictions do not differ significantly from federal income tax laws, then the calculation of deferred tax expense can be made in the aggregate considering the combination of federal, state, and local income tax rates. The rate used should consider whether amounts paid in one jurisdiction are deductible in another jurisdiction. For example, since state and local taxes are deductible for federal purposes, the aggregate combined rate would generally be (1) the federal tax rate plus (2) the state and local tax rates, minus (3) the federal tax effect of the deductibility of the state and local taxes at the federal tax rate. Also, for financial reporting purposes, consistent with GAAP, the FDIC allows FDICsupervised institutions to offset DTAs (net of valuation allowance) and DTLs related to a particular tax jurisdiction. Moreover, for regulatory reporting purposes, consistent with GAAP, the FDIC requires separate calculations of income taxes, both current and deferred amounts, for each tax jurisdiction. Accordingly, FDIC-supervised institutions must calculate DTAs and DTLs on a state-by-state basis for financial reporting purposes under GAAP and for regulatory reporting purposes. 3. Investments in Hedge Funds and Private Equity Funds Pursuant to Section 13 of the Bank Holding Company Act Section 13 of the Bank Holding Company Act, which was added by section 619 of the Dodd-Frank Act, contains a number of restrictions and other prudential requirements applicable to any ‘‘banking entity’’ 95 that engages in proprietary trading or has certain interests in, or relationships 95 See 12 U.S.C. 1851. The term ‘‘banking entity’’ is defined in section 13(h)(1) of the Bank Holding Company Act, as amended by section 619 of the Dodd-Frank Act. See 12 U.S.C. 1851(h)(1). The statutory definition includes any insured depository institution (other than certain limited purpose trust institutions), any company that controls an insured depository institution, any company that is treated as a bank holding company for purposes of section 8 of the International Banking Act of 1978 (12 U.S.C. 3106), and any affiliate or subsidiary of any of the foregoing. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 55391 with, a hedge fund or a private equity fund.96 Section 13(d)(3) of the Bank Holding Company Act provides that the relevant agencies ‘‘shall . . . adopt rules imposing additional capital requirements and quantitative limitations, including diversification requirements, regarding activities permitted under [Section 13] if the appropriate Federal banking agencies, the SEC, and the Commodity Futures Trading Commission (CFTC) determine that additional capital and quantitative limitations are appropriate to protect the safety and soundness of banking entities engaged in such activities.’’ The DoddFrank Act also added section 13(d)(4)(B)(iii) to the Bank Holding Company Act, which pertains to investments in a hedge fund or private equity fund organized and offered by a banking entity and provides for deductions from the assets and tangible equity of the banking entity for these investments in hedge funds or private equity funds. On November 7, 2011, the agencies and the SEC issued a proposal to implement Section 13 of the Bank Holding Company Act.97 The proposal would require a ‘‘banking entity’’ to deduct from tier 1 capital its investments in a hedge fund or a private equity fund that the banking entity organizes and offers.98 The FDIC intends to address this capital requirement, as it applies to FDIC-supervised institutions, within the context of its entire regulatory capital framework, so that its potential interaction with all other regulatory capital requirements can be fully assessed. VI. Denominator Changes Related to the Regulatory Capital Changes Consistent with Basel III, the proposal provided a 250 percent risk weight for the portion of the following items that are not otherwise subject to deduction: (1) MSAs, (2) DTAs arising from temporary differences that a banking organization could not realize through net operating loss carrybacks (net of any related valuation allowances and net of DTLs, as described in section 324.22(e) 96 Section 13 of the Bank Holding Company Act defines the terms ‘‘hedge fund’’ and ‘‘private equity fund’’ as ‘‘an issuer that would be an investment company, as defined in the Investment Company Act of 1940, but for section 3(c)(1) or 3(c)(7) of that Act, or such similar funds as the [relevant agencies] may, by rule . . . determine.’’ See 12 U.S.C. 1851(h)(2). 97 See 76 FR 68846 (November 7, 2011). On February 14, 2012, the CFTC published a substantively similar proposed rule implementing section 13 of the Bank Holding Company Act. See 77 FR 8332 (February 14, 2012). 98 See Id., § 324.12(d). E:\FR\FM\10SER2.SGM 10SER2 55392 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 of the rule), and (3) significant investments in the capital of unconsolidated financial institutions in the form of common stock that are not deducted from tier 1 capital. Several commenters objected to the proposed 250 percent risk weight and stated that the agencies instead should apply a 100 percent risk weight to the amount of these assets below the deduction thresholds. Commenters stated that the relatively high risk weight would drive business, particularly mortgage servicing, out of the banking sector and into unregulated shadow banking entities. After considering the comments, the FDIC continues to believe that the 250 percent risk weight is appropriate in light of the relatively greater risks inherent in these assets, as described above. These risks are sufficiently significant that concentrations in these assets warrant deductions from capital, and any exposure to these assets merits a higher-than 100 percent risk weight. Therefore, the interim final rule adopts the proposed treatment without change. The interim final rule, consistent with the proposal, requires FDIC-supervised institutions to apply a 1,250 percent risk weight to certain exposures that were subject to deduction under the general risk-based capital rules. Therefore, for purposes of calculating total riskweighted assets, the interim final rule requires an FDIC-supervised institution to apply a 1,250 percent risk weight to the portion of a credit-enhancing interest-only strip (CEIO) that does not constitute an after-tax-gain-on-sale. VII. Transition Provisions The proposal established transition provisions for: (i) minimum regulatory capital ratios; (ii) capital conservation and countercyclical capital buffers; (iii) regulatory capital adjustments and deductions; (iv) non-qualifying capital instruments; and (v) the supplementary leverage ratio. Most of the transition periods in the proposal began on January 1, 2013, and would have provided banking organizations between three and six years to comply with the requirements in the proposed rule. Among other provisions, the proposal would have provided a transition period for the phase-out of non-qualifying capital instruments from regulatory capital under either a three- or ten-year transition period based on the organization’s consolidated total assets. The proposed transition provisions were designed to give banking organizations sufficient time to adjust to the revised capital framework while minimizing the potential impact that implementation could have on their ability to lend. The VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 transition provisions also were designed to ensure compliance with the DoddFrank Act. As a result, they would have been, in certain circumstances, more stringent than the transition arrangements set forth in Basel III. The agencies received multiple comments on the proposed transition framework. Most of the commenters characterized the proposed transition schedule for the minimum capital ratios as overly aggressive and expressed concern that banking organizations would not be able to meet the increased capital requirements (in accordance with the transition schedule) in the current economic environment. Commenters representing community banking organizations argued that such organizations generally have less access to the capital markets relative to larger banking organizations and, therefore, usually increase capital primarily by accumulating retained earnings. Accordingly, these commenters requested additional time to satisfy the minimum capital requirements under the proposed rule, and specifically asked the agencies to provide banking organizations until January 1, 2019 to comply with the proposed minimum capital requirements. Other commenters commenting on behalf of community banking organizations, however, considered the transition period reasonable. One commenter requested a shorter implementation timeframe for the largest banking organizations, asserting that these organizations already comply with the proposed standards. Another commenter suggested removing the transition period and delaying the effective date until the industry more fully recovers from the recent crisis. According to this commenter, the effective date should be delayed to ensure that implementation of the rule would not result in a contraction in aggregate U.S. lending capacity. A number of commenters suggested an effective date based on the publication date of the interim final rule in the Federal Register. According to the commenters, such an approach would provide banking organizations with certainty regarding the effective date of the interim final rule that would allow them to plan for and implement any required system and process changes. One commenter requested simultaneous implementation of all three proposals because some elements of the Standardized Approach NPR affect the implementation of the Basel III NPR. A number of commenters also requested additional time to comply with the proposed capital conservation buffer. According to these commenters, PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 implementation of the capital conservation buffer would make the equity instruments of banking organizations less attractive to potential investors and could even encourage divestment among existing shareholders. Therefore, the commenters maintained, the proposed rule would require banking organizations to raise capital by accumulating retained earnings, and doing so could take considerable time in the current economic climate. For these reasons, the commenters asked the agencies to delay implementation of the capital conservation buffer for an additional five years to provide banking organizations sufficient time to increase retained earnings without curtailing lending activity. Other commenters requested that the agencies fully exempt banks with total consolidated assets of $50 billion or less from the capital conservation buffer, further recommending that if the agencies declined to make this accommodation then the phase-in period for the capital conservation buffer should be extended by at least three years to January 1, 2022, to provide community banking organizations with enough time to meet the new regulatory minimums. A number of commenters noted that Basel III phases in the deduction of goodwill from 2014 to 2018, and requested that the agencies adopt this transition for goodwill in the United States to prevent U.S. institutions from being disadvantaged relative to their global competitors. Many commenters objected to the proposed schedule for the phase out of TruPS from tier 1 capital, particularly for banking organizations with less than $15 billion in total consolidated assets. As discussed in more detail in section V.A., the commenters requested that the agencies grandfather existing TruPS issued by depository institution holding companies with less than $15 billion and 2010 MHCs, as permitted by section 171 of the Dodd-Frank Act. In general, these commenters characterized TruPS as a relatively safe, low-cost form of capital issued in full compliance with regulatory requirements that would be difficult for smaller institutions to replace in the current economic environment. Some commenters requested that community banking organizations be exempt from the phaseout of TruPS and from the phase-out of cumulative preferred stock for these reasons. Another commenter requested that the agencies propose that institutions with under $5 billion in total consolidated assets be allowed to continue to include TruPS in regulatory E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations capital at full value until the call or maturity of the TruPS instrument. Some commenters encouraged the agencies to adopt the ten-year transition schedule under Basel III for TruPS of banking organizations with total consolidated assets of more than $15 billion. These commenters asserted that the proposed transition framework for TruPS would disadvantage U.S. banking organizations relative to foreign competitors. One commenter expressed concern that the transition framework under the proposed rule also would disrupt payment schedules for TruPS CDOs. Commenters proposed several additional alternative transition frameworks for TruPS. For example, one commenter recommended a 10 percent annual reduction in the amount of TruPS banking organizations with $15 billion or more of total consolidated assets may recognize in tier 1 capital beginning in 2013, followed by a phaseout of the remaining amount in 2015. According to the commenter, such a framework would comply with the Dodd-Frank Act and allow banking organizations more time to replace TruPS. Another commenter suggested that the interim final rule allow banking organizations to progressively reduce the amount of TruPS eligible for inclusion in tier 1 capital by 1.25 to 2.5 percent per year. One commenter encouraged the agencies to avoid penalizing banking organizations that elect to redeem TruPS during the transition period. Specifically, the commenter asked the agencies to revise the proposed transition framework so that any TruPS redeemed during the transition period would not reduce the total amount of TruPS eligible for inclusion in tier 1 capital. Under such an approach, the amount of TruPS eligible for inclusion in tier 1 capital during the transition period would equal the lesser of: (a) the remaining outstanding balance or (b) the percentage decline factor times the balance outstanding at the time the interim final rule is published in the Federal Register. One commenter encouraged the agencies to allow a banking organization that grows to more than $15 billion in total assets as a result of merger and acquisition activity to remain subject to the proposed transition framework for non-qualifying capital instruments issued by organizations with less than $15 billion in total assets. According to the commenter, such an approach should apply to either the buyer or seller in the transaction. Other commenters asked the agencies to allow banking organizations whose total VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 consolidated assets grew to over $15 billion just prior to May 19, 2010, and whose asset base subsequently declined below that amount to include all TruPS in their tier 1 capital during 2013 and 2014 on the same basis as institutions with less than $15 billion in total consolidated assets and, thereafter, be subject to the deductions required by section 171 of the Dodd-Frank Act. Commenters representing advanced approaches banking organizations generally objected to the proposed transition framework for the supplementary leverage ratio, and requested a delay in its implementation. For example, one commenter recommended the agencies defer implementation of the supplementary leverage ratio until the agencies have had an opportunity to consider whether it is likely to result in regulatory arbitrage and international competitive inequality as a result of differences in national accounting frameworks and standards. Another commenter asked the agencies to delay implementation of the supplementary leverage ratio until no earlier than January 1, 2018, as provided in Basel III, or until the BCBS completes its assessment and reaches international agreement on any further adjustments. A few commenters, however, supported the proposed transition framework for the supplementary leverage ratio because it could be used as an important regulatory tool to ensure there is sufficient capital in the financial system. After considering the comments and the potential challenges some banking organizations may face in complying with the interim final rule, the FDIC has agreed to delay the compliance date for FDIC-supervised institutions that are not advanced approaches FDICsupervised institutions until January 1, 2015. Therefore, such entities are not required to calculate their regulatory capital requirements under the interim final rule until January 1, 2015. Thereafter, these FDIC-supervised institutions must calculate their regulatory capital requirements in accordance with the interim final rule, subject to the transition provisions set forth in subpart G of the interim final rule. The interim final rule also establishes the effective date of the interim final rule for advanced approaches FDICsupervised institutions as January 1, 2014. In accordance with Tables 5–17 below, the transition provisions for the regulatory capital adjustments and deductions in the interim final rule commence either one or two years later than in the proposal, depending on PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 55393 whether the FDIC-supervised institution is or is not an advanced approaches FDIC-supervised institution. The December 31, 2018, end-date for the transition period for regulatory capital adjustments and deductions is the same under the interim final rule as under the proposal. A. Transitions Provisions for Minimum Regulatory Capital Ratios In response to the commenters’ concerns, the interim final rule modifies the proposed transition provisions for the minimum capital requirements. FDIC-supervised institutions that are not advanced approaches FDICsupervised institutions are not required to comply with the minimum capital requirements until January 1, 2015. This is a delay of two years from the beginning of the proposed transition period. Because the FDIC is not requiring compliance with the interim final rule until January 1, 2015 for these entities, there is no additional transition period for the minimum regulatory capital ratios. This approach should give FDIC-supervised institutions sufficient time to raise or accumulate any additional capital needed to satisfy the new minimum requirements and upgrade internal systems without adversely affecting their lending capacity. Under the interim final rule, an advanced approaches FDIC-supervised institution must comply with minimum common equity tier 1, tier 1, and total capital ratio requirements of 4.0 percent, 5.5 percent, and 8.0 percent during calendar year 2014, and 4.5 percent, 6.0 percent, 8.0 percent, respectively, beginning January 1, 2015. These transition provisions are consistent with those under Basel III for internationallyactive FDIC-supervised institutions. During calendar year 2014, advanced approaches FDIC-supervised institutions must calculate their minimum common equity tier 1, tier 1, and total capital ratios using the definitions for the respective capital components in section 20 of the interim final rule (adjusted in accordance with the transition provisions for regulatory adjustments and deductions and for the non-qualifying capital instruments for advanced approaches FDIC-supervised institutions described in this section). B. Transition Provisions for Capital Conservation and Countercyclical Capital Buffers The FDIC has finalized transitions for the capital conservation and countercyclical capital buffers as proposed. The capital conservation buffer transition period begins in 2016, E:\FR\FM\10SER2.SGM 10SER2 55394 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations a full year after FDIC-supervised institutions that are not advanced approaches FDIC-supervised institutions are required to comply with the interim final rule, and two years after advanced approaches FDICsupervised institutions are required to comply with the interim final rule. The FDIC believes that this is an adequate time frame to meet the buffer level necessary to avoid restrictions on capital distributions. Table 5 shows the regulatory capital levels advanced approaches FDIC-supervised institutions generally must satisfy to avoid limitations on capital distributions and discretionary bonus payments during the applicable transition period, from January 1, 2016 until January 1, 2019. TABLE 5—REGULATORY CAPITAL LEVELS FOR ADVANCED APPROACHES FDIC-SUPERVISED INSTITUTIONS Jan. 1, 2014 (percent) Capital conservation buffer ...................... Minimum common equity tier 1 capital ratio + capital conservation buffer ........ Minimum tier 1 capital ratio + capital conservation buffer ..................................... Minimum total capital ratio + capital conservation buffer ..................................... Maximum potential countercyclical capital buffer .................................................... Jan. 1, 2015 (percent) ........................ ........................ 0.625 1.25 1.875 2.5 4.0 4.5 5.125 5.75 6.375 7.0 5.5 6.0 6.625 7.25 7.875 8.5 8.0 8.0 8.625 9.25 9.875 10.5 ........................ ........................ 0.625 1.25 1.875 2.5 Table 6 shows the regulatory capital levels FDIC-supervised institutions that are not advanced approaches FDIC- Jan. 1, 2016 (percent) supervised institutions generally must satisfy to avoid limitations on capital distributions and discretionary bonus Jan. 1, 2017 (percent) Jan. 1, 2018 (percent) Jan. 1, 2019 (percent) payments during the applicable transition period, from January 1, 2016 until January 1, 2019. TABLE 6—REGULATORY CAPITAL LEVELS FOR NON-ADVANCED APPROACHES FDIC-SUPERVISED INSTITUTIONS Jan. 1, 2015 (percent) Capital conservation buffer .................................................. Minimum common equity tier 1 capital ratio + capital conservation buffer ................................................................. Minimum tier 1 capital ratio + capital conservation buffer .. Minimum total capital ratio + capital conservation buffer .... As provided in Table 5 and Table 6, the transition period for the capital conservation and countercyclical capital buffers does not begin until January 1, 2016. During this transition period, from January 1, 2016 through December 31, Jan. 1, 2016 (percent) Jan. 1, 2017 (percent) Jan. 1, 2018 (percent) Jan. 1, 2019 (percent) ........................ 0.625 1.25 1.875 2.5 4.5 6.0 8.0 5.125 6.625 8.625 5.75 7.25 9.25 6.375 7.875 9.875 7.0 8.5 10.5 2018, all FDIC-supervised institutions are subject to transition arrangements with respect to the capital conservation buffer as outlined in more detail in Table 7. For advanced approaches FDICsupervised institutions, the countercyclical capital buffer will be phased in according to the transition schedule set forth in Table 7 by proportionately expanding each of the quartiles of the capital conservation buffer. TABLE 7—TRANSITION PROVISION FOR THE CAPITAL CONSERVATION AND COUNTERCYCLICAL CAPITAL BUFFER Maximum payout ratio (as a percentage of eligible retained income) Capital conservation buffer Calendar year 2016 ..................... emcdonald on DSK67QTVN1PROD with RULES2 Transition period Greater than 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount), and greater than 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount), and greater than 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.156 percent (plus 6.25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.156 percent (plus 6.25 percent of any applicable countercyclical capital buffer amount). No payout ratio limitation applies Greater than 1.25 percent (plus 50 percent of any applicable countercyclical capital buffer amount). No payout ratio limitation applies Calendar year 2017 ..................... VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 60 percent 40 percent 20 percent 0 percent 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55395 TABLE 7—TRANSITION PROVISION FOR THE CAPITAL CONSERVATION AND COUNTERCYCLICAL CAPITAL BUFFER— Continued Transition period Maximum payout ratio (as a percentage of eligible retained income) Capital conservation buffer Less than or equal to 1.25 percent (plus 50 percent of any applicable countercyclical capital buffer amount), and greater than 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount), and greater than 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Calendar year 2018 ..................... 60 percent Greater than 1.875 percent (plus 75 percent of any applicable countercyclical capital buffer amount). Less than or equal to 1.875 percent (plus 75 percent of any applicable countercyclical capital buffer amount), and greater than 1.406 percent (plus 56.25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 1.406 percent (plus 56.25 percent of any applicable countercyclical capital buffer amount), and greater than 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount). No payout ratio limitation applies emcdonald on DSK67QTVN1PROD with RULES2 C. Transition Provisions for Regulatory Capital Adjustments and Deductions To give sufficient time to FDICsupervised institutions to adapt to the new regulatory capital adjustments and deductions, the interim final rule incorporates transition provisions for such adjustments and deductions that commence at the time at which the FDIC-supervised institution becomes subject to the interim final rule. As explained above, the interim final rule maintains the proposed transition periods, except for non-qualifying capital instruments as described below. FDIC-supervised institutions that are not advanced approaches FDICsupervised institutions will begin the transitions for regulatory capital adjustments and deductions on January 1, 2015. From January 1, 2015, through December 31, 2017, these FDICsupervised institutions will be required to make the regulatory capital adjustments to and deductions from regulatory capital in section 324.22 of the interim final rule in accordance with the proposed transition provisions for such adjustments and deductions VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 outlined below. Starting on January 1, 2018, these FDIC-supervised institutions will apply all regulatory capital adjustments and deductions as set forth in section 324.22 of the interim final rule. For an advanced approaches FDICsupervised institution, the first year of transition for adjustments and deductions begins on January 1, 2014. From January 1, 2014, through December 31, 2017, such FDICsupervised institutions will be required to make the regulatory capital adjustments to and deductions from regulatory capital in section 22 of the interim final rule in accordance with the proposed transition provisions for such adjustments and deductions outlined below. Starting on January 1, 2018, advanced approaches FDIC-supervised institutions will be subject to all regulatory capital adjustments and deductions as described in section 22 of the interim final rule. 1. Deductions for Certain Items Under Section 22(a) of the Interim Final Rule The interim final rule provides that FDIC-supervised institutions will PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 40 percent 20 percent 0 percent 60 percent 40 percent 20 percent 0 percent deduct from common equity tier 1 capital or tier 1 capital in accordance with Table 8 below: (1) goodwill (section 324.22(a)(1)), (2) DTAs that arise from operating loss and tax credit carryforwards (section 22(a)(3)), (3) gain-on-sale associated with a securitization exposure (section 324.22(a)(4)), (4) defined benefit pension fund assets (section 324.22(a)(5)), (5) for an advanced approaches FDIC-supervised institution that has completed the parallel run process and that has received notification from the FDIC pursuant to section 121(d) of subpart E of the interim final rule, expected credit loss that exceeds eligible credit reserves (section 324.22(a)(6)), and (6) financial subsidiaries (section 324.22(a)(7)). During the transition period, the percentage of these items that is not deducted from common equity tier 1 capital must be deducted from tier 1 capital. E:\FR\FM\10SER2.SGM 10SER2 55396 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 8—TRANSITION DEDUCTIONS UNDER SECTION 324.22(a)(1) AND SECTIONS 324.22(a)(3)–(a)(7) OF THE INTERIM FINAL RULE Transition deductions under section 324.22(a)(1) and (7) Transition period Transition deductions under sections 324.22(a)(3)– (a)(6) Percentage of the deductions from common equity tier 1 capital Percentage of the deductions from common equity tier 1 capital 100 100 100 100 100 20 40 60 80 100 January 1, 2014 to December 31, 2014 (advanced approaches FDIC-supervised institutions only) ........................................... January 1, 2015 to December 31, 2015 ..................................... January 1, 2016 to December 31, 2016 ..................................... January 1, 2017 to December 31, 2017 ..................................... January 1, 2018 and thereafter ................................................... Beginning on January 1, 2014, advanced approaches FDIC-supervised institutions will be required to deduct the full amount of goodwill (which may be net of any associated DTLs), including any goodwill embedded in the valuation of significant investments in the capital of unconsolidated financial institutions, from common equity tier 1 capital. All other FDICsupervised institutions will begin deducting goodwill (which may be net of any associated DTLs), including any goodwill embedded in the valuation of significant investments in the capital of unconsolidated financial institutions from common equity tier 1 capital, on January 1, 2015. This approach is stricter than the Basel III approach, which transitions the goodwill deduction from common equity tier 1 capital through 2017. However, as discussed in section V.B of this preamble, under U.S. law, goodwill cannot be included in an FDICsupervised institution’s regulatory capital and has not been included in FDIC-supervised institutions’ regulatory capital under the general risk-based capital rules.99 Additionally, the FDIC believes that fully deducting goodwill from common equity tier 1 capital from the date an FDIC-supervised institution must comply with the interim final rule will result in a more appropriate measure of common equity tier 1 capital. Beginning on January 1, 2014, a national bank or insured state bank subject to the advanced approaches rule will be required to deduct 100 percent of the aggregate amount of its outstanding equity investment, including the retained earnings, in any financial subsidiary from common equity tier 1 capital. All other national and insured state banks will begin deducting 100 percent of the aggregate amount of their outstanding equity investment, including the retained earnings, in a financial subsidiary from common equity tier 1 capital on January 1, 2015. The deduction from common equity tier 1 capital represents a change from the general risk-based capital rules, which require the deduction to be made from total capital. As explained in section V.B of this preamble, similar to goodwill, this deduction is required by statute and is consistent with the general risk-based capital rules. Accordingly, the deduction is not subject to a transition period. Percentage of the deductions from tier 1 capital 80 60 40 20 0 The interim final rule also retains the existing deduction for state savings associations’ investments in, and extensions of credit to, non-includable subsidiaries at 12 CFR 324.22(a)(8).100 This deduction is required by statute 101 and is consistent with the general riskbased capital rules. Accordingly, the deduction is not subject to a transition period and must be fully deducted in the first year that the state savings association becomes subject to the interim final rule. 2. Deductions for Intangibles Other Than Goodwill and Mortgage Servicing Assets For deductions of intangibles other than goodwill and MSAs, including purchased credit-card relationships (PCCRs) (see section 324.22(a)(2) of the interim final rule), the applicable transition period in the interim final rule is set forth in Table 9. During the transition period, any of these items that are not deducted will be subject to a risk weight of 100 percent. Advanced approaches FDIC-supervised institutions will begin the transition on January 1, 2014, and other FDICsupervised institutions will begin the transition on January 1, 2015. TABLE 9—TRANSITION DEDUCTIONS UNDER SECTION 22(a)(2) OF THE PROPOSAL Transition deductions under section 22(a)(2)—Percentage of the deductions from common equity tier 1 capital emcdonald on DSK67QTVN1PROD with RULES2 Transition period January January January January January 1, 1, 1, 1, 1, 2014 2015 2016 2017 2018 to December 31, 2014 (advanced approaches FDIC-supervised institutions only) ................................ to December 31, 2015 ............................................................................................................................. to December 31, 2016 ............................................................................................................................. to December 31, 2017 ............................................................................................................................. and thereafter ........................................................................................................................................... 99 See 12 U.S.C. 1464(t)(9)(A) and 12 U.S.C. 1828(n). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 100 For additional information on this deduction, see section V.B ‘‘Activities by savings association PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 20 40 60 80 100 subsidiaries that are impermissible for national banks’’ of this preamble. 101 See 12 U.S.C. 1464(t)(5). E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 3. Regulatory Adjustments Under Section 22(b)(1) of the Interim Final Rule During the transition period, any of the adjustments required under section 324.22(b)(1) that are not applied to common equity tier 1 capital must be applied to tier 1 capital instead, in accordance with Table 10. Advanced approaches FDIC-supervised 55397 institutions will begin the transition on January 1, 2014, and other FDICsupervised institutions will begin the transition on January 1, 2015. TABLE 10—TRANSITION ADJUSTMENTS UNDER SECTION 324.22(b)(1) Transition adjustments under section 324.22(b)(1) Percentage of the adjustment applied to common equity tier 1 capital Transition period January January January January January 1, 1, 1, 1, 1, Percentage of the adjustment applied to tier 1 capital 20 40 60 80 100 80 60 40 20 0 2014, to December 31, 2014 (advanced approaches FDIC-supervised institutions only) ....... 2015, to December 31, 2015 .................................................................................................... 2016, to December 31, 2016 .................................................................................................... 2017, to December 31, 2017 .................................................................................................... 2018 and thereafter ................................................................................................................... 4. Phase-Out of Current Accumulated Other Comprehensive Income Regulatory Capital Adjustments Under the interim final rule, the transition period for the inclusion of the aggregate amount of: (1) Unrealized gains on available-for-sale equity securities; (2) net unrealized gains or losses on available-for-sale debt securities; (3) any amounts recorded in AOCI attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (excluding, at the FDICsupervised institution’s option, the portion relating to pension assets deducted under section 324.22(a)(5)); (4) accumulated net gains or losses on cashflow hedges related to items that are reported on the balance sheet at fair value included in AOCI; and (5) net unrealized gains or losses on held-tomaturity securities that are included in AOCI (transition AOCI adjustment amount) only applies to advanced approaches FDIC-supervised institutions and other FDIC-supervised institutions that have not made an AOCI opt-out election under section 324.22(b)(2) of the rule and described in section V.B of this preamble. Advanced approaches FDIC-supervised institutions will begin the phase out of the current AOCI regulatory capital adjustments on January 1, 2014; other FDIC-supervised institutions that have not made the AOCI opt-out election will begin making these adjustments on January 1, 2015. Specifically, if an FDIC- supervised institution’s transition AOCI adjustment amount is positive, it will adjust its common equity tier 1 capital by deducting the appropriate percentage of such aggregate amount in accordance with Table 11 below. If such amount is negative, it will adjust its common equity tier 1 capital by adding back the appropriate percentage of such aggregate amount in accordance with Table 11 below. The agencies did not include net unrealized gains or losses on held-tomaturity securities that are included in AOCI as part of the transition AOCI adjustment amount in the proposal. However, the FDIC has decided to add such an adjustment as it reflects the FDIC’s approach towards AOCI adjustments in the general risk-based capital rules. TABLE 11—PERCENTAGE OF THE TRANSITION AOCI ADJUSTMENT AMOUNT Percentage of the transition AOCI adjustment amount to be applied to common equity tier 1 capital Transition period emcdonald on DSK67QTVN1PROD with RULES2 January 1, 2014, to December 31, 2014 (advanced approaches FDIC-supervised institutions only) ............................... January 1, 2015, to December 31, 2015 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) .......................................................................................................... January 1, 2016, to December 31, 2016 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) .......................................................................................................... January 1, 2017, to December 31, 2017 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) .......................................................................................................... January 1, 2018 and thereafter (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) .......................................................................................................................... Beginning on January 1, 2018, advanced approaches FDIC-supervised institutions and other FDIC-supervised institutions that have not made an AOCI opt-out election must include AOCI in common equity tier 1 capital, with the exception of accumulated net gains and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 losses on cash-flow hedges related to items that are not measured at fair value on the balance sheet, which must be excluded from common equity tier 1 capital. PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 80 60 40 20 0 5. Phase-Out of Unrealized Gains on Available for Sale Equity Securities in Tier 2 Capital Advanced approaches FDICsupervised institutions and FDICsupervised institutions not subject to the advanced approaches rule that have E:\FR\FM\10SER2.SGM 10SER2 55398 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations not made an AOCI opt-out election will decrease the amount of unrealized gains on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures currently held in tier 2 capital during the transition period in accordance with Table 12. An advanced approaches FDIC-supervised institution will begin the adjustments on January 1, 2014; all other FDIC-supervised institutions that have not made an AOCI opt-out election will begin the adjustments on January 1, 2015. TABLE 12—PERCENTAGE OF UNREALIZED GAINS ON AFS PREFERRED STOCK CLASSIFIED AS AN EQUITY SECURITY UNDER GAAP AND AFS EQUITY EXPOSURES THAT MAY BE INCLUDED IN TIER 2 CAPITAL Percentage of unrealized gains on AFS preferred stock classified as an equity security under GAAP and AFS equity exposures that may be included in tier 2 capital Transition period January 1, 2014, to December 31, 2014 (advanced approaches FDIC-supervised institutions only) January 1, 2015, to December 31, 2015 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) ........................................... January 1, 2016, to December 31, 2016 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) ........................................... January 1, 2017, to December 31, 2017 (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) ........................................... January 1, 2018 and thereafter (advanced approaches FDIC-supervised institutions and FDIC-supervised institutions that have not made an opt-out election) ......................................................... 6. Phase-in of Deductions Related to Investments in Capital Instruments and to the Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital Deduction Thresholds (Sections 22(c) and 22(d)) of the Interim final rule Under the interim final rule, an FDICsupervised institution must calculate the appropriate deductions under sections 324.22(c) and 324.22(d) of the rule related to investments in the capital of unconsolidated financial institutions and to the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds (that is, MSAs, DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock) as set forth in Table 13. Advanced approaches FDIC-supervised institutions will apply the transition framework beginning January 1, 2014. All other FDICsupervised institutions will begin applying the transition framework on January 1, 2015. During the transition period, an FDIC-supervised institution 36 27 18 9 0 will make the aggregate common equity tier 1 capital deductions related to these items in accordance with the percentages outlined in Table 13 and must apply a 100 percent risk-weight to the aggregate amount of such items that is not deducted. On January 1, 2018, and thereafter, each FDIC-supervised institution will be required to apply a 250 percent risk weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted from common equity tier 1 capital. TABLE 13—TRANSITION DEDUCTIONS UNDER SECTIONS 22(c) AND 22(d) OF THE PROPOSAL Transition deductions under sections 22(c) and 22(d)—Percentage of the deductions from common equity tier 1 capital Transition period emcdonald on DSK67QTVN1PROD with RULES2 January January January January January 1, 1, 1, 1, 1, 2014, to December 31, 2014 (advanced approaches FDIC-supervised institutions only) 2015, to December 31, 2015 ............................................................................................ 2016, to December 31, 2016 ............................................................................................ 2017, to December 31, 2017 ............................................................................................ 2018 and thereafter ........................................................................................................... During the transition period, FDICsupervised institutions will phase in the deduction requirement for the amounts of DTAs arising from temporary differences that could not be realized through net operating loss carryback, MSAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock that exceed the 10 percent threshold in section 22(d) according to Table 13. During the transition period, FDICsupervised institutions will not be subject to the methodology to calculate the 15 percent common equity VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 deduction threshold for DTAs arising from temporary differences that could not be realized through net operating loss carrybacks, MSAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock described in section 324.22(d) of the interim final rule. During the transition period, an FDIC-supervised institution will be required to deduct from its common equity tier 1 capital the percentage as set forth in Table 13 of the amount by which the aggregate sum of the items subject to the 10 and 15 percent common equity tier 1 capital deduction PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 20 40 60 80 100 thresholds exceeds 15 percent of the sum of the FDIC-supervised institution’s common equity tier 1 capital after making the deductions and adjustments required under sections 324.22(a) through (c). D. Transition Provisions for NonQualifying Capital Instruments Under the interim final rule, beginning on January 1, 2014, an advanced approaches depository institution and beginning on January 1, 2015, a depository institution that is not a depository institution subject to the advanced approaches rule may include E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations in regulatory capital debt or equity instruments issued prior to September 12, 2010 that do not meet the criteria for additional tier 1 or tier 2 capital instruments in section 324.20 of the interim final rule, but that were included in tier 1 or tier 2 capital, respectively, as of September 12, 2010 (non-qualifying capital instruments issued prior to September 12, 2010). These instruments may be included up to the percentage of the outstanding principal amount of such non-qualifying capital instruments as of the effective date of the interim final rule in accordance with the phase-out schedule in Table 14. As of January 1, 2014 for advanced approaches FDIC-supervised 55399 institutions, and January 1, 2015 for all other FDIC-supervised institutions, debt or equity instruments issued after September 12, 2010, that do not meet the criteria for additional tier 1 or tier 2 capital instruments in section 20 of the interim final rule may not be included in additional tier 1 or tier 2 capital. TABLE 14—PERCENTAGE OF NON-QUALIFYING CAPITAL INSTRUMENTS ISSUED PRIOR TO SEPTEMBER 12, 2010 INCLUDABLE IN ADDITIONAL TIER 1 OR TIER 2 CAPITAL Percentage of non-qualifying capital instruments issued prior to September 2010 includable in additional tier 1 or tier 2 capital for FDIC-supervised institutions Transition period (calendar year) Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year year year year 2014 2015 2016 2017 2018 2019 2020 2021 2022 (advanced approaches FDIC-supervised institutions only) ................................ ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. and thereafter ..................................................................................................... Under the transition provisions in the interim final rule, an FDIC-supervised institution is allowed to include in regulatory capital a portion of the common equity tier 1, tier 1, or total capital minority interest that is disqualified from regulatory capital as a result of the requirements and limitations outlined in section 21 (surplus minority interest). If an FDICsupervised institution has surplus minority interest outstanding when the interim final rule becomes effective, that surplus minority interest will be subject to the phase-out schedule outlined in Table 16. Advanced approaches FDICsupervised institutions must begin to phase out surplus minority interest in accordance with Table 16 beginning on January 1, 2014. All other FDICsupervised institutions will begin the phase out for surplus minority interest on January 1, 2015. 80 70 60 50 40 30 20 10 0 During the transition period, an FDICsupervised institution will also be able to include in tier 1 or total capital a portion of the instruments issued by a consolidated subsidiary that qualified as tier 1 or total capital of the FDICsupervised institution on the date the rule becomes effective, but that do not qualify as tier 1 or total capital under section 324.20 of the interim final rule (non-qualifying minority interest) in accordance with Table 16. TABLE 16—PERCENTAGE OF THE AMOUNT OF SURPLUS OR NON-QUALIFYING MINORITY INTEREST INCLUDABLE IN REGULATORY CAPITAL DURING TRANSITION PERIOD Percentage of the amount of surplus or nonqualifying minority interest that can be included in regulatory capital during the transition period Transition period January January January January January 1, 1, 1, 1, 1, 2014, to December 31, 2014 (advanced approaches FDIC-supervised institutions only) 2015, to December 31, 2015 ............................................................................................ 2016, to December 31, 2016 ............................................................................................ 2017, to December 31, 2017 ............................................................................................ 2018 and thereafter ........................................................................................................... emcdonald on DSK67QTVN1PROD with RULES2 VIII. Standardized Approach for RiskWeighted Assets In the Standardized Approach NPR, the agencies proposed to revise methodologies for calculating riskweighted assets. As discussed above and in the proposal, these revisions were intended to harmonize the agencies’ rules for calculating risk-weighted assets and to enhance risk sensitivity and remediate weaknesses identified over VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 recent years.102 The proposed revisions incorporated elements of the Basel II standardized approach 103 as modified by the 2009 Enhancements, certain aspects of Basel III, and other proposals in recent consultative papers published 102 77 FR 52888 (August 30, 2012). BCBS, ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework,’’ (June 2006), available at https://www.bis.org/publ/bcbs128.htm. 103 See PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 80 60 40 20 0 by the BCBS.104 Consistent with section 939A of the Dodd-Frank Act, the agencies also proposed alternatives to credit ratings for calculating risk weights for certain assets. 104 See, e.g., ‘‘Basel III FAQs answered by the Basel Committee’’ (July, October, December 2011), available at https://www.bis.org/list/press_releases/ index.htm; ‘‘Capitalization of Banking Organization Exposures to Central Counterparties’’ (December 2010, revised November 2011) (CCP consultative release), available at https://www.bis.org/publ/ bcbs206.pdf. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55400 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations The proposal also included potential revisions for the recognition of credit risk mitigation that would allow for greater recognition of financial collateral and a wider range of eligible guarantors. In addition, the proposal set forth more risk-sensitive treatments for residential mortgages, equity exposures and past due loans, derivatives and repo-style transactions cleared through CCPs, and certain commercial real estate exposures that typically have higher credit risk, as well as operational requirements for securitization exposures. The agencies also proposed to apply disclosure requirements to banking organizations with $50 billion or more in total assets that are not subject to the advanced approaches rule. The agencies received a significant number of comments regarding the proposed standardized approach for risk-weighted assets. Although a few commenters observed that the proposals would provide a sound framework for determining risk-weighted assets for all banking organizations that would generally benefit U.S. banking organizations, a significant number of other commenters asserted that the proposals were too complex and burdensome, especially for smaller banking organizations, and some argued that it was inappropriate to apply the proposed requirements to such banking organizations because such institutions did not cause the recent financial crisis. Other commenters expressed concern that the new calculation for riskweighted assets would adversely affect banking organizations’ regulatory capital ratios and that smaller banking organizations would have difficulties obtaining the data and performing the calculations required by the proposals. A number of commenters also expressed concern about the burden of the proposals in the context of multiple new regulations, including new standards for mortgages and increased regulatory capital requirements generally. One commenter urged the agencies to maintain key aspects of the proposed risk-weighted asset treatment for community banking organizations, but generally requested that the agencies reduce the perceived complexity. The FDIC has considered these comments and, where applicable, have focused on simplicity, comparability, and broad applicability of methodologies for U.S. banking organizations under the standardized approach. Some commenters asked that the proposed requirements be optional for community banking organizations until the effects of the proposals have been studied, or that the proposed standardized approach be withdrawn VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 entirely. A number of the commenters requested specific modifications to the proposals. For example, some requested an exemption for community banking organizations from the proposed due diligence requirements for securitization exposures. Other commenters requested that the agencies grandfather the risk weighting of existing loans, arguing that doing so would lessen the proposed rule’s implementation burden. To address commenters’ concerns about the standardized approach’s burden and the accessibility of credit, the FDIC has revised elements of the proposed rule, as described in further detail below. In particular, the FDIC has modified the proposed approach to risk weighting residential mortgage loans to reflect the approach in the FDIC’s general risk-based capital rules. The FDIC believes the standardized approach more accurately captures the risk of banking organizations’ assets and, therefore, is applying this aspect of the interim final rule to all banking organizations subject to the rule. This section of the preamble describes in detail the specific proposals for the standardized treatment of risk-weighted assets, comments received on those proposals, and the provisions of the interim final rule in subpart D as adopted by the FDIC. These sections of the preamble discuss how subpart D of the interim final rule differs from the general risk-based capital rules, and provides examples for how an FDICsupervised institution must calculate risk-weighted asset amounts under the interim final rule. Beginning on January 1, 2015, all FDIC-supervised institutions will be required to calculate risk-weighted assets under subpart D of the interim final rule. Until then, FDIC-supervised institutions must calculate riskweighted assets using the methodologies set forth in the general risk-based capital rules. Advanced approaches FDICsupervised institutions are subject to additional requirements, as described in section III. D of this preamble, regarding the timeframe for implementation. A. Calculation of Standardized Total Risk-Weighted Assets Consistent with the Standardized Approach NPR, the interim final rule requires an FDIC-supervised institution to calculate its risk-weighted asset amounts for its on- and off-balance sheet exposures and, for market risk banks only, standardized market risk-weighted assets as determined under subpart F.105 105 This interim final rule incorporates the market risk rule into the integrated regulatory framework as subpart F of part 324. PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 Risk-weighted asset amounts generally are determined by assigning on-balance sheet assets to broad risk-weight categories according to the counterparty, or, if relevant, the guarantor or collateral. Similarly, risk-weighted asset amounts for off-balance sheet items are calculated using a two-step process: (1) Multiplying the amount of the offbalance sheet exposure by a credit conversion factor (CCF) to determine a credit equivalent amount, and (2) assigning the credit equivalent amount to a relevant risk-weight category. An FDIC-supervised institution must determine its standardized total riskweighted assets by calculating the sum of (1) its risk-weighted assets for general credit risk, cleared transactions, default fund contributions, unsettled transactions, securitization exposures, and equity exposures, each as defined below, plus (2) market risk-weighted assets, if applicable, minus (3) the amount of the FDIC-supervised institution’s ALLL that is not included in tier 2 capital, and any amounts of allocated transfer risk reserves. B. Risk-Weighted Assets for General Credit Risk Consistent with the proposal, under the interim final rule total risk-weighted assets for general credit risk equals the sum of the risk-weighted asset amounts as calculated under section 324.31(a) of the interim final rule. General credit risk exposures include an FDIC-supervised institution’s on-balance sheet exposures (other than cleared transactions, default fund contributions to CCPs, securitization exposures, and equity exposures, each as defined in section 2 of the interim final rule), exposures to over-the-counter (OTC) derivative contracts, off-balance sheet commitments, trade and transactionrelated contingencies, guarantees, repostyle transactions, financial standby letters of credit, forward agreements, or other similar transactions. Under the interim final rule, the exposure amount for the on-balance sheet component of an exposure is generally the FDIC-supervised institution’s carrying value for the exposure as determined under GAAP. The FDIC believes that using GAAP to determine the amount and nature of an exposure provides a consistent framework that can be easily applied across all FDIC-supervised institutions. Generally, FDIC-supervised institutions already use GAAP to prepare their financial statements and regulatory reports, and this treatment reduces potential burden that could otherwise result from requiring FDIC-supervised institutions to comply with a separate E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 set of accounting and measurement standards for risk-based capital calculation purposes under non-GAAP standards, such as regulatory accounting practices or legal classification standards. For purposes of the definition of exposure amount for AFS or held-tomaturity debt securities and AFS preferred stock not classified as equity under GAAP that are held by an FDICsupervised institution that has made an AOCI opt-out election, the exposure amount is the FDIC-supervised institution’s carrying value (including net accrued but unpaid interest and fees) for the exposure, less any net unrealized gains, and plus any net unrealized losses. For purposes of the definition of exposure amount for AFS preferred stock classified as an equity security under GAAP that is held by a banking organization that has made an AOCI opt-out election, the exposure amount is the banking organization’s carrying value (including net accrued but unpaid interest and fees) for the exposure, less any net unrealized gains that are reflected in such carrying value but excluded from the banking organization’s regulatory capital. In most cases, the exposure amount for an off-balance sheet component of an exposure is determined by multiplying the notional amount of the off-balance sheet component by the appropriate CCF as determined under section 324.33 of the interim final rule. The exposure amount for an OTC derivative contract or cleared transaction is determined under sections 34 and 35, respectively, of the interim final rule, whereas exposure amounts for collateralized OTC derivative contracts, collateralized cleared transactions, repo-style transactions, and eligible margin loans are determined under section 324.37 of the interim final rule. 1. Exposures to Sovereigns Consistent with the proposal, the interim final rule defines a sovereign as a central government (including the U.S. government) or an agency, department, ministry, or central bank of a central government. In the Standardized Approach NPR, the agencies proposed to retain the general risk-based capital rules’ risk weights for exposures to and claims directly and unconditionally guaranteed by the U.S. government or its agencies. The interim final rule adopts the proposed treatment and provides that exposures to the U.S. government, its central bank, or a U.S. government agency and the portion of an exposure that is directly and unconditionally guaranteed by the U.S. government, the U.S. central bank, or a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 U.S. government agency receive a zero percent risk weight.106 Consistent with the general risk-based capital rules, the portion of a deposit or other exposure insured or otherwise unconditionally guaranteed by the FDIC or the National Credit Union Administration also is assigned a zero percent risk weight. An exposure conditionally guaranteed by the U.S. government, its central bank, or a U.S. government agency receives a 20 percent risk weight.107 This includes an exposure that is conditionally guaranteed by the FDIC or the National Credit Union Administration. The agencies proposed in the Standardized Approach NPR to revise the risk weights for exposures to foreign sovereigns. The agencies’ general riskbased capital rules generally assign risk weights to direct exposures to sovereigns and exposures directly guaranteed by sovereigns based on whether the sovereign is a member of the Organization for Economic Cooperation and Development (OECD) and, as applicable, whether the exposure is unconditionally or conditionally guaranteed by the sovereign.108 Under the proposed rule, the risk weight for a foreign sovereign exposure would have been determined using OECD Country Risk Classifications (CRCs) (the CRC methodology).109 The CRCs reflect an assessment of country risk, used to set interest rate charges for transactions covered by the OECD arrangement on export credits. The CRC methodology classifies countries into one of eight risk categories (0–7), with countries assigned to the zero category having the lowest possible risk 106 Similar to the general risk-based capital rules, a claim would not be considered unconditionally guaranteed by a central government if the validity of the guarantee is dependent upon some affirmative action by the holder or a third party, for example, asset servicing requirements. See 12 CFR part 325, appendix A, section II.C. (footnote 35) (state nonmember banks) and 12 CFR 390.466 (state savings associations). 107 Loss-sharing agreements entered into by the FDIC with acquirers of assets from failed institutions are considered conditional guarantees for risk-based capital purposes due to contractual conditions that acquirers must meet. The guaranteed portion of assets subject to a losssharing agreement may be assigned a 20 percent risk weight. Because the structural arrangements for these agreements vary depending on the specific terms of each agreement, FDIC-supervised institutions should consult with the FDIC to determine the appropriate risk-based capital treatment for specific loss-sharing agreements. 108 12 CFR part 325, appendix A, section II.C (state nonmember banks) and 12 CFR 390.466 (state savings associations). 109 For more information on the OECD country risk classification methodology, see OECD, ‘‘Country Risk Classification,’’ available at https:// www.oecd.org/document/49/0,3746,en_2649_34169 _1901105_1_1_1_1,00.html. PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 55401 assessment and countries assigned to the 7 category having the highest possible risk assessment. Using CRCs to risk weight sovereign exposures is an option that is included in the Basel II standardized framework. The agencies proposed to map risk weights ranging from 0 percent to 150 percent to CRCs in a manner consistent with the Basel II standardized approach, which provides risk weights for foreign sovereigns based on country risk scores. The agencies also proposed to assign a 150 percent risk weight to foreign sovereign exposures immediately upon determining that an event of sovereign default has occurred or if an event of sovereign default has occurred during the previous five years. The proposal defined sovereign default as noncompliance by a sovereign with its external debt service obligations or the inability or unwillingness of a sovereign government to service an existing loan according to its original terms, as evidenced by failure to pay principal or interest fully and on a timely basis, arrearages, or restructuring. Restructuring would include a voluntary or involuntary restructuring that results in a sovereign not servicing an existing obligation in accordance with the obligation’s original terms. The agencies received several comments on the proposed risk weights for foreign sovereign exposures. Some commenters criticized the proposal, arguing that CRCs are not sufficiently risk sensitive and basing risk weights on CRCs unduly benefits certain jurisdictions with unstable fiscal positions. A few commenters asserted that the increased burden associated with tracking CRCs to determine risk weights outweighs any increased risk sensitivity gained by using CRCs relative to the general risk-based capital rules. Some commenters also requested that the CRC methodology be disclosed so that banking organizations could perform their own due diligence. One commenter also indicated that community banking organizations should be permitted to maintain the treatment under the general risk-based capital rules. Following the publication of the proposed rule, the OECD determined that certain high-income countries that received a CRC of 0 in 2012 will no longer receive any CRC.110 110 See https://www.oecd.or/tad/xcred/cat0.htm; Participants to the Arrangement on Officially Supported Export Credits agreed that the automatic classification of High Income OECD and High Income Euro Area countries in Country Risk Category Zero should be terminated. In the future, these countries will no longer be classified but will E:\FR\FM\10SER2.SGM Continued 10SER2 55402 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 Despite the limitations associated with risk weighting foreign sovereign exposures using CRCs, the FDIC has decided to retain this methodology, modified as described below to take into account that some countries will no longer receive a CRC. Although the FDIC recognizes that the risk sensitivity provided by the CRCs is limited, it considers CRCs to be a reasonable alternative to credit ratings for sovereign exposures and the CRC methodology to be more granular and risk sensitive than the current risk-weighting methodology based solely on OECD membership. Furthermore, the OECD regularly updates CRCs and makes the assessments publicly available on its Web site.111 Accordingly, the FDIC believes that risk weighting foreign sovereign exposures with reference to CRCs (as applicable) should not unduly burden FDIC-supervised institutions. Additionally, the 150 percent risk weight assigned to defaulted sovereign exposures should mitigate the concerns raised by some commenters that the use of CRCs assigns inappropriate risk weights to exposures to countries experiencing fiscal stress. The interim final rule assigns risk weights to foreign sovereign exposures as set forth in Table 17 below. The FDIC modified the interim final rule to reflect a change in OECD practice for assigning CRCs for certain member countries so that those member countries that no longer receive a CRC are assigned a zero percent risk weight. Applying a zero percent risk weight to exposures to these countries is appropriate because they will remain subject to the same market credit risk pricing formulas of the OECD’s rating methodologies that are applied to all OECD countries with a CRC of 0. In other words, OECD member countries that are no longer assigned a CRC exhibit a similar degree of country risk as that of a jurisdiction with a CRC of zero. The interim final rule, therefore, provides a zero percent risk weight in these cases. Additionally, a zero percent risk weight for these countries is generally consistent with the risk weight they would receive under the FDIC’s general risk-based capital rules. remain subject to the same market credit risk pricing disciplines that are applied to all Category Zero countries. This means that the change will have no practical impact on the rules that apply to the provision of official export credits. 111 For more information on the OECD country risk classification methodology, see OECD, ‘‘Country Risk Classification,’’ available at https:// www.oecd.org/document/49/0,3746,en_2649_ 34169_1901105_1_1_1_1,00.html. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 TABLE 17—RISK WEIGHTS FOR SOVEREIGN EXPOSURES Risk weight (in percent) CRC .......................... 0–1 2 3 4–6 7 OECD Member with No CRC Non-OECD Member with No CRC .................................. Sovereign Default ................. 0 20 50 100 150 0 100 150 Consistent with the proposal, the interim final rule provides that if a banking supervisor in a sovereign jurisdiction allows banking organizations in that jurisdiction to apply a lower risk weight to an exposure to the sovereign than Table 17 provides, a U.S. FDIC-supervised institution may assign the lower risk weight to an exposure to the sovereign, provided the exposure is denominated in the sovereign’s currency and the U.S. FDICsupervised institution has at least an equivalent amount of liabilities in that foreign currency. 2. Exposures to Certain Supranational Entities and Multilateral Development Banks Under the general risk-based capital rules, exposures to certain supranational entities and MDBs receive a 20 percent risk weight. Consistent with the Basel II standardized framework, the agencies proposed to apply a zero percent risk weight to exposures to the Bank for International Settlements, the European Central Bank, the European Commission, and the International Monetary Fund. The agencies also proposed to apply a zero percent risk weight to exposures to an MDB in accordance with the Basel framework. The proposal defined an MDB to include the International Bank for Reconstruction and Development, the Multilateral Investment Guarantee Agency, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, the European Investment Fund, the Nordic Investment Bank, the Caribbean Development Bank, the Islamic Development Bank, the Council of Europe Development Bank, and any other multilateral lending institution or regional development bank in which the U.S. government is a shareholder or contributing member or which the PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 primary Federal supervisor determines poses comparable credit risk. As explained in the proposal, the agencies believe this treatment is appropriate in light of the generally high-credit quality of MDBs, their strong shareholder support, and a shareholder structure comprised of a significant proportion of sovereign entities with strong creditworthiness. The FDIC has adopted this aspect of the proposal without change. Exposures to regional development banks and multilateral lending institutions that are not covered under the definition of MDB generally are treated as corporate exposures assigned to the 100 percent risk weight category. 3. Exposures to Government-Sponsored Enterprises The general risk-based capital rules assign a 20 percent risk weight to exposures to GSEs that are not equity exposures and a 100 percent risk weight to GSE preferred stock in the case of the Federal Reserve and the FDIC (the OCC has assigned a 20 percent risk weight to GSE preferred stock). The agencies proposed to continue to assign a 20 percent risk weight to exposures to GSEs that are not equity exposures and to also assign a 100 percent risk weight to preferred stock issued by a GSE. As explained in the proposal, the agencies believe these risk weights remain appropriate for the GSEs under their current circumstances, including those in the conservatorship of the Federal Housing Finance Agency and receiving capital support from the U.S. Treasury. The FDIC maintains that the obligations of the GSEs, as private corporations whose obligations are not explicitly guaranteed by the full faith and credit of the United States, should not receive the same treatment as obligations that have such an explicit guarantee. 4. Exposures to Depository Institutions, Foreign Banks, and Credit Unions The general risk-based capital rules assign a 20 percent risk weight to all exposures to U.S. depository institutions and foreign banks incorporated in an OECD country. Under the general risk-based capital rules, short-term exposures to foreign banks incorporated in a non-OECD country receive a 20 percent risk weight and long-term exposures to such entities receive a 100 percent risk weight. The proposed rule would assign a 20 percent risk weight to exposures to U.S. depository institutions and credit E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 unions.112 Consistent with the Basel II standardized framework, under the proposed rule, an exposure to a foreign bank would receive a risk weight one category higher than the risk weight assigned to a direct exposure to the foreign bank’s home country, based on the assignment of risk weights by CRC, as discussed above.113 A banking organization would be required to assign a 150 percent risk weight to an exposure to a foreign bank immediately upon determining that an event of sovereign default has occurred in the foreign bank’s home country, or if an event of sovereign default has occurred in the foreign bank’s home country during the previous five years. A few commenters asserted that the proposed 20 percent risk weight for exposures to U.S. banking organizations—when compared to corporate exposures that are assigned a 100 percent risk weight—would continue to encourage banking organizations to become overly concentrated in the financial sector. The FDIC has concluded that the proposed 20 percent risk weight is an appropriate reflection of risk for this exposure type when taking into consideration the extensive regulatory and supervisory frameworks under which these institutions operate. In addition, the FDIC notes that exposures to the capital of other financial institutions, including depository institutions and credit unions, are subject to deduction from capital if they exceed certain limits as set forth in section 324.22 of the interim final rule (discussed above in section V.B of this preamble). Therefore, the interim final rule retains, as proposed, the 20 percent risk weight for exposures to U.S. FDIC-supervised institutions. The FDIC has adopted the proposal with modifications to take into account the OECD’s decision to withdraw CRCs for certain OECD member countries. Accordingly, exposures to a foreign bank in a country that does not have a CRC, but that is a member of the OECD, are assigned a 20 percent risk weight and exposures to a foreign bank in a non-OECD member country that does not have a CRC continue to receive a 100 percent risk weight. 112 A depository institution is defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813(c)(1)). Under this interim final rule, a credit union refers to an insured credit union as defined under the Federal Credit Union Act (12 U.S.C. 1752(7)). 113 Foreign bank means a foreign bank as defined in section 211.2 of the Federal Reserve Board’s Regulation K (12 CFR 211.2), that is not a depository institution. For purposes of the proposal, home country meant the country where an entity is incorporated, chartered, or similarly established. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Additionally, the FDIC has adopted the proposed requirement that exposures to a financial institution that are included in the regulatory capital of such financial institution receive a risk weight of 100 percent, unless the exposure is (1) an equity exposure, (2) a significant investment in the capital of an unconsolidated financial institution in the form of common stock under section 22 of the interim final rule, (3) an exposure that is deducted from regulatory capital under section 324.22 of the interim final rule, or (4) an exposure that is subject to the 150 percent risk weight under Table 2 of section 324.32 of the interim final rule. As described in the Standardized Approach NPR, in 2011, the BCBS revised certain aspects of the Basel capital framework to address potential adverse effects of the framework on trade finance in low-income countries.114 In particular, the framework was revised to remove the sovereign floor for trade finance-related claims on banking organizations under the Basel II standardized approach.115 The proposal incorporated this revision and would have permitted a banking organization to assign a 20 percent risk weight to self-liquidating trade-related contingent items that arise from the movement of goods and that have a maturity of three months or less.116 Consistent with the proposal, the interim final rule permits an FDICsupervised institution to assign a 20 percent risk weight to self-liquidating, trade-related contingent items that arise from the movement of goods and that have a maturity of three months or less. As discussed in the proposal, although the Basel capital framework permits exposures to securities firms that meet certain requirements to be assigned the same risk weight as exposures to depository institutions, the agencies do not believe that the risk profile of securities firms is sufficiently 114 See BCBS, ‘‘Treatment of Trade Finance under the Basel Capital Framework,’’ (October 2011), available at https://www.bis.org/publ/bcbs205.pdf. ‘‘Low income country’’ is a designation used by the World Bank to classify economies (see World Bank, ‘‘How We Classify Countries,’’ available at https:// data.worldbank.org/about/country-classifications). 115 The BCBS indicated that it removed the sovereign floor for such exposures to make access to trade finance instruments easier and less expensive for low income countries. Absent removal of the floor, the risk weight assigned to these exposures, where the issuing banking organization is incorporated in a low income country, typically would be 100 percent. 116 One commenter requested that the agencies confirm whether short-term self-liquidating trade finance instruments are considered exempt from the one-year maturity floor in the advances approaches rule. Section 324.131(d)(7) of the interim final rule provides that a trade-related letter of credit is exempt from the one-year maturity floor. PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 55403 similar to depository institutions to justify assigning the same risk weight to both exposure types. Therefore, the agencies proposed that banking organizations assign a 100 percent risk weight to exposures to securities firms, which is the same risk weight applied to BHCs, SLHCs, and other financial institutions that are not insured depository institutions or credit unions, as described in section VIII.B of this preamble. Several commenters asserted that the interim final rule should be consistent with the Basel framework and permit lower risk weights for exposures to securities firms, particularly for securities firms in a sovereign jurisdiction with a CRC of 0 or 1. The FDIC considered these comments and has concluded that that exposures to securities firms exhibit a similar degree of risk as exposures to other financial institutions that are assigned a 100 percent risk weight, because of the nature and risk profile of their activities, which are more expansive and exhibit more varied risk profiles than the activities permissible for depository institutions and credit unions. Accordingly, the FDIC has adopted the 100 percent risk weight for securities firms without change. 5. Exposures to Public-Sector Entities The proposal defined a PSE as a state, local authority, or other governmental subdivision below the level of a sovereign, which includes U.S. states and municipalities. The proposed definition did not include governmentowned commercial companies that engage in activities involving trade, commerce, or profit that are generally conducted or performed in the private sector. The agencies proposed to define a general obligation as a bond or similar obligation that is backed by the full faith and credit of a PSE, whereas a revenue obligation would be defined as a bond or similar obligation that is an obligation of a PSE, but which the PSE has committed to repay with revenues from a specific project rather than general tax funds. In the interim final rule, the FDIC is adopting these definitions as proposed. The agencies proposed to assign a 20 percent risk weight to a general obligation exposure to a PSE that is organized under the laws of the United States or any state or political subdivision thereof, and a 50 percent risk weight to a revenue obligation exposure to such a PSE. These are the risk weights assigned to U.S. states and municipalities under the general riskbased capital rules. E:\FR\FM\10SER2.SGM 10SER2 55404 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Some commenters asserted that available default data does not support a differentiated treatment between revenue obligations and general obligations. In addition, some commenters contended that higher risk weights for revenue obligation bonds would needlessly and adversely affect state and local agencies’ ability to meet the needs of underprivileged constituents. One commenter specifically recommended assigning a 20 percent risk weight to investmentgrade revenue obligations. Another commenter recommended that exposures to U.S. PSEs should receive the same treatment as exposures to the U.S. government. The FDIC considered these comments, including with respect to burden on state and local programs, but concluded that the higher regulatory capital requirement for revenue obligations is appropriate because those obligations are dependent on revenue from specific projects and generally a PSE is not legally obligated to repay these obligations from other revenue sources. Although some evidence may suggest that there are not substantial differences in credit quality between general and revenue obligation exposures, the FDIC believes that such dependence on project revenue presents more credit risk relative to a general repayment obligation of a state or political subdivision of a sovereign. Therefore, the proposed differentiation of risk weights between general obligation and revenue exposures is retained in the interim final rule. The FDIC also continues to believe that PSEs collectively pose a greater credit risk than U.S. sovereign debt and, therefore, are appropriately assigned a higher risk weight under the interim final rule. Consistent with the Basel II standardized framework, the agencies proposed to require banking organizations to risk weight exposures to a non-U.S. PSE based on (1) the CRC assigned to the PSE’s home country and (2) whether the exposure is a general obligation or a revenue obligation. The risk weights assigned to revenue obligations were proposed to be higher than the risk weights assigned to a general obligation issued by the same PSE. For purposes of the interim final rule, the FDIC has adopted the proposed risk weights for non-U.S. PSEs with modifications to take into account the OECD’s decision to withdraw CRCs for certain OECD member countries (discussed above), as set forth in Table 18 below. Under the interim final rule, exposures to a non-U.S. PSE in a country that does not have a CRC and is not an OECD member receive a 100 percent risk weight. Exposures to a nonU.S. PSE in a country that has defaulted on any outstanding sovereign exposure or that has defaulted on any sovereign exposure during the previous five years receive a 150 percent risk weight. TABLE 18—RISK WEIGHTS FOR EXPOSURES TO NON-U.S. PSE GENERAL OBLIGATIONS AND REVENUE OBLIGATIONS [In percent] Risk Weight for Exposures to NonU.S. PSE General Obligations Risk Weight for Exposures to NonU.S. PSE Revenue Obligations 0–1 2 3 4–7 20 50 100 150 50 100 100 150 OECD Member with No CRC .......................................................................................................... Non-OECD member with No CRC .................................................................................................. Sovereign Default ............................................................................................................................ 20 100 150 50 100 150 CRC ..................................................................................................................................... Consistent with the general risk-based capital rules as well as the proposed rule, an FDIC-supervised institution may apply a different risk weight to an exposure to a non-U.S. PSE if the banking organization supervisor in that PSE’s home country allows supervised institutions to assign the alternative risk weight to exposures to that PSE. In no event, however, may the risk weight for an exposure to a non-U.S. PSE be lower than the risk weight assigned to direct exposures to the sovereign of that PSE’s home country. emcdonald on DSK67QTVN1PROD with RULES2 6. Corporate Exposures Generally consistent with the general risk-based capital rules, the agencies proposed to require banking organizations to assign a 100 percent risk weight to all corporate exposures, including bonds and loans. The proposal defined a corporate exposure as an exposure to a company that is not VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 an exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, an MDB, a depository institution, a foreign bank, a credit union, a PSE, a GSE, a residential mortgage exposure, a pre-sold construction loan, a statutory multifamily mortgage, a high-volatility commercial real estate (HVCRE) exposure, a cleared transaction, a default fund contribution, a securitization exposure, an equity exposure, or an unsettled transaction. The definition also captured all exposures that are not otherwise included in another specific exposure category. Several commenters recommended differentiating the proposed risk weights for corporate bonds based on a bond’s credit quality. Other commenters requested the agencies align the interim final rule with the Basel international PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 standard that aligns risk weights with credit ratings. Another commenter contended that corporate bonds should receive a 50 percent risk weight, arguing that other exposures included in the corporate exposure category (such as commercial and industrial bank loans) are empirically of greater risk than corporate bonds. One commenter requested that the standardized approach provide a distinct capital treatment of a 75 percent risk weight for retail exposures, consistent with the international standard under Basel II. The FDIC has concluded that the proposed 100 percent risk weight assigned to retail exposures is appropriate given their risk profile in the United States and has retained the proposed treatment in the interim final rule. Consistent with the proposal, the interim final rule neither defines nor provides a separate E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations treatment for retail exposures in the standardized approach. As described in the proposal, the agencies removed the use of ratings from the regulatory capital framework, consistent with section 939A of the Dodd-Frank Act. The agencies therefore evaluated a number of alternatives to credit ratings to provide a more granular risk weight treatment for corporate exposures.117 For example, the agencies considered market-based alternatives, such as the use of credit default and bond spreads, and use of particular indicators or parameters to differentiate between relative levels of credit risk. However, the agencies viewed each of the possible alternatives as having significant drawbacks, including their operational complexity, or insufficient development. For instance, the agencies were concerned that bond markets may sometimes misprice risk and bond spreads may reflect factors other than credit risk. The agencies also were concerned that such approaches could introduce undue volatility into the riskbased capital requirements. The FDIC considered suggestions offered by commenters and understands that a 100 percent risk weight may overstate the credit risk associated with some high-quality bonds. However, the FDIC believes that a single risk weight of less than 100 percent would understate the risk of many corporate exposures and, as explained, has not yet identified an alternative methodology to credit ratings that would provide a sufficiently rigorous basis for differentiating the risk of various corporate exposures. In addition, the FDIC believes that, on balance, a 100 percent risk weight is generally representative of a well-diversified corporate exposure portfolio. The interim final rule retains without change the 100 percent risk weight for all corporate exposures as well as the proposed definition of corporate exposure. A few commenters requested clarification on the treatment for general-account insurance products. Under the final rule, consistent with the proposal, if a general-account exposure is to an organization that is not a banking organization, such as an insurance company, the exposure must receive a risk weight of 100 percent. Exposures to securities firms are subject to the corporate exposure treatment under the final rule, as described in section VIII.B of this preamble. 117 See, for example, 76 FR 73526 (Nov. 29, 2011) and 76 FR 73777 (Nov. 29, 2011). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 7. Residential Mortgage Exposures Under the general risk-based capital requirements, first-lien residential mortgages made in accordance with prudent underwriting standards on properties that are owner-occupied or rented typically are assigned to the 50 percent risk-weight category. Otherwise, residential mortgage exposures are assigned to the 100 percent risk weight category. The proposal would have substantially modified the risk-weight framework applicable to residential mortgage exposures and differed materially from both the general riskbased capital rules and the Basel capital framework. The agencies proposed to divide residential mortgage exposures into two categories. The proposal applied relatively low risk weights to residential mortgage exposures that did not have product features associated with higher credit risk, or ‘‘category 1’’ residential mortgages as defined in the proposal. The proposal defined all other residential mortgage exposures as ‘‘category 2’’ mortgages, which would receive relatively high risk weights. For both category 1 and category 2 mortgages, the proposed risk weight assigned also would have depended on the mortgage exposure’s LTV ratio. Under the proposal, a banking organization would not be able to recognize private mortgage insurance (PMI) when calculating the LTV ratio of a residential mortgage exposure. Due to the varying degree of financial strength of mortgage insurance providers, the agencies stated that they did not believe that it would be prudent to consider PMI in the determination of LTV ratios under the proposal. The agencies received a significant number of comments in opposition to the proposed risk weights for residential mortgages and in favor of retaining the risk-weight framework for residential mortgages in the general risk-based capital rules. Many commenters asserted that the increased risk weights for certain mortgages would inhibit lending to creditworthy borrowers, particularly when combined with the other proposed statutory and regulatory requirements being implemented under the authority of the Dodd-Frank Act, and could ultimately jeopardize the recovery of a still-fragile residential real estate market. Various commenters asserted that the agencies did not provide sufficient empirical support for the proposal and stated the proposal was overly complex and would not contribute meaningfully to the risk sensitivity of the regulatory capital requirements. They also asserted that PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 55405 the proposal would require some banking organizations to raise revenue through other, more risky activities to compensate for the potential increased costs. Commenters also indicated that the distinction between category 1 and category 2 residential mortgages would adversely impact certain loan products that performed relatively well even during the recent crisis, such as balloon loans originated by community banking organizations. Other commenters criticized the proposed increased capital requirements for various loan products, including balloon and interest-only mortgages. Community banking organization commenters in particular asserted that such mortgage products are offered to hedge interest-rate risk and are frequently the only option for a significant segment of potential borrowers in their regions. A number of commenters argued that the proposal would place U.S. banking organizations at a competitive disadvantage relative to foreign banking organizations subject to the Basel II standardized framework, which generally assigns a 35 percent risk weight to residential mortgage exposures. Several commenters indicated that the proposed treatment would potentially undermine government programs encouraging residential mortgage lending to lowerincome individuals and underserved regions. Commenters also asserted that PMI should receive explicit recognition in the interim final rule through a reduction in risk weights, given the potential negative impact on mortgage availability (particularly to first-time borrowers) of the proposed risk weights. In addition to comments on the specific elements of the proposal, a significant number of commenters alleged that the agencies did not sufficiently consider the potential impact of other regulatory actions on the mortgage industry. For instance, commenters expressed considerable concern regarding the new requirements associated with the Dodd-Frank Act’s qualified mortgage definition under the Truth in Lending Act.118 Many of these commenters asserted that when combined with this proposal, the cumulative effect of the new regulatory requirements could adversely impact the residential mortgage industry. The agencies also received specific comments concerning potential logistical difficulties they would face 118 The proposal was issued prior to publication of the Consumer Financial Protection Bureau’s final rule regarding qualified mortgage standards. See 78 FR 6407 (January 30, 2013). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55406 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations implementing the proposal. Many commenters argued that tracking loans by LTV and category would be administratively burdensome, requiring the development or purchase of new systems. These commenters requested that, at a minimum, existing mortgages continue to be assigned the risk weights they would receive under the general risk-based capital rules and exempted from the proposed rules. Many commenters also requested clarification regarding the method for calculating the LTV for first and subordinate liens, as well as how and whether a loan could be reclassified between the two residential mortgage categories. For instance, commenters raised various technical questions on how to calculate the LTV of a restructured mortgage and under what conditions a restructured loan could qualify as a category 1 residential mortgage exposure. The FDIC considered the comments pertaining to the residential mortgage proposal, particularly comments regarding the issuance of new regulations designed to improve the quality of mortgage underwriting and to generally reduce the associated credit risk, including the final definition of ‘‘qualified mortgage’’ as implemented by the Consumer Financial Protection Bureau (CFPB) pursuant to the DoddFrank Act.119 Additionally, the FDIC is mindful of the uncertain implications that the proposal, along with other mortgage-related rulemakings, could have had on the residential mortgage market, particularly regarding underwriting and credit availability. The FDIC also considered the commenters’ observations about the burden of calculating the risk weights for FDIC-supervised institutions’ existing mortgage portfolios, and have taken into account the commenters’ concerns about the availability of different mortgage products across different types of markets. In light of these considerations, the FDIC has decided to retain in the interim final rule the treatment for residential mortgage exposures that is currently set forth in its general riskbased capital rules. The FDIC may develop and propose changes in the treatment of residential mortgage exposures in the future, and in that process, it intends to take into consideration structural and product market developments, other relevant regulations, and potential issues with implementation across various product types. Accordingly, as under the general risk-based capital rules, the interim final 119 See id. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 rule assigns exposures secured by oneto-four family residential properties to either the 50 percent or the 100 percent risk-weight category. Exposures secured by a first-lien on an owner-occupied or rented one-to-four family residential property that meet prudential underwriting standards, including standards relating to the loan amount as a percentage of the appraised value of the property, are not 90 days or more past due or carried on non-accrual status, and that are not restructured or modified receive a 50 percent risk weight. If an FDIC-supervised institution holds the first and junior lien(s) on a residential property and no other party holds an intervening lien, the FDIC-supervised institution must treat the combined exposure as a single loan secured by a first lien for purposes of determining the loan-to-value ratio and assigning a risk weight. An FDICsupervised institution must assign a 100 percent risk weight to all other residential mortgage exposures. Under the interim final rule, a residential mortgage guaranteed by the federal government through the Federal Housing Administration (FHA) or the Department of Veterans Affairs (VA) generally will be risk-weighted at 20 percent. Consistent with the general risk-based capital rules, under the interim final rule, a residential mortgage exposure may be assigned to the 50 percent riskweight category only if it is not restructured or modified. Under the interim final rule, consistent with the proposal, a residential mortgage exposure modified or restructured on a permanent or trial basis solely pursuant to the U.S. Treasury’s Home Affordable Mortgage Program (HAMP) is not considered to be restructured or modified. Several commenters from community banking organizations encouraged the agencies to broaden this exemption and not penalize banking organizations for participating in other successful loan modification programs. As described in greater detail in the proposal, the FDIC believes that treating mortgage loans modified pursuant to HAMP in this manner is appropriate in light of the special and unique incentive features of HAMP, and the fact that the program is offered by the U.S. government to achieve the public policy objective of promoting sustainable loan modifications for homeowners at risk of foreclosure in a way that balances the interests of borrowers, servicers, and lenders. PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 8. Pre-Sold Construction Loans and Statutory Multifamily Mortgages The general risk-based capital rules assign either a 50 percent or a 100 percent risk weight to certain one-tofour family residential pre-sold construction loans and to multifamily residential loans, consistent with provisions of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991 (RTCRRI Act).120 The proposal maintained the same general treatment as the general risk-based capital rules and clarified and updated the manner in which the general risk-based capital rules define these exposures. Under the proposal, a pre-sold construction loan would be subject to a 50 percent risk weight unless the purchase contract is cancelled. The FDIC is adopting this aspect of the proposal without change. The interim final rule defines a pre-sold construction loan, in part, as any oneto-four family residential construction loan to a builder that meets the requirements of section 618(a)(1) or (2) of the RTCRRI Act, and also harmonizes the FDIC’s prior regulations. Under the interim final rule, a multifamily mortgage that does not meet the definition of a statutory multifamily mortgage is treated as a corporate exposure. 9. High-Volatility Commercial Real Estate Supervisory experience has demonstrated that certain acquisition, development, and construction loans (which are a subset of commercial real estate exposures) present particular risks for which the FDIC believes FDICsupervised institutions should hold additional capital. Accordingly, the agencies proposed to require banking organizations to assign a 150 percent risk weight to any HVCRE exposure, which is higher than the 100 percent risk weight applied to such loans under the general risk-based capital rules. The proposal defined an HVCRE exposure to include any credit facility that finances or has financed the acquisition, development, or construction of real property, unless the facility finances one- to four-family residential mortgage 120 The RTCRRI Act mandates that each agency provide in its capital regulations (i) a 50 percent risk weight for certain one-to-four-family residential pre-sold construction loans and multifamily residential loans that meet specific statutory criteria in the RTCRRI Act and any other underwriting criteria imposed by the agencies, and (ii) a 100 percent risk weight for one-to-four-family residential pre-sold construction loans for residences for which the purchase contract is cancelled. 12 U.S.C. 1831n, note. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations property, or commercial real estate projects that meet certain prudential criteria, including with respect to the LTV ratio and capital contributions or expense contributions of the borrower. Commenters criticized the proposed HVCRE definition as overly broad and suggested an exclusion for certain acquisition, development, or construction (ADC) loans, including: (1) ADC loans that are less than a specific dollar amount or have a debt service coverage ratio of 100 percent (rather than 80 percent, under the agencies’ lending standards); (2) community development projects or projects financed by low-income housing tax credits; and (3) certain loans secured by agricultural property for the sole purpose of acquiring land. Several commenters asserted that the proposed 150 percent risk weight was too high for secured loans and would hamper local commercial development. Another commenter recommended the agencies increase the number of HVCRE riskweight categories to reflect LTV ratios. The FDIC has considered the comments and has decided to retain the 150 percent risk weight for HVCRE exposures (modified as described below), given the increased risk of these activities when compared to other commercial real estate loans.121 The FDIC believes that segmenting HVCRE by LTV ratio would introduce undue complexity without providing a sufficient improvement in risk sensitivity. The FDIC has also determined not to exclude from the HVCRE definition ADC loans that are characterized by a specified dollar amount or loans with a debt service coverage ratio greater than 80 percent because an arbitrary threshold would likely not capture certain ADC loans with elevated risks. Consistent with the proposal, a commercial real estate loan that is not an HVCRE exposure is treated as a corporate exposure. Many commenters requested clarification as to whether all commercial real estate or ADC loans are considered HVCRE exposures. Consistent with the proposal, the interim final rule’s HVCRE definition only applies to a specific subset of ADC loans and is, therefore, not applicable to all commercial real estate loans. Specifically, some commenters sought clarification on whether a facility would remain an HVCRE exposure for the life of the loan and whether owner-occupied commercial real estate loans are included in the HVCRE definition. The 121 See the definition of ‘‘high-volatility commercial real estate exposure’’ in section 2 of the interim final rule. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 FDIC notes that when the life of the ADC project concludes and the credit facility is converted to permanent financing in accordance with the FDICsupervised institution’s normal lending terms, the permanent financing is not an HVCRE exposure. Thus, a loan permanently financing owner-occupied commercial real estate is not an HVCRE exposure. Given these clarifications, the FDIC believes that many concerns regarding the potential adverse impact on commercial development were, in part, driven by a lack of clarity regarding the definition of the HVCRE, and believes that the treatment of HVCRE exposures in the interim final rule appropriately reflects their risk relative to other commercial real estate exposures. Commenters also sought clarification as to whether cash or securities used to purchase land counts as borrowercontributed capital. In addition, a few commenters requested further clarification on what constitutes contributed capital for purposes of the interim final rule. Consistent with existing guidance, cash used to purchase land is a form of borrower contributed capital under the HVCRE definition. In response to the comments, the interim final rule amends the proposed HVCRE definition to exclude loans that finance the acquisition, development, or construction of real property that would qualify as community development investments. The interim final rule does not require an FDIC-supervised institution to have an investment in the real property for it to qualify for the exemption: Rather, if the real property is such that an investment in that property would qualify as a community development investment, then a facility financing acquisition, development, or construction of that property would meet the terms of the exemption. The FDIC has, however, determined not to give an automatic exemption from the HVCRE definition to all ADC loans to businesses or farms that have gross annual revenues of $1 million or less, although they could qualify for another exemption from the definition. For example, an ADC loan to a small business with annual revenues of under $1 million that meets the LTV ratio and contribution requirements set forth in paragraph (3) of the definition would qualify for that exemption from the definition as would a loan that finances real property that: Provides affordable housing (including multi-family rental housing) for low to moderate income individuals; is used in the provision of community services for low to moderate income individuals; or revitalizes or PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 55407 stabilizes low to moderate income geographies, designated disaster areas, or underserved areas specifically determined by the federal banking agencies based on the needs of low- and moderate-income individuals in those areas. The final definition also exempts ADC loans for the purchase or development of agricultural land, which is defined as all land known to be used or usable for agricultural purposes (such as crop and livestock production), provided that the valuation of the agricultural land is based on its value for agricultural purposes and the valuation does not consider any potential use of the land for nonagricultural commercial development or residential development. 10. Past-Due Exposures Under the general risk-based capital rules, the risk weight of a loan does not change if the loan becomes past due, with the exception of certain residential mortgage loans. The Basel II standardized approach provides risk weights ranging from 50 to 150 percent for exposures, except sovereign exposures and residential mortgage exposures, that are more than 90 days past due to reflect the increased risk of loss. Accordingly, to reflect the impaired credit quality of such exposures, the agencies proposed to require a banking organization to assign a 150 percent risk weight to an exposure that is not guaranteed or not secured (and that is not a sovereign exposure or a residential mortgage exposure) if it is 90 days or more past due or on nonaccrual. A number of commenters maintained that the proposed 150 percent risk weight is too high for various reasons. Specifically, several commenters asserted that ALLL is already reflected in the risk-based capital numerator, and therefore an increased risk weight double-counts the risk of a past-due exposure. Other commenters characterized the increased risk weight as procyclical and burdensome (particularly for community banking organizations), and maintained that it would unnecessarily discourage lending and loan modifications or workouts. The FDIC has considered the comments and have decided to retain the proposed 150 percent risk weight for past-due exposures in the interim final rule. The FDIC notes that the ALLL is intended to cover estimated, incurred losses as of the balance sheet date, rather than unexpected losses. The higher risk weight on past due exposures ensures sufficient regulatory capital for the increased probability of unexpected losses on these exposures. E:\FR\FM\10SER2.SGM 10SER2 55408 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations The FDIC believes that any increased capital burden, potential rise in procyclicality, or impact on lending associated with the 150 percent risk weight is justified given the overall objective of better capturing the risk associated with the impaired credit quality of these exposures. One commenter requested clarification as to whether a banking organization could reduce the risk weight for past-due exposures from 150 percent when the carrying value is charged down to the amount expected to be recovered. For the purposes of the interim final rule, an FDIC-supervised institution must apply a 150 percent risk weight to all past-due exposures, including any amount remaining on the balance sheet following a charge-off, to reflect the increased uncertainty as to the recovery of the remaining carrying value. emcdonald on DSK67QTVN1PROD with RULES2 11. Other Assets Generally consistent with the general risk-based capital rules, the FDIC has decided to adopt, as proposed, the risk weights described below for exposures not otherwise assigned to a specific risk weight category. Specifically, an FDICsupervised institution must assign: (1) A zero percent risk weight to cash owned and held in all of an FDICsupervised institution’s offices or in transit; gold bullion held in the FDICsupervised institution’s own vaults, or held in another depository institution’s vaults on an allocated basis to the extent gold bullion assets are offset by gold bullion liabilities; and to exposures that arise from the settlement of cash transactions (such as equities, fixed income, spot foreign exchange and spot commodities) with a CCP where there is no assumption of ongoing counterparty credit risk by the CCP after settlement of the trade and associated default fund contributions; (2) A 20 percent risk weight to cash items in the process of collection; and (3) A 100 percent risk weight to all assets not specifically assigned a different risk weight under the interim final rule (other than exposures that would be deducted from tier 1 or tier 2 capital), including deferred acquisition costs (DAC) and value of business acquired (VOBA). In addition, subject to the proposed transition arrangements under section 300 of the interim final rule, an FDICsupervised institution must assign: (1) A 100 percent risk weight to DTAs arising from temporary differences that the FDIC-supervised institution could realize through net operating loss carrybacks; and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) A 250 percent risk weight to the portion of MSAs and DTAs arising from temporary differences that the FDICsupervised institution could not realize through net operating loss carrybacks that are not deducted from common equity tier 1 capital pursuant to section 324.22(d). The agencies received a few comments on the treatment of DAC and VOBA. DAC represents certain costs incurred in the acquisition of a new contract or renewal insurance contract that are capitalized pursuant to GAAP. VOBA refers to assets that reflect revenue streams from insurance policies purchased by an insurance company. One commenter asked for clarification on risk weights for other types of exposures that are not assigned a specific risk weight under the proposal. Consistent with the proposal, under the interim final rule these assets receive a 100 percent risk weight, together with other assets not specifically assigned a different risk weight under the NPR. Consistent with the general risk-based capital rules, the interim final rule retains the limited flexibility to address situations where exposures of an FDICsupervised institution that are not exposures typically held by depository institutions do not fit wholly within the terms of another risk-weight category. Under the interim final rule, an FDICsupervised institution may assign such exposures to the risk-weight category applicable under the capital rules for BHCs or covered SLHCs, provided that (1) the FDIC-supervised institution is not authorized to hold the asset under applicable law other than debt previously contracted or similar authority; and (2) the risks associated with the asset are substantially similar to the risks of assets that are otherwise assigned to a risk-weight category of less than 100 percent under subpart D of the interim final rule. C. Off-Balance Sheet Items 1. Credit Conversion Factors Under the proposed rule, as under the general risk-based capital rules, a banking organization would calculate the exposure amount of an off-balance sheet item by multiplying the offbalance sheet component, which is usually the contractual amount, by the applicable CCF. This treatment would apply to all off-balance sheet items, such as commitments, contingent items, guarantees, certain repo-style transactions, financial standby letters of credit, and forward agreements. The proposed rule, however, introduced new CCFs applicable to certain exposures, such as a higher CCF for PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 commitments with an original maturity of one year or less that are not unconditionally cancelable. Commenters offered a number of suggestions for revising the proposed CCFs that would be applied to offbalance sheet exposures. Commenters generally asked for lower CCFs that, according to the commenters, are more directly aligned with a particular offbalance sheet exposure’s loss history. In addition, some commenters asked the agencies to conduct a calibration study to show that the proposed CCFs were appropriate. The FDIC has decided to retain the proposed CCFs for off-balance sheet exposures without change for purposes of the interim final rule. The FDIC believes that the proposed CCFs meet its goals of improving risk sensitivity and implementing higher capital requirements for certain exposures through a simple methodology. Furthermore, alternatives proposed by commenters, such as exposure measures tied directly to a particular exposure’s loss history, would create significant operational burdens for many smalland mid-sized banking organizations, by requiring them to keep accurate historical records of losses and continuously adjust their capital requirements for certain exposures to account for new loss data. Such a system would be difficult for the FDIC to monitor, as the FDIC would need to verify the accuracy of historical loss data and ensure that capital requirements are properly applied across institutions. Incorporation of additional factors, such as loss history or increasing the number of CCF categories, would detract from the FDIC’s stated goal of simplicity in its capital treatment of off-balance sheet exposures. Additionally, the FDIC believes that the CCFs, as proposed, were properly calibrated to reflect the risk profiles of the exposures to which they are applied and do not believe a calibration study is required. Accordingly, under the interim final rule, as proposed, an FDIC-supervised institution may apply a zero percent CCF to the unused portion of commitments that are unconditionally cancelable by the FDIC-supervised institution. For purposes of the interim final rule, a commitment means any legally binding arrangement that obligates an FDIC-supervised institution to extend credit or to purchase assets. Unconditionally cancelable means a commitment for which an FDICsupervised institution may, at any time, with or without cause, refuse to extend credit (to the extent permitted under applicable law). In the case of a E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations residential mortgage exposure that is a line of credit, an FDIC-supervised institution can unconditionally cancel the commitment if it, at its option, may prohibit additional extensions of credit, reduce the credit line, and terminate the commitment to the full extent permitted by applicable law. If an FDIC-supervised institution provides a commitment that is structured as a syndication, the FDICsupervised institution is only required to calculate the exposure amount for its pro rata share of the commitment. The proposed rule provided a 20 percent CCF for commitments with an original maturity of one year or less that are not unconditionally cancelable by a banking organization, and for selfliquidating, trade-related contingent items that arise from the movement of goods with an original maturity of one year or less. Some commenters argued that the proposed designation of a 20 percent CCF for certain exposures was too high. For example, they requested that the interim final rule continue the current practice of applying a zero percent CCF to all unfunded lines of credit with less than one year maturity, regardless of the lender’s ability to unconditionally cancel the line of credit. They also requested a CCF lower than 20 percent for the unused portions of letters of credit extended to a small, mid-market, or trade finance company with durations of less than one year or less. These commenters asserted that current market practice for these lines have covenants based on financial ratios, and any increase in riskiness that violates the contractual minimum ratios would prevent the borrower from drawing down the unused portion. For purposes of the interim final rule, the FDIC is retaining the 20 percent CCF, as it accounts for the elevated level of risk FDIC-supervised institutions face when extending short-term commitments that are not unconditionally cancelable. Although the FDIC understands certain contractual provisions are common in the market, these practices are not static, and it is more appropriate from a regulatory standpoint to base a CCF on whether a commitment is unconditionally cancellable. An FDICsupervised institution must apply a 20 percent CCF to a commitment with an original maturity of one year or less that is not unconditionally cancellable by the FDIC-supervised institution. The interim final rule also maintains the 20 percent CCF for self-liquidating, traderelated contingent items that arise from the movement of goods with an original maturity of one year or less. The interim final rule also requires an FDIC- VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 supervised institution to apply a 50 percent CCF to commitments with an original maturity of more than one year that are not unconditionally cancelable by the FDIC-supervised institution, and to transaction-related contingent items, including performance bonds, bid bonds, warranties, and performance standby letters of credit. Some commenters requested clarification regarding the treatment of commitments to extend letters of credit. They argued that these commitments are no more risky than commitments to extend loans and should receive similar treatment (20 percent or 50 percent CCF). For purposes of the interim final rule, the FDIC notes that section 33(a)(2) allows FDIC-supervised institutions to apply the lower of the two applicable CCFs to the exposures related to commitments to extend letters of credit. FDIC-supervised institutions will need to make this determination based upon the individual characteristics of each letter of credit. Under the interim final rule, an FDICsupervised institution must apply a 100 percent CCF to off-balance sheet guarantees, repurchase agreements, credit-enhancing representations and warranties that are not securitization exposures, securities lending or borrowing transactions, financial standby letters of credit, and forward agreements, and other similar exposures. The off-balance sheet component of a repurchase agreement equals the sum of the current fair values of all positions the FDIC-supervised institution has sold subject to repurchase. The off-balance sheet component of a securities lending transaction is the sum of the current fair values of all positions the FDICsupervised institution has lent under the transaction. For securities borrowing transactions, the off-balance sheet component is the sum of the current fair values of all non-cash positions the FDIC-supervised institution has posted as collateral under the transaction. In certain circumstances, an FDICsupervised institution may instead determine the exposure amount of the transaction as described in section 37 of the interim final rule. In contrast to the general risk-based capital rules, which require capital for securities lending and borrowing transactions and repurchase agreements that generate an on-balance sheet exposure, the interim final rule requires an FDIC-supervised institution to hold risk-based capital against all repo-style transactions, regardless of whether they generate on-balance sheet exposures, as described in section 324.37 of the interim final rule. One commenter PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 55409 disagreed with this treatment and requested an exemption from the capital treatment for off-balance sheet repostyle exposures. However, the FDIC adopted this approach because banking organizations face counterparty credit risk when engaging in repo-style transactions, even if those transactions do not generate on-balance sheet exposures, and thus should not be exempt from risk-based capital requirements. 2. Credit-Enhancing Representations and Warranties Under the general risk-based capital rules, a banking organization is subject to a risk-based capital requirement when it provides credit-enhancing representations and warranties on assets sold or otherwise transferred to third parties as such positions are considered recourse arrangements.122 However, the general risk-based capital rules do not impose a risk-based capital requirement on assets sold or transferred with representations and warranties that (1) contain early default clauses or similar warranties that permit the return of, or premium refund clauses covering, oneto-four family first-lien residential mortgage loans for a period not to exceed 120 days from the date of transfer; and (2) contain premium refund clauses that cover assets guaranteed, in whole or in part, by the U.S. government, a U.S. government agency, or a U.S. GSE, provided the premium refund clauses are for a period not to exceed 120 days; or (3) permit the return of assets in instances of fraud, misrepresentation, or incomplete documentation.123 In contrast, under the proposal, if a banking organization provides a creditenhancing representation or warranty on assets it sold or otherwise transferred to third parties, including early default clauses that permit the return of, or premium refund clauses covering, oneto-four family residential first mortgage loans, the banking organization would treat such an arrangement as an offbalance sheet guarantee and apply a 100 percent CCF to determine the exposure amount, provided the exposure does not meet the definition of a securitization exposure. The agencies proposed a different treatment than the one under the general risk-based capital rules because of the risk to which banking organizations are exposed while creditenhancing representations and 122 12 CFR part 325, appendix A, section II.B.5(a) (state nonmember banks) and 12 CFR 390.466(b) (state savings associations). 123 12 CFR part 325, appendix A, section II.B.5(a) (state nonmember banks) and 12 CFR 390.466(b) (state savings associations). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55410 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations warranties are in effect. Some commenters asked for clarification on what qualifies as a credit-enhancing representation and warranty, and commenters made numerous suggestions for revising the proposed definition. In particular, they disagreed with the agencies’ proposal to remove the exemptions related to early default clauses and premium refund clauses since these representations and warranties generally are considered to be low risk exposures and banking organizations are not currently required to hold capital against these representations and warranties. Some commenters encouraged the agencies to retain the 120-day safe harbor from the general risk-based capital rules, which would not require holding capital against assets sold with certain early default clauses of 120 days or less. These commenters argued that the proposal to remove the 120-day safe harbor would impede the ability of banking organizations to make loans and would increase the cost of credit to borrowers. Furthermore, certain commenters asserted that removal of the 120-day safe harbor was not necessary for loan portfolios that are well underwritten, those for which put-backs are rare, and where the banking organization maintains robust buyback reserves. After reviewing the comments, the FDIC decided to retain in the interim final rule the 120-day safe harbor in the definition of credit-enhancing representations and warranties for early default and premium refund clauses on one-to-four family residential mortgages that qualify for the 50 percent risk weight as well as for premium refund clauses that cover assets guaranteed, in whole or in part, by the U.S. government, a U.S. government agency, or a U.S. GSE. The FDIC determined that retaining the safe harbor would help to address commenters’ confusion about what qualifies as a creditenhancing representation and warranty. Therefore, consistent with the general risk-based capital rules, under the interim final rule, credit-enhancing representations and warranties will not include (1) early default clauses and similar warranties that permit the return of, or premium refund clauses covering, one-to-four family first-lien residential mortgage loans that qualify for a 50 percent risk weight for a period not to exceed 120 days from the date of transfer; 124 (2) premium refund clauses that cover assets guaranteed by the U.S. 124 These warranties may cover only those loans that were originated within 1 year of the date of transfer. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 government, a U.S. Government agency, or a GSE, provided the premium refund clauses are for a period not to exceed 120 days from the date of transfer; or (3) warranties that permit the return of underlying exposures in instances of misrepresentation, fraud, or incomplete documentation. Some commenters requested clarification from the agencies regarding representations made about the value of the underlying collateral of a sold loan. For example, many purchasers of mortgage loans originated by banking organizations require that the banking organization repurchase the loan if the value of the collateral is other than as stated in the documentation provided to the purchaser or if there were any material misrepresentations in the appraisal process. The FDIC confirms that such representations meets the ‘‘misrepresentation, fraud, or incomplete documentation’’ exclusion in the definition of credit-enhancing representations and warranties and is not subject to capital treatment. A few commenters also requested clarification regarding how the definition of credit-enhancing representations and warranties in the proposal interacts with Federal Home Loan Mortgage Corporation (FHLMC), Federal National Mortgage Association (FNMA), and Government National Mortgage Association (GNMA) sales conventions. These same commenters also requested verification in the interim final rule that mortgages sold with representations and warranties would all receive a 100 percent risk weight, regardless of the characteristics of the mortgage exposure. First, the definition of credit-enhancing representations and warranties described in this interim final rule is separate from the sales conventions required by FLHMA, FNMA, and GNMA. Those entities will continue to set their own requirements for secondary sales, including representation and warranty requirements. Second, the risk weights applied to mortgage exposures themselves are not affected by the inclusion of representations and warranties. Mortgage exposures will continue to receive either a 50 or 100 percent risk weight, as outlined in section 32(g) of this interim final rule, regardless of the inclusion of representations and warranties when they are sold in the secondary market. If such representations and warranties meet the rule’s definition of creditenhancing representations and warranties, then the institution must maintain regulatory capital against the associated credit risk. PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 Some commenters disagreed with the proposed methodology for determining the capital requirement for representations and warranties, and offered alternatives that they argued would conform to existing market practices and better incentivize highquality underwriting. Some commenters indicated that many originators already hold robust buyback reserves and argued that the agencies should require originators to hold adequate liquidity in their buyback reserves, instead of requiring a duplicative capital requirement. Other commenters asked that any capital requirement be directly aligned to that originator’s history of honoring representation and warranty claims. These commenters stated that originators who underwrite high-quality loans should not be required to hold as much capital against their representations and warranties as originators who exhibit what the commenters referred to as ‘‘poor underwriting standards.’’ Finally, a few commenters requested that the agencies completely remove, or significantly reduce, capital requirements for representations and warranties. They argue that the market is able to regulate itself, as a banking organization will not be able to sell its loans in the secondary market if they are frequently put back by the buyers. The FDIC considered these alternatives and has decided to finalize the proposed methodology for determining the capital requirement applied to representations and warranties without change. The FDIC is concerned that buyback reserves could be inadequate, especially if the housing market enters another prolonged downturn. Robust and clear capital requirements, in addition to separate buyback reserves held by originators, better ensure that representation and warranty claims will be fulfilled in times of stress. Furthermore, capital requirements based upon originators’ historical representation and warranty claims are not only operationally difficult to implement and monitor, but they can also be misleading. Underwriting standards at firms are not static and can change over time. The FDIC believes that capital requirements based on past performance of a particular underwriter do not always adequately capture the current risks faced by that firm. The FDIC believes that the incorporation of the 120-day safe harbor in the interim final rule as discussed above addresses many of the commenters’ concerns. Some commenters requested clarification on the duration of the capital treatment for credit-enhancing E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations representations and warranties. For instance, some commenters questioned whether capital is required for creditenhancing representations and warranties after the contractual life of the representations and warranties has expired or whether capital has to be held for the life of the asset. Banking organizations are not required to hold capital for any credit-enhancing representation and warranty after the expiration of the representation or warranty, regardless of the maturity of the underlying loan. Additionally, commenters indicated that market practice for some representations and warranties for sold mortgages stipulates that originators only need to refund the buyer any servicing premiums and other earned fees in cases of early default, rather than requiring putback of the underlying loan to the seller. These commenters sought clarification as to whether the proposal would have required them to hold capital against the value of the underlying loan or only for the premium or fees that could be subject to a refund, as agreed upon in their contract with the buyer. For purposes of the interim final rule, an FDIC-supervised institution must hold capital only for the maximum contractual amount of the FDICsupervised institution’s exposure under the representations and warranties. In the case described by the commenters, the FDIC-supervised institution would hold capital against the value of the servicing premium and other earned fees, rather than the value of the underlying loan, for the duration specified in the representations and warranties agreement. Some commenters also requested exemptions from the proposed treatment of representations and warranties for particular originators, types of transactions, or asset categories. In particular, many commenters asked for an exemption for community banking organizations, claiming that the proposed treatment would lessen credit availability and increase the costs of lending. One commenter argued that bona fide mortgage sale agreements should be exempt from capital requirements. Other commenters requested an exemption for the portion of any off-balance sheet asset that is subject to a risk retention requirement under section 941 of the Dodd-Frank Act and any regulations promulgated thereunder.125 Some commenters also requested that the agencies delay action on the proposal until the risk retention rule is finalized. Other commenters also requested exemptions for qualified 125 See 15 U.S.C. 78o–11, et seq. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 mortgages (QM) and ‘‘prime’’ mortgage loans. The FDIC has decided not to adopt any of the specific exemptions suggested by the commenters. Although community banking organizations are critical to ensure the flow of credit to small businesses and individual borrowers, providing them with an exemption from the proposed treatment of credit-enhancing representations and warranties would be inconsistent with safety and soundness because the risks from these exposures to community banking organizations are no different than those to other banking organizations. The FDIC also has not provided exemptions in this rulemaking to portions of off-balance sheet assets subject to risk retention, QM, and ‘‘prime loans.’’ The relevant agencies have not yet adopted a final rule implementing the risk retention provisions of section 941 of the DoddFrank Act, and the FDIC, therefore, does not believe it is appropriate to provide an exemption relating to risk retention in this interim final rule. In addition, while the QM rulemaking is now final,126 the FDIC believes it is appropriate to first evaluate how the QM designation affects the mortgage market before requiring less capital to be held against off-balance sheet assets that cover these loans. As noted above, the incorporation in the interim final rule of the 120-day safe harbor addresses many of the concerns about burden. The risk-based capital treatment for off-balance sheet items in this interim final rule is consistent with section 165(k) of the Dodd-Frank Act which provides that, in the case of a BHC with $50 billion or more in total consolidated assets, the computation of capital, for purposes of meeting capital requirements, shall take into account any off-balance-sheet activities of the company.127 The interim final rule complies with the requirements of section 165(k) of the Dodd-Frank Act by requiring a BHC to hold risk-based capital for its off-balance sheet exposures, as described in sections 126 See 12 CFR Part 1026. 165(k) of the Dodd-Frank Act (12 U.S.C. 5365(k)). This section defines an off-balance sheet activity as an existing liability of a company that is not currently a balance sheet liability, but may become one upon the happening of some future event. Such transactions may include direct credit substitutes in which a banking organization substitutes its own credit for a third party; irrevocable letters of credit; risk participations in bankers’ acceptances; sale and repurchase agreements; asset sales with recourse against the seller; interest rate swaps; credit swaps; commodities contracts; forward contracts; securities contracts; and such other activities or transactions as the Board may define through a rulemaking. 127 Section PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 55411 324.31, 324.33, 324.34 and 324.35 of the interim final rule. D. Over-the-Counter Derivative Contracts In the Standardized Approach NPR, the agencies proposed generally to retain the treatment of OTC derivatives provided under the general risk-based capital rules, which is similar to the current exposure method (CEM) for determining the exposure amount for OTC derivative contracts contained in the Basel II standardized framework.128 Proposed revisions to the treatment of the OTC derivative contracts included an updated definition of an OTC derivative contract, a revised conversion factor matrix for calculating the PFE, a revision of the criteria for recognizing the netting benefits of qualifying master netting agreements and of financial collateral, and the removal of the 50 percent risk weight cap for OTC derivative contracts. The agencies received a number of comments on the proposed CEM relating to OTC derivatives. These comments generally focused on the revised conversion factor matrix, the proposed removal of the 50 percent cap on risk weights for OTC derivative transactions in the general risk-based capital rules, and commenters’ view that there is a lack of risk sensitivity in the calculation of the exposure amount of OTC derivatives and netting benefits. A specific discussion of the comments on particular aspects of the proposal follows. One commenter asserted that the proposed conversion factors for common interest rate and foreign exchange contracts, and risk participation agreements (a simplified form of credit default swaps) (set forth in Table 19 below), combined with the removal of the 50 percent risk weight cap, would drive up banking organizations’ capital requirements associated with these routine transactions and result in much higher transaction costs for small businesses. Another commenter asserted that the zero percent conversion factor assigned to interest rate derivatives with a remaining maturity of one year or less is not appropriate as the PFE incorrectly assumes all interest rate derivatives 128 The general risk-based capital rules for state savings associations regarding the calculation of credit equivalent amounts for derivative contracts differ from the rules for other banking organizations. (See 12 CFR 390.466(a)(2)). The state savings association rules address only interest rate and foreign exchange rate contracts and include certain other differences. Accordingly, the description of the general risk-based capital rules in this preamble primarily reflects the rules applicable to state banks. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55412 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations always can be covered by taking a position in a liquid market. The FDIC acknowledges that the standardized matrix of conversion factors may be too simplified for some FDIC-supervised institutions. The FDIC believes, however, that the matrix approach appropriately balances the policy goals of simplicity and risksensitivity, and that the conversion factors themselves have been appropriately calibrated for the products to which they relate. Some commenters supported retention of the 50 percent risk weight cap for derivative exposures under the general risk-based capital rules. Specifically, one commenter argued that the methodology for calculating the exposure amount without the 50 percent risk weight cap would result in inappropriately high capital charge unless the methodology were amended to recognize the use of netting and collateral. Accordingly, the commenter encouraged the agencies to retain the 50 percent risk weight cap until the BCBS enhances the CEM to improve risksensitivity. The FDIC believes that as the market for derivatives has developed, the types of counterparties acceptable to participants have expanded to include counterparties that merit a risk weight greater than 50 percent. In addition, the FDIC is aware of the ongoing work of the BCBS to improve the current exposure method and expect to consider any necessary changes to update the exposure amount calculation when the BCBS work is completed. Some commenters suggested that the agencies allow the use of internal models approved by the primary Federal supervisor as an alternative to the proposal, consistent with Basel III. The FDIC chose not to incorporate all of the methodologies included in the Basel II standardized framework in the interim final rule. The FDIC believes that, given the range of FDIC-supervised institutions that are subject to the interim final rule in the United States, it is more appropriate to permit only the proposed non-models based methodology for calculating OTC derivatives exposure amounts under the standardized approach. For larger and more complex FDIC-supervised institutions, the use of the internal model methodology and other modelsbased methodologies is permitted under the advanced approaches rule. One commenter asked the agencies to provide a definition for ‘‘netting,’’ as the meaning of this term differs widely under various master netting agreements used in industry practice. Another commenter asserted that net exposures VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 are likely to understate actual exposures and the risk of early close-out posed to banking organizations facing financial difficulties, that the conversion factors for PFE are inappropriate, and that a better measure of risk tied to gross exposure is needed. With respect to the definition of netting, the FDIC notes that the definition of ‘‘qualifying master netting agreement’’ provides a functional definition of netting. With respect to the use of net exposure for purposes of determining PFE, the FDIC believes that, in light of the existing international framework to enforce netting arrangements together with the conditions for recognizing netting that are included in this interim final rule, the use of net exposure is appropriate in the context of a risk-based counterparty credit risk charge that is specifically intended to address default risk. The interim final rule also continues to limit full recognition of netting for purposes of calculating PFE for counterparty credit risk under the standardized approach.129 Other commenters suggested adopting broader recognition of netting under the PFE calculation for netting sets, using a factor of 85 percent rather than 60 percent in the formula for recognizing netting effects to be consistent with the BCBS CCP interim framework (which is defined and discussed in section VIII.E of this preamble, below). Another commenter suggested implementing a 15 percent haircut on the calculated exposure amount for failure to recognize risk mitigants and portfolio diversification. With respect to the commenters’ request for greater recognition of netting in the calculation of PFE, the FDIC notes that the BCBS CCP interim framework’s use of 85 percent recognition of netting was limited to the calculation of the hypothetical capital requirement of the QCCP for purposes of determining a clearing member banking organization’s risk-weighted asset amount for its default fund contribution. As such, the interim final rule retains the proposed formula for recognizing netting effects for OTC derivative contracts that was set out in the proposal. The FDIC expects to consider whether it would be necessary to propose any changes to the CEM once BCBS discussions on this topic are complete. The proposed rule placed a cap on the PFE of sold credit protection, equal to the net present value of the amount of unpaid premiums. One commenter questioned the appropriateness of the proposed cap, and suggested that a 129 See section 324.34(a)(2) of the interim final rule. PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 seller’s exposure be measured as the gross exposure amount of the credit protection provided on the name referenced in the credit derivative contract. The FDIC believes that the proposed approach is appropriate for measuring counterparty credit risk because it reflects the amount an FDICsupervised institution may lose on its exposure to the counterparty that purchased protection. The exposure amount on a sold credit derivative would be calculated separately under section 34(a). Another commenter asserted that current credit exposure (netted and unnetted) understates or ignores the risk that the mark is inaccurate. Generally, the FDIC expects an FDIC-supervised institution to have in place policies and procedures regarding the valuation of positions, and that those processes would be reviewed in connection with routine and periodic supervisory examinations of an FDIC-supervised institution. The interim final rule generally adopts the proposed treatment for OTC derivatives without change. Under the interim final rule, as under the general risk-based capital rules, an FDICsupervised institution is required to hold risk-based capital for counterparty credit risk for an OTC derivative contract. As defined in the rule, a derivative contract is a financial contract whose value is derived from the values of one or more underlying assets, reference rates, or indices of asset values or reference rates. A derivative contract includes an interest rate, exchange rate, equity, or a commodity derivative contract, a credit derivative, and any other instrument that poses similar counterparty credit risks. Derivative contracts also include unsettled securities, commodities, and foreign exchange transactions with a contractual settlement or delivery lag that is longer than the lesser of the market standard for the particular instrument or five business days. This applies, for example, to mortgagebacked securities (MBS) transactions that the GSEs conduct in the To-BeAnnounced market. Under the interim final rule, an OTC derivative contract does not include a derivative contract that is a cleared transaction, which is subject to a specific treatment as described in section VIII.E of this preamble. However, an OTC derivative contract includes an exposure of a banking organization that is a clearing member banking organization to its clearing member client where the clearing member banking organization is either acting as a financial intermediary and E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations enters into an offsetting transaction with a CCP or where the clearing member banking organization provides a guarantee to the CCP on the performance of the client. The rationale for this treatment is the banking organization’s continued exposure directly to the risk of the clearing member client. In recognition of the shorter close-out period for these transactions, however, the interim final rule permits an FDIC-supervised institution to apply a scaling factor to recognize the shorter holding period as discussed in section VIII.E of this preamble. To determine the risk-weighted asset amount for an OTC derivative contract under the interim final rule, an FDICsupervised institution must first determine its exposure amount for the contract and then apply to that amount a risk weight based on the counterparty, eligible guarantor, or recognized collateral. For a single OTC derivative contract that is not subject to a qualifying master netting agreement (as defined further below in this section), the rule requires the exposure amount to be the sum of (1) the FDIC-supervised institution’s current credit exposure, which is the 55413 greater of the fair value or zero, and (2) PFE, which is calculated by multiplying the notional principal amount of the OTC derivative contract by the appropriate conversion factor, in accordance with Table 19 below. Under the interim final rule, the conversion factor matrix includes the additional categories of OTC derivative contracts as illustrated in Table 19. For an OTC derivative contract that does not fall within one of the specified categories in Table 19, the interim final rule requires PFE to be calculated using the ‘‘other’’ conversion factor. TABLE 19—CONVERSION FACTOR MATRIX FOR OTC DERIVATIVE CONTRACTS 130 Remaining maturity 131 Foreign exchange rate and gold Credit (investment-grade reference asset) 132 Credit (non-investmentgrade reference asset) 0.00 0.01 0.05 0.10 0.06 0.07 0.10 0.005 0.05 0.05 0.10 0.08 0.07 0.12 0.015 0.075 0.05 0.10 0.10 0.08 0.15 Interest rate One year or less ...... Greater than one year and less than or equal to five years ..................... Greater than five years ..................... emcdonald on DSK67QTVN1PROD with RULES2 For multiple OTC derivative contracts subject to a qualifying master netting agreement, an FDIC-supervised institution must calculate the exposure amount by adding the net current credit exposure and the adjusted sum of the PFE amounts for all OTC derivative contracts subject to the qualifying master netting agreement. Under the interim final rule, the net current credit exposure is the greater of zero and the net sum of all positive and negative fair values of the individual OTC derivative contracts subject to the qualifying master netting agreement. The adjusted sum of the PFE amounts must be calculated as described in section 34(a)(2)(ii) of the interim final rule. 130 For a derivative contract with multiple exchanges of principal, the conversion factor is multiplied by the number of remaining payments in the derivative contract. 131 For a derivative contract that is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that the market value of the contract is zero, the remaining maturity equals the time until the next reset date. For an interest rate derivative contract with a remaining maturity of greater than one year that meets these criteria, the minimum conversion factor is 0.005. 132 A FDIC-supervised institution must use the column labeled ‘‘Credit (investment-grade reference asset)’’ for a credit derivative whose reference asset is an outstanding unsecured long-term debt security without credit enhancement that is investment grade. A FDIC-supervised institution must use the column labeled ‘‘Credit (non-investment-grade reference asset)’’ for all other credit derivatives. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Under the interim final rule, to recognize the netting benefit of multiple OTC derivative contracts, the contracts must be subject to a qualifying master netting agreement; however, unlike under the general risk-based capital rules, under the interim final rule for most transactions, an FDIC-supervised institution may rely on sufficient legal review instead of an opinion on the enforceability of the netting agreement as described below.133 The interim final rule defines a qualifying master netting agreement as any written, legally enforceable netting agreement that creates a single legal obligation for all individual transactions covered by the agreement upon an event of default (including receivership, insolvency, liquidation, or similar proceeding) provided that certain conditions set forth in section 3 of the interim final rule are met.134 These conditions 133 Under the general risk-based capital rules, to recognize netting benefits an FDIC-supervised institution must enter into a bilateral master netting agreement with its counterparty and obtain a written and well-reasoned legal opinion of the enforceability of the netting agreement for each of its netting agreements that cover OTC derivative contracts. 134 The interim final rule adds a new section 3: Operational requirements for counterparty credit risk. This section organizes substantive requirements related to cleared transactions, eligible margin loans, qualifying cross-product master netting agreements, qualifying master netting agreements, and repo-style transactions in a central place to assist FDIC-supervised institutions PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 Precious metals (except gold) Equity Other include requirements with respect to the FDIC-supervised institution’s right to terminate the contract and liquidate collateral and meeting certain standards with respect to legal review of the agreement to ensure its meets the criteria in the definition. The legal review must be sufficient so that the FDIC-supervised institution may conclude with a well-founded basis that, among other things, the contract would be found legal, binding, and enforceable under the law of the relevant jurisdiction and that the contract meets the other requirements of the definition. In some cases, the legal review requirement could be met by reasoned reliance on a commissioned legal opinion or an in-house counsel analysis. In other cases, for example, those involving certain new derivative transactions or derivative counterparties in jurisdictions where an FDICsupervised institution has little experience, the FDIC-supervised institution would be expected to obtain an explicit, written legal opinion from external or internal legal counsel addressing the particular situation. Under the interim final rule, if an OTC derivative contract is collateralized by financial collateral, an FDICsupervised institution must first in determining their legal responsibilities. These substantive requirements are consistent with those included in the proposal. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55414 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations determine the exposure amount of the OTC derivative contract as described in this section of the preamble. Next, to recognize the credit risk mitigation benefits of the financial collateral, an FDIC-supervised institution could use the simple approach for collateralized transactions as described in section 324.37(b) of the interim final rule. Alternatively, if the financial collateral is marked-to-market on a daily basis and subject to a daily margin maintenance requirement, an FDIC-supervised institution could adjust the exposure amount of the contract using the collateral haircut approach described in section 324.37(c) of the interim final rule. Similarly, if an FDIC-supervised institution purchases a credit derivative that is recognized under section 324.36 of the interim final rule as a credit risk mitigant for an exposure that is not a covered position under subpart F, it is not required to compute a separate counterparty credit risk capital requirement for the credit derivative, provided it does so consistently for all such credit derivative contracts. Further, where these credit derivative contracts are subject to a qualifying master netting agreement, the FDICsupervised institution must either include them all or exclude them all from any measure used to determine the counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. Under the interim final rule, an FDICsupervised institution must treat an equity derivative contract as an equity exposure and compute its risk-weighted asset amount according to the simple risk-weight approach (SRWA) described in section 324.52 (unless the contract is a covered position under the market risk rule). If the FDIC-supervised institution risk weights a contract under the SRWA described in section 324.52, it may choose not to hold risk-based capital against the counterparty risk of the equity contract, so long as it does so for all such contracts. Where the OTC equity contracts are subject to a qualified master netting agreement, an FDIC-supervised institution either includes or excludes all of the contracts from any measure used to determine counterparty credit risk exposures. If the FDIC-supervised institution is treating an OTC equity derivative contract as a covered position under subpart F, it also must calculate a risk-based capital requirement for counterparty credit risk of the contract under this section. In addition, if an FDIC-supervised institution provides protection through a credit derivative that is not a covered position under subpart F of the interim VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 final rule, it must treat the credit derivative as an exposure to the underlying reference asset and compute a risk-weighted asset amount for the credit derivative under section 324.32 of the interim final rule. The FDICsupervised institution is not required to compute a counterparty credit risk capital requirement for the credit derivative, as long as it does so consistently for all such OTC credit derivative contracts. Further, where these credit derivative contracts are subject to a qualifying master netting agreement, the FDIC-supervised institution must either include all or exclude all such credit derivatives from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. Where the FDIC-supervised institution provides protection through a credit derivative treated as a covered position under subpart F, it must compute a supplemental counterparty credit risk capital requirement using an amount determined under section 324.34 for OTC credit derivative contracts or section 35 for credit derivatives that are cleared transactions. In either case, the PFE of the protection provider would be capped at the net present value of the amount of unpaid premiums. Under the interim final rule, the risk weight for OTC derivative transactions is not subject to any specific ceiling, consistent with the Basel capital framework. Although the FDIC generally adopted the proposal without change, the interim final rule has been revised to add a provision regarding the treatment of a clearing member FDIC-supervised institution’s exposure to a clearing member client (as described below under ‘‘Cleared Transactions,’’ a transaction between a clearing member FDIC-supervised institution and a client is treated as an OTC derivative exposure). However, the interim final rule recognizes the shorter close-out period for cleared transactions that are derivative contracts, such that a clearing member FDIC-supervised institution can reduce its exposure amount to its client by multiplying the exposure amount by a scaling factor of no less than 0.71. See section VIII.E of this preamble, below, for additional discussion. E. Cleared Transactions The BCBS and the FDIC support incentives designed to encourage clearing of derivative and repo-style PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 transactions 135 through a CCP wherever possible in order to promote transparency, multilateral netting, and robust risk-management practices. Although there are some risks associated with CCPs, as discussed below, the FDIC believes that CCPs generally help improve the safety and soundness of the derivatives and repostyle transactions markets through the multilateral netting of exposures, establishment and enforcement of collateral requirements, and the promotion of market transparency. As discussed in the proposal, when developing Basel III, the BCBS recognized that as more transactions move to central clearing, the potential for risk concentration and systemic risk increases. To address these concerns, in the period preceding the proposal, the BCBS sought comment on a more risksensitive approach for determining capital requirements for banking organizations’ exposures to CCPs.136 In addition, to encourage CCPs to maintain strong risk-management procedures, the BCBS sought comment on a proposal for lower risk-based capital requirements for derivative and repo-style transaction exposures to CCPs that meet the standards established by the Committee on Payment and Settlement Systems (CPSS) and International Organization of Securities Commissions (IOSCO).137 Exposures to such entities, termed QCCPs in the interim final rule, would be subject to lower risk weights than exposures to CCPs that did not meet those criteria. Consistent with the BCBS proposals and the CPSS–IOSCO standards, the agencies sought comment on specific risk-based capital requirements for cleared derivative and repo-style transactions that are designed to incentivize the use of CCPs, help reduce counterparty credit risk, and promote strong risk management of CCPs to mitigate their potential for systemic risk. In contrast to the general risk-based capital rules, which permit a banking organization to exclude certain derivative contracts traded on an exchange from the risk-based capital calculation, the proposal would have required a banking organization to hold risk-based capital for an outstanding derivative contract or a repo-style 135 See section 324.2 of the interim final rule for the definition of a repo-style transaction. 136 See ‘‘Capitalisation of Banking Organization Exposures to Central Counterparties’’ (November 2011) (CCP consultative release), available at https:// www.bis.org/publ/bcbs206.pdf. 137 See CPSS–IOSCO, ‘‘Recommendations for Central Counterparties’’ (November 2004), available at https://www.bis.org/publ/cpss64.pdf?noframes=1. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations transaction that has been cleared through a CCP, including an exchange. The proposal also included a capital requirement for default fund contributions to CCPs. In the case of non-qualifying CCPs (that is, CCPs that do not meet the risk-management, supervision, and other standards for QCCPs outlined in the proposal), the risk-weighted asset amount for default fund contributions to such CCPs would be equal to the sum of the banking organization’s default fund contributions to the CCPs multiplied by 1,250 percent. In the case of QCCPs, the risk-weighted asset amount would be calculated according to a formula based on the hypothetical capital requirement for a QCCP, consistent with the Basel capital framework. The proposal included a formula with inputs including the exposure amount of transactions cleared through the QCCP, collateral amounts, the number of members of the QCCP, and default fund contributions. Following issuance of the proposal, the BCBS issued an interim framework for the capital treatment of bank exposures to CCPs (BCBS CCP interim framework).138 The BCBS CCP interim framework reflects several key changes from the CCP consultative release, including: (1) A provision to allow a clearing member banking organization to apply a scalar when using the CEM (as described below) in the calculation of its exposure amount to a client (or use a reduced margin period of risk when using the internal models methodology (IMM) to calculate exposure at default (EAD) under the advanced approaches rule); (2) revisions to the risk weights applicable to a clearing member banking organization’s exposures when such clearing member banking organization guarantees QCCP performance; (3) a provision to permit clearing member banking organizations to choose from one of two formulaic methodologies for determining the capital requirement for default fund contributions; and (4) revisions to the CEM formula to recognize netting to a greater extent for purposes of calculating the capital requirement for default fund contributions. The agencies received a number of comments on the proposal relating to cleared transactions. Commenters also encouraged the agencies to revise certain aspects of the proposal in a manner consistent with the BCBS CCP interim framework. 138 See ‘‘Capital requirements for bank exposures to central counterparties’’ (July 2012), available at https://www.bis.org/publ/bcbs227.pdf. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Some commenters asserted that the definition of QCCP should be revised, specifically by including a definitive list of QCCPs rather than requiring each banking organization to demonstrate that a CCP meets certain qualifying criteria. The FDIC believes that a static list of QCCPs would not reflect the potentially dynamic nature of a CCP, and that FDIC-supervised institutions are situated to make this determination on an ongoing basis. Some commenters recommended explicitly including derivatives clearing organizations (DCOs) and securitiesbased swap clearing agencies in the definition of a QCCP. Commenters also suggested including in the definition of QCCP any CCP that the CFTC or SEC exempts from registration because it is deemed by the CFTC or SEC to be subject to ‘‘comparable, comprehensive supervision’’ by another regulator. The FDIC notes that such registration (or exemption from registration based on being subject to ‘‘comparable, comprehensive supervision’’) does not necessarily mean that the CCP is subject to, or in compliance with, the standards established by the CPSS and IOSCO. In contrast, a designated FMU, which is included in the definition of QCCP, is subject to regulation that corresponds to such standards. Another commenter asserted that, consistent with the BCBS CCP interim framework, the interim final rule should provide for the designation of a QCCP by the agencies in the absence of a national regime for authorization and licensing of CCPs. The interim final rule has not been amended to include this aspect of the BCBS CCP interim framework because the FDIC believes a national regime for authorizing and licensing CCPs is a critical mechanism to ensure the compliance and ongoing monitoring of a CCP’s adherence to internationally recognized riskmanagement standards. Another commenter requested that a three-month grace period apply for CCPs that cease to be QCCPs. The FDIC notes that such a grace period was included in the proposed rule, and the interim final rule retains the proposed definition without substantive change.139 With respect to the proposed definition of cleared transaction, some commenters asserted that the definition should recognize omnibus accounts because their collateral is bankruptcyremote. The FDIC agrees with these commenters and has revised the operational requirements for cleared 139 This provision is located in sections 324.35 and 324.133 of the interim final rule. PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 55415 transactions to include an explicit reference to such accounts. The BCBS CCP interim framework requires trade portability to be ‘‘highly likely,’’ as a condition of whether a trade satisfies the definition of cleared transaction. One commenter who encouraged the agencies to adopt the standards set forth in the BCBS CCP interim framework sought clarification of the meaning of ‘‘highly likely’’ in this context. The FDIC clarifies that, consistent with the BCBS CCP interim framework, if there is clear precedent for transactions to be transferred to a non-defaulting clearing member upon the default of another clearing member (commonly referred to as ‘‘portability’’) and there are no indications that such practice will not continue, then these factors should be considered, when assessing whether client positions are portable. The definition of ‘‘cleared transaction’’ in the interim final rule is discussed in further detail below. Another commenter sought clarification on whether reasonable reliance on a commissioned legal opinion for foreign financial jurisdictions could satisfy the ‘‘sufficient legal review’’ requirement for bankruptcy remoteness of client positions. The FDIC believes that reasonable reliance on a commissioned legal opinion could satisfy this requirement. Another commenter expressed concern that the proposed framework for cleared transactions would capture securities clearinghouses, and encouraged the agencies to clarify their intent with respect to such entities for purposes of the interim final rule. The FDIC notes that the definition of ‘‘cleared transaction’’ refers only to OTC derivatives and repo-style transactions. As a result, securities clearinghouses are not within the scope of the cleared transactions framework. One commenter asserted that the agencies should recognize varying closeout period conventions for specific cleared products, specifically exchangetraded derivatives. This commenter also asserted that the agencies should adjust the holding period assumptions or allow CCPs to use alternative methods to compute the appropriate haircut for cleared transactions. For purposes of this interim final rule, the FDIC retained a standard close-out period in the interest of avoiding unnecessary complexity, and note that cleared transactions with QCCPs attract extremely low risk weights (generally, 2 or 4 percent), which, in part, is in recognition of the shorter close-out period involved in cleared transactions. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55416 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Another commenter requested confirmation that the risk weight applicable to the trade exposure amount for a cleared credit default swap (CDS) could be substituted for the risk weight assigned to an exposure that was hedged by the cleared CDS, that is, the substitution treatment described in sections 324.36 and 324.134 would apply. The FDIC confirms that under the interim final rule, an FDIC-supervised institution may apply the substitution treatment of sections 324.36 or 324.134 to recognize the credit risk mitigation benefits of a cleared CDS as long as the CDS is an eligible credit derivative and meets the other criteria for recognition. Thus, if an FDIC-supervised institution purchases an eligible credit derivative as a hedge of an exposure and the eligible credit derivative qualifies as a cleared transaction, the FDIC-supervised institution may substitute the risk weight applicable to the cleared transaction under sections 324.35 or 324.133 of the interim final rule (instead of using the risk weight associated with the protection provider).140 Furthermore, the FDIC has modified the definition of eligible guarantor to include a QCCP. Another commenter asserted that the interim final rule should decouple the risk weights applied to collateral exposure and those assigned to other components of trade exposure to recognize the separate components of risk. The FDIC notes that, if collateral is bankruptcy remote, then it would not be included in the trade exposure amount calculation (see sections 324.35(b)(2) and 324.133(b)(2) of the interim final rule). The FDIC also notes that such collateral must be risk weighted in accordance with other sections of the interim final rule as appropriate, to the extent that the posted collateral remains an asset on an FDIC-supervised institution’s balance sheet. A number of commenters addressed the use of the CEM for purposes of calculating a capital requirement for a default fund contribution to a CCP (Kccp).141 Some commenters asserted that the CEM is not appropriate for determining the hypothetical capital requirement for a QCCP (Kccp) under the proposed formula because it lacks risk sensitivity and sophistication, and was not developed for centrally-cleared transactions. Another commenter asserted that the use of CEM should be 140 See ‘‘Basel III counterparty credit risk and exposures to central counterparties—Frequently asked questions’’ (December 2012 (update of FAQs published in November 2012)), available at https:// www.bis.org/publ/bcbs237.pdf. 141 See section VIII.D of this preamble for a description of the CEM. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 clarified in the clearing context, specifically, whether the modified CEM approach would permit the netting of offsetting positions booked under different ‘‘desk IDs’’ or ‘‘hub accounts’’ for a given clearing member banking organization. Another commenter encouraged the agencies to allow banking organizations to use the IMM to calculate Kccp. Another commenter encouraged the agencies to continue to work with the BCBS to harmonize international and domestic capital rules for cleared transactions. Although the FDIC recognizes that the CEM has certain limitations, it considers the CEM, as modified for cleared transactions, to be a reasonable approach that would produce consistent results across banking organizations. Regarding the commenter’s request for clarification of netting positions across ‘‘desk IDs’’ or ‘‘hub accounts,’’ the CEM would recognize netting across such transactions if such netting is legally enforceable upon a CCP’s default. Moreover, the FDIC believes that the use of models either by the CCP, whose model would not be subject to review and approval by the FDIC, or by the banking organizations, whose models may vary significantly, likely would produce inconsistent results that would not serve as a basis for comparison across banking organizations. The FDIC recognizes that additional work is being performed by the BCBS to revise the CCP capital framework and the CEM. The FDIC expects to modify the interim final rule to incorporate the BCBS improvements to the CCP capital framework and CEM through the normal rulemaking process. Other commenters suggested that the agencies not allow preferential treatment for clearinghouses, which they asserted are systemically critical institutions. In addition, some of these commenters argued that the agency clearing model should receive a more favorable capital requirement because the agency relationship facilitates protection and portability of client positions in the event of a clearing member default, compared to the backto-back principal model. As noted above, the FDIC acknowledges that as more transactions move to central clearing, the potential for risk concentration and systemic risk increases. As noted in the proposal, the risk weights applicable to cleared transactions with QCCPs (generally 2 or 4 percent) represent an increase for many cleared transactions as compared to the general risk-based capital rules (which exclude from the risk-based ratio calculations exchange rate contracts with an original maturity of fourteen or PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 fewer calendar days and derivative contracts traded on exchanges that require daily receipt and payment of cash variation margin),142 in part to reflect the increased concentration and systemic risk inherent in such transactions. In regards to the agency clearing model, the FDIC notes that a clearing member banking organization that acts as an agent for a client and that guarantees the client’s performance to the QCCP would have no exposure to the QCCP to risk weight. The exposure arising from the guarantee would be treated as an OTC derivative with a reduced holding period, as discussed below. Another commenter suggested that the interim final rule address the treatment of unfunded default fund contribution amounts and potential future contributions to QCCPs, noting that the treatment of these potential exposures is not addressed in the BCBS CCP interim framework. The FDIC has clarified in the interim final rule that if an FDIC-supervised institution’s unfunded default fund contribution to a CCP is unlimited, the FDIC will determine the risk-weighted asset amount for such default fund contribution based on factors such as the size, structure, and membership of the CCP and the riskiness of its transactions. The interim final rule does not contemplate unlimited default fund contributions to QCCPs because defined default fund contribution amounts are a prerequisite to being a QCCP. Another commenter asserted that it is unworkable to require securities lending transactions to be conducted through a CCP, and that it would be easier and more sensible to make the appropriate adjustments in the interim final rule to ensure a capital treatment for securities lending transactions that is proportional to their actual risks. The FDIC notes that the proposed rule would not have required securities lending transactions to be cleared. The FDIC also acknowledges that clearing may not be widely available for securities lending transactions, and believes that the collateral haircut approach (sections 324.37(c) and 324.132(b) of the interim final rule) and for advanced approaches FDIC-supervised institutions, the simple value-at-risk (VaR) and internal models methodologies (sections 324.132(b)(3) and (d) of the interim final rule) are an appropriately risk-sensitive exposure measure for non-cleared securities lending exposures. One commenter asserted that end users and client-cleared trades would be 142 See 12 CFR part 325, appendix A, section II.E.2. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations disadvantaged by the proposal. Although there may be increased transaction costs associated with the introduction of the CCP framework, the FDIC believes that the overall risk mitigation that should result from the capital requirements generated by the framework will help promote financial stability, and that the measures the FDIC has taken in the interim final rule to incentivize client clearing are aimed at addressing the commenters’ concerns. Several commenters suggested that the proposed rule created a disincentive for client clearing because of the clearing member banking organization’s exposure to the client. The FDIC agrees with the need to mitigate disincentives for client clearing in the methodology, and has amended the interim final rule to reflect a lower margin period of risk, or holding period, as applicable, as discussed further below. Commenters suggested delaying implementation of a cleared transactions framework in the interim final rule until the BCBS CCP interim framework is finalized, implementing the BCBS CCP interim framework in the interim final rule pending finalization of the BCBS interim framework, or providing a transition period for banking organizations to be able to comply with some of the requirements. A number of commenters urged the agencies to incorporate all substantive changes of the BCBS CCP interim framework, ranging from minor adjustments to more material modifications. After considering the comments and reviewing the standards in the BCBS CCP interim framework, the FDIC believes that the modifications to capital standards for cleared transactions in the BCBS CCP interim framework are appropriate and believes that they would result in modifications that address many commenters’ concerns. Furthermore, the FDIC believes that it is prudent to implement the BCBS CCP interim framework, rather than wait for the final framework, because the changes in the BCBS CCP interim framework represent a sound approach to mitigating the risks associated with cleared transactions. Accordingly, the FDIC has incorporated the material elements of the BCBS CCP interim framework into the interim final rule. In addition, given the delayed effective date of the interim final rule, the FDIC believes that an additional transition period, as suggested by some commenters, is not necessary. The material changes to the proposed rule to incorporate the CCP interim rule are described below. Other than these changes, the interim final rule retains VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the capital requirements for cleared transaction exposures generally as proposed by the agencies. As noted in the proposal, the international discussions are ongoing on these issues, and the FDIC will revisit this issue once the Basel capital framework is revised. 1. Definition of Cleared Transaction The interim final rule defines a cleared transaction as an exposure associated with an outstanding derivative contract or repo-style transaction that an FDIC-supervised institution or clearing member has entered into with a CCP (that is, a transaction that a CCP has accepted).143 Cleared transactions include the following: (1) A transaction between a CCP and a clearing member FDICsupervised institution for the FDICsupervised institution’s own account; (2) a transaction between a CCP and a clearing member FDIC-supervised institution acting as a financial intermediary on behalf of its clearing member client; (3) a transaction between a client FDIC-supervised institution and a clearing member where the clearing member acts on behalf of the client FDIC-supervised institution and enters into an offsetting transaction with a CCP; and (4) a transaction between a clearing member client and a CCP where a clearing member FDIC-supervised institution guarantees the performance of the clearing member client to the CCP. Such transactions must also satisfy additional criteria provided in section 3 of the interim final rule, including bankruptcy remoteness of collateral, transferability criteria, and portability of the clearing member client’s position. As explained above, the FDIC has modified the definition in the interim final rule to specify that regulated omnibus accounts meet the requirement for bankruptcy remoteness. An FDIC-supervised institution is required to calculate risk-weighted assets for all of its cleared transactions, whether the FDIC-supervised institution acts as a clearing member (defined as a member of, or direct participant in, a CCP that is entitled to enter into 143 For example, the FDIC expects that a transaction with a derivatives clearing organization (DCO) would meet the criteria for a cleared transaction. A DCO is a clearinghouse, clearing association, clearing corporation, or similar entity that enables each party to an agreement, contract, or transaction to substitute, through novation or otherwise, the credit of the DCO for the credit of the parties; arranges or provides, on a multilateral basis, for the settlement or netting of obligations; or otherwise provides clearing services or arrangements that mutualize or transfer credit risk among participants. To qualify as a DCO, an entity must be registered with the U.S. Commodity Futures Trading Commission and comply with all relevant laws and procedures. PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 55417 transactions with the CCP) or a clearing member client (defined as a party to a cleared transaction associated with a CCP in which a clearing member acts either as a financial intermediary with respect to the party or guarantees the performance of the party to the CCP). Derivative transactions that are not cleared transactions because they do not meet all the criteria are OTC derivative transactions. For example, if a transaction submitted to the CCP is not accepted by the CCP because the terms of the transaction submitted by the clearing members do not match or because other operational issues are identified by the CCP, the transaction does not meet the definition of a cleared transaction and is an OTC derivative transaction. If the counterparties to the transaction resolve the issues and resubmit the transaction and it is accepted, the transaction would then be a cleared transaction. A cleared transaction does not include an exposure of an FDIC-supervised institution that is a clearing member to its clearing member client where the FDIC-supervised institution is either acting as a financial intermediary and enters into an offsetting transaction with a CCP or where the FDIC-supervised institution provides a guarantee to the CCP on the performance of the client. Under the standardized approach, as discussed below, such a transaction is an OTC derivative transaction with the exposure amount calculated according to section 324.34(e) of the interim final rule or a repo-style transaction with the exposure amount calculated according to section 324.37(c) of the interim final rule. Under the advanced approaches rule, such a transaction is treated as either an OTC derivative transaction with the exposure amount calculated according to sections 324.132(c)(8) or (d)(5)(iii)(C) of the interim final rule or a repo-style transaction with the exposure amount calculated according to sections 324.132(b) or (d) of the interim final rule. 2. Exposure Amount Scalar for Calculating for Client Exposures Under the proposal, a transaction between a clearing member FDICsupervised institution and a client was treated as an OTC derivative exposure, with the exposure amount calculated according to sections 324.34 or 324.132 of the proposal. The agencies acknowledged in the proposal that this treatment could have created disincentives for banking organizations to facilitate client clearing. Commenters’ feedback and the BCBS CCP interim framework’s treatment on this subject E:\FR\FM\10SER2.SGM 10SER2 55418 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations provided alternatives to address the incentive concern. Consistent with comments and the BCBS CCP interim framework, under the interim final rule, a clearing member FDIC-supervised institution must treat its counterparty credit risk exposure to clients as an OTC derivative contract, irrespective of whether the clearing member FDIC-supervised institution guarantees the transaction or acts as an intermediary between the client and the QCCP. Consistent with the BCBS CCP interim framework, to recognize the shorter close-out period for cleared transactions, under the standardized approach a clearing member FDICsupervised institution may calculate its exposure amount to a client by multiplying the exposure amount, calculated using the CEM, by a scaling factor of no less than 0.71, which represents a five-day holding period. A clearing member FDIC-supervised institution must use a longer holding period and apply a larger scaling factor to its exposure amount in accordance with Table 20 if it determines that a holding period longer than five days is appropriate. The FDIC may require a clearing member FDIC-supervised institution to set a longer holding period if it determines that a longer period is commensurate with the risks associated with the transaction. The FDIC believes that the recognition of a shorter closeout period appropriately captures the risk associated with such transactions while furthering the policy goal of promoting central clearing. TABLE 20—HOLDING PERIODS AND SCALING FACTORS Holding period (days) Scaling factor emcdonald on DSK67QTVN1PROD with RULES2 5 ...................................... 6 ...................................... 7 ...................................... 8 ...................................... 9 ...................................... 10 .................................... 0.71 0.77 0.84 0.89 0.95 1.00 3. Risk Weighting for Cleared Transactions Under the interim final rule, to determine the risk-weighted asset amount for a cleared transaction, a clearing member client FDIC-supervised institution or a clearing member FDICsupervised institution must multiply the trade exposure amount for the cleared transaction by the appropriate risk weight, determined as described below. The trade exposure amount is calculated as follows: (1) For a cleared transaction that is a derivative contract or a netting set of derivatives contracts, the trade exposure VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 amount is equal to the exposure amount for the derivative contract or netting set of derivative contracts, calculated using the CEM for OTC derivative contracts (described in sections 324.34 or 324.132(c) of the interim final rule) or for advanced approaches FDICsupervised institutions that use the IMM, under section 324.132(d) of the interim final rule), plus the fair value of the collateral posted by the clearing member client FDIC-supervised institution and held by the CCP or clearing member in a manner that is not bankruptcy remote; and (2) For a cleared transaction that is a repo-style transaction or a netting set of repo-style transactions, the trade exposure amount is equal to the exposure amount calculated under the collateral haircut approach used for financial collateral (described in sections 324.37(c) and 324.132(b) of the interim final rule) (or for advanced approaches FDIC-supervised institutions the IMM under section 324.132(d) of the interim final rule) plus the fair value of the collateral posted by the clearing member client FDICsupervised institution that is held by the CCP or clearing member in a manner that is not bankruptcy remote. The trade exposure amount does not include any collateral posted by a clearing member client FDIC-supervised institution or clearing member FDICsupervised institution that is held by a custodian in a manner that is bankruptcy remote 144 from the CCP, clearing member, other counterparties of the clearing member, and the custodian itself. In addition to the capital requirement for the cleared transaction, the FDIC-supervised institution remains subject to a capital requirement for any collateral provided to a CCP, a clearing member, or a custodian in connection with a cleared transaction in accordance with section 324.32 or 324.131 of the interim final rule. Consistent with the BCBS CCP interim framework, the risk weight for a cleared transaction depends on whether the CCP is a QCCP. Central counterparties that are designated FMUs and foreign entities regulated and supervised in a manner equivalent to designated FMUs are QCCPs. In addition, a CCP could be a QCCP under the interim final rule if it is in sound financial condition and meets certain standards that are consistent with BCBS expectations for QCCPs, as set forth in the QCCP definition. 144 Under the interim final rule, bankruptcy remote, with respect to an entity or asset, means that the entity or asset would be excluded from an insolvent entity’s estate in a receivership, insolvency or similar proceeding. PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 A clearing member FDIC-supervised institution must apply a 2 percent risk weight to its trade exposure amount to a QCCP. An FDIC-supervised institution that is a clearing member client may apply a 2 percent risk weight to the trade exposure amount only if: (1) The collateral posted by the clearing member client FDIC-supervised institution to the QCCP or clearing member is subject to an arrangement that prevents any losses to the clearing member client due to the joint default or a concurrent insolvency, liquidation, or receivership proceeding of the clearing member and any other clearing member clients of the clearing member, and (2) The clearing member client FDICsupervised institution has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that in the event of a legal challenge (including one resulting from default or a liquidation, insolvency, or receivership proceeding) the relevant court and administrative authorities would find the arrangements to be legal, valid, binding, and enforceable under the law of the relevant jurisdiction. If the criteria above are not met, a clearing member client FDIC-supervised institution must apply a risk weight of 4 percent to the trade exposure amount. Under the interim final rule, as under the proposal, for a cleared transaction with a CCP that is not a QCCP, a clearing member FDIC-supervised institution and a clearing member client FDIC-supervised institution must risk weight the trade exposure amount to the CCP according to the risk weight applicable to the CCP under section 324.32 of the interim final rule (generally, 100 percent). Collateral posted by a clearing member FDICsupervised institution that is held by a custodian in a manner that is bankruptcy remote from the CCP is not subject to a capital requirement for counterparty credit risk. Similarly, collateral posted by a clearing member client that is held by a custodian in a manner that is bankruptcy remote from the CCP, clearing member, and other clearing member clients of the clearing member is not be subject to a capital requirement for counterparty credit risk. The proposed rule was silent on the risk weight that would apply where a clearing member banking organization acts for its own account or guarantees a QCCP’s performance to a client. Consistent with the BCBS CCP interim framework, the interim final rule provides additional specificity regarding the risk-weighting methodologies for certain exposures of clearing member E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 banking organizations. The interim final rule provides that a clearing member FDIC-supervised institution that (i) acts for its own account, (ii) is acting as a financial intermediary (with an offsetting transaction or a guarantee of the client’s performance to a QCCP), or (iii) guarantees a QCCP’s performance to a client would apply a two percent risk weight to the FDIC-supervised institution’s exposure to the QCCP. The diagrams below demonstrate the various potential transactions and exposure VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 treatment in the interim final rule. Table 21 sets out how the transactions illustrated in the diagrams below are risk-weighted under the interim final rule. In the diagram, ‘‘T’’ refers to a transaction, and the arrow indicates the direction of the exposure. The diagram describes the appropriate risk weight treatment for exposures from the perspective of a clearing member FDICsupervised institution entering into cleared transactions for its own account PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 55419 (T1), a clearing member FDIC-supervised institution entering into cleared transactions on behalf of a client (T2 through T7), and an FDIC-supervised institution entering into cleared transactions as a client of a clearing member (T8 and T9). Table 21 shows for each trade whom the exposure is to, a description of the type of trade, and the risk weight that would apply based on the risk of the counterparty. BILLING CODE 6714–01–P E:\FR\FM\10SER2.SGM 10SER2 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4725 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.001</GPH> emcdonald on DSK67QTVN1PROD with RULES2 55420 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55421 BILLING CODE 6714–01–C TABLE 21—RISK WEIGHTS FOR VARIOUS CLEARED TRANSACTIONS Description ...................... ...................... ...................... ...................... ...................... ...................... ...................... ...................... QCCP ............... Client ................ QCCP ............... Client ................ QCCP ............... Client ................ QCCP ............... CM .................... T9 ...................... QCCP ............... Own account ............................................................. Financial intermediary with offsetting trade to QCCP Financial intermediary with offsetting trade to QCCP Agent with guarantee of client performance ............. Agent with guarantee of client performance ............. Guarantee of QCCP performance ............................ Guarantee of QCCP performance ............................ CM financial intermediary with offsetting trade to QCCP. CM agent with guarantee of client performance ....... T1 T2 T3 T4 T5 T6 T7 T8 emcdonald on DSK67QTVN1PROD with RULES2 4. Default Fund Contribution Exposures There are several risk mitigants available when a party clears a transaction through a CCP rather than on a bilateral basis: The protection provided to the CCP clearing members by the margin requirements imposed by the CCP; the CCP members’ default fund contributions; and the CCP’s own capital and contribution to the default fund, which are an important source of collateral in case of counterparty default.145 CCPs independently determine default fund contributions that are required from members. The BCBS therefore established, and the interim final rule adopts, a risk-sensitive approach for risk weighting an FDICsupervised institution’s exposure to a default fund. Under the proposed rule, there was only one method that a clearing member banking organization could use to calculate its risk-weighted asset amount for default fund contributions. The BCBS CCP interim framework added a second method to better reflect the lower risks associated with exposures to those clearinghouses that have relatively large default funds with a significant amount unfunded. Commenters requested that the interim final rule adopt both methods contained in the BCBS CCP interim framework. 145 Default funds are also known as clearing deposits or guaranty funds. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Risk-weighting treatment under the interim final rule 2% risk weight on trade exposure amount. OTC derivative with CEM scalar.** 2% risk weight on trade exposure amount. OTC derivative with CEM scalar.** No exposure. OTC derivative with CEM scalar.** 2% risk weight on trade exposure amount. 2% or 4%* risk weight on trade exposure amount. 2% or 4%* risk weight on trade exposure amount. Accordingly, under the interim final rule, an FDIC-supervised institution that is a clearing member of a CCP must calculate the risk-weighted asset amount for its default fund contributions at least quarterly or more frequently if there is a material change, in the opinion of the FDIC-supervised institution or FDIC, in the financial condition of the CCP. A default fund contribution means the funds contributed or commitments made by a clearing member to a CCP’s mutualized loss-sharing arrangement. If the CCP is not a QCCP, the FDICsupervised institution’s risk-weighted asset amount for its default fund contribution is either the sum of the default fund contributions multiplied by 1,250 percent, or in cases where the default fund contributions may be unlimited, an amount as determined by the FDIC based on factors described above. Consistent with the BCBS CCP interim framework, the interim final rule requires an FDIC-supervised institution to calculate a risk-weighted asset amount for its default fund contribution using one of two methods. Method one requires a clearing member FDIC-supervised institution to use a three-step process. The first step is for the clearing member FDIC-supervised institution to calculate the QCCP’s hypothetical capital requirement (KCCP), unless the QCCP has already disclosed it, in which case the FDIC-supervised institution must rely on that disclosed PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 figure, unless the FDIC-supervised institution determines that a higher figure is appropriate based on the nature, structure, or characteristics of the QCCP. KCCP is defined as the capital that a QCCP is required to hold if it were an FDIC-supervised institution, and is calculated using the CEM for OTC derivatives or the collateral haircut approach for repo-style transactions, recognizing the risk-mitigating effects of collateral posted by and default fund contributions received from the QCCP clearing members. The interim final rule provides several modifications to the calculation of KCCP to adjust for certain features that are unique to QCCPs. Namely, the modifications permit: (1) A clearing member to offset its exposure to a QCCP with actual default fund contributions, and (2) greater recognition of netting when using the CEM to calculate KCCP described below. Additionally, the risk weight of all clearing members is set at 20 percent, except when the FDIC has determined that a higher risk weight is appropriate based on the specific characteristics of the QCCP and its clearing members. Finally, for derivative contracts that are options, the PFE amount calculation is adjusted by multiplying the notional principal amount of the derivative contract by the appropriate conversion factor and the absolute value of the option’s delta (that is, the ratio of the change in the value of the derivative contract to the E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.002</GPH> Exposure to emcdonald on DSK67QTVN1PROD with RULES2 55422 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations corresponding change in the price of the underlying asset). In the second step of method one, the interim final rule requires an FDICsupervised institution to compare KCCP to the funded portion of the default fund of a QCCP, and to calculate the total of all the clearing members’ capital requirements (K*cm). If the total funded default fund of a QCCP is less than KCCP, the interim final rule requires additional capital to be assessed against the shortfall because of the small size of the funded portion of the default fund relative to KCCP. If the total funded default fund of a QCCP is greater than KCCP, but the QCCP’s own funded contributions to the default fund are less than KCCP (so that the clearing members’ default fund contributions are required to achieve KCCP), the clearing members’ default fund contributions up to KCCP are risk-weighted at 100 percent and a decreasing capital factor, between 1.6 percent and 0.16 percent, is applied to the clearing members’ funded default fund contributions above KCCP. If the QCCP’s own contribution to the default fund is greater than KCCP, then only the decreasing capital factor is applied to the clearing members’ default fund contributions. In the third step of method one, the interim final rule requires (K*cm) to be allocated back to each individual clearing member. This allocation is proportional to each clearing member’s contribution to the default fund but adjusted to reflect the impact of two average-size clearing members defaulting as well as to account for the concentration of exposures among clearing members. A clearing member FDIC-supervised institution multiplies its allocated capital requirement by 12.5 to determine its risk-weighted asset amount for its default fund contribution to the QCCP. As the alternative, an FDICsupervised institution is permitted to use method two, which is a simplified method under which the risk-weighted asset amount for its default fund contribution to a QCCP equals 1,250 percent multiplied by the default fund contribution, subject to an overall cap. The cap is based on an FDIC-supervised institution’s trade exposure amount for all of its transactions with a QCCP. An FDIC-supervised institution’s riskweighted asset amount for its default fund contribution to a QCCP is either a 1,250 percent risk weight applied to its default fund contribution to that QCCP or 18 percent of its trade exposure amount to that QCCP. Method two subjects an FDIC-supervised institution to an overall cap on the risk-weighted assets from all its exposures to the CCP VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 equal to 20 percent times the trade exposures to the CCP. This 20 percent cap is arrived at as the sum of the 2 percent capital requirement for trade exposure plus 18 percent for the default fund portion of an FDIC-supervised institution’s exposure to a QCCP. To address commenter concerns that the CEM underestimates the multilateral netting benefits arising from a QCCP, the interim final rule recognizes the larger diversification benefits inherent in a multilateral netting arrangement for purposes of measuring the QCCP’s potential future exposure associated with derivative contracts. Consistent with the BCBS CCP interim framework, and as mentioned above, the interim final rule replaces the proposed factors (0.3 and 0.7) in the formula to calculate Anet with 0.15 and 0.85, in sections 324.35(d)(3)(i)(A)(1) and 324.133(d)(3)(i)(A)(1) of the interim final rule, respectively. F. Credit Risk Mitigation Banking organizations use a number of techniques to mitigate credit risks. For example, a banking organization may collateralize exposures with cash or securities; a third party may guarantee an exposure; a banking organization may buy a credit derivative to offset an exposure’s credit risk; or a banking organization may net exposures with a counterparty under a netting agreement. The general risk-based capital rules recognize these techniques to some extent. This section of the preamble describes how the interim final rule allows FDIC-supervised institutions to recognize the risk-mitigation effects of guarantees, credit derivatives, and collateral for risk-based capital purposes. In general, the interim final rule provides for a greater variety of credit risk mitigation techniques than the general risk-based capital rules. Similar to the general risk-based capital rules, under the interim final rule an FDIC-supervised institution generally may use a substitution approach to recognize the credit risk mitigation effect of an eligible guarantee from an eligible guarantor and the simple approach to recognize the effect of collateral. To recognize credit risk mitigants, all FDIC-supervised institutions must have operational procedures and risk-management processes that ensure that all documentation used in collateralizing or guaranteeing a transaction is legal, valid, binding, and enforceable under applicable law in the relevant jurisdictions. An FDIC-supervised institution should conduct sufficient legal review to reach a well-founded conclusion that the documentation PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 meets this standard as well as conduct additional reviews as necessary to ensure continuing enforceability. Although the use of credit risk mitigants may reduce or transfer credit risk, it simultaneously may increase other risks, including operational, liquidity, or market risk. Accordingly, an FDIC-supervised institution should employ robust procedures and processes to control risks, including roll-off and concentration risks, and monitor and manage the implications of using credit risk mitigants for the FDIC-supervised institution’s overall credit risk profile. 1. Guarantees and Credit Derivatives a. Eligibility Requirements Consistent with the Basel capital framework, the agencies proposed to recognize a wider range of eligible guarantors than permitted under the general risk-based capital rules, including sovereigns, the Bank for International Settlements, the International Monetary Fund, the European Central Bank, the European Commission, Federal Home Loan Banks (FHLB), Federal Agricultural Mortgage Corporation (Farmer Mac), MDBs, depository institutions, BHCs, SLHCs, credit unions, and foreign banks. Eligible guarantors would also include entities that are not special purpose entities that have issued and outstanding unsecured debt securities without credit enhancement that are investment grade and that meet certain other requirements.146 Some commenters suggested modifying the proposed definition of eligible guarantor to remove the investment-grade requirement. Commenters also suggested that the agencies potentially include as eligible guarantors other entities, such as financial guaranty and private mortgage insurers. The FDIC believes that guarantees issued by these types of entities can exhibit significant wrongway risk and modifying the definition of eligible guarantor to accommodate these entities or entities that are not investment grade would be contrary to one of the key objectives of the capital framework, which is to mitigate interconnectedness and systemic vulnerabilities within the financial 146 Under the proposed and interim final rule, an exposure is ‘‘investment grade’’ if the entity to which the FDIC-supervised institution is exposed through a loan or security, or the reference entity with respect to a credit derivative, has adequate capacity to meet financial commitments for the projected life of the asset or exposure. Such an entity or reference entity has adequate capacity to meet financial commitments if the risk of its default is low and the full and timely repayment of principal and interest is expected. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations system. Therefore, the FDIC has not included the recommended entities in the interim final rule’s definition of ‘‘eligible guarantor.’’ The FDIC has, however, amended the definition of eligible guarantor in the interim final rule to include QCCPs to accommodate use of the substitution approach for credit derivatives that are cleared transactions. The FDIC believes that QCCPs, as supervised entities subject to specific risk-management standards, are appropriately included as eligible guarantors under the interim final rule.147 In addition, the FDIC clarifies one commenter’s concern and confirms that re-insurers that are engaged predominantly in the business of providing credit protection do not qualify as an eligible guarantor under the interim final rule. Under the interim final rule, guarantees and credit derivatives are required to meet specific eligibility requirements to be recognized for credit risk mitigation purposes. Consistent with the proposal, under the interim final rule, an eligible guarantee is defined as a guarantee from an eligible guarantor that is written and meets certain standards and conditions, including with respect to its enforceability. An eligible credit derivative is defined as a credit derivative in the form of a CDS, nth-todefault swap, total return swap, or any other form of credit derivative approved by the FDIC, provided that the instrument meets the standards and conditions set forth in the definition. See the definitions of ‘‘eligible guarantee’’ and ‘‘eligible credit derivative’’ in section 324.2 of the interim final rule. Under the proposal, a banking organization would have been permitted to recognize the credit risk mitigation benefits of an eligible credit derivative that hedges an exposure that is different from the credit derivative’s reference exposure used for determining the derivative’s cash settlement value, deliverable obligation, or occurrence of a credit event if (1) the reference exposure ranks pari passu with or is subordinated to the hedged exposure; (2) the reference exposure and the hedged exposure are to the same legal entity; and (3) legally-enforceable crossdefault or cross-acceleration clauses are in place to assure payments under the credit derivative are triggered when the issuer fails to pay under the terms of the hedged exposure. In addition to these two exceptions, one commenter encouraged the agencies 147 See the definition of ‘‘eligible guarantor’’ in section 2 of the interim final rule. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 to revise the interim final rule to recognize a proxy hedge as an eligible credit derivative even though such a transaction hedges an exposure that differs from the credit derivative’s reference exposure. A proxy hedge was characterized by the commenter as a hedge of an exposure supported by a sovereign using a credit derivative on that sovereign. The FDIC does not believe there is sufficient justification to include proxy hedges in the definition of eligible credit derivative because it has concerns regarding the ability of the hedge to sufficiently mitigate the risk of the underlying exposure. The FDIC has, therefore, adopted the definition of eligible credit derivative as proposed. In addition, under the interim final rule, consistent with the proposal, when an FDIC-supervised institution has a group of hedged exposures with different residual maturities that are covered by a single eligible guarantee or eligible credit derivative, it must treat each hedged exposure as if it were fully covered by a separate eligible guarantee or eligible credit derivative. b. Substitution Approach The FDIC is adopting the substitution approach for eligible guarantees and eligible credit derivatives in the interim final rule without change. Under the substitution approach, if the protection amount (as defined below) of an eligible guarantee or eligible credit derivative is greater than or equal to the exposure amount of the hedged exposure, an FDIC-supervised institution substitutes the risk weight applicable to the guarantor or credit derivative protection provider for the risk weight applicable to the hedged exposure. If the protection amount of the eligible guarantee or eligible credit derivative is less than the exposure amount of the hedged exposure, an FDIC-supervised institution must treat the hedged exposure as two separate exposures (protected and unprotected) to recognize the credit risk mitigation benefit of the guarantee or credit derivative. In such cases, an FDICsupervised institution calculates the risk-weighted asset amount for the protected exposure under section 36 of the interim final rule (using a risk weight applicable to the guarantor or credit derivative protection provider and an exposure amount equal to the protection amount of the guarantee or credit derivative). The FDIC-supervised institution calculates its risk-weighted asset amount for the unprotected exposure under section 32 of the interim final rule (using the risk weight assigned to the exposure and an exposure amount equal to the exposure amount of the PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 55423 original hedged exposure minus the protection amount of the guarantee or credit derivative). Under the interim final rule, the protection amount of an eligible guarantee or eligible credit derivative means the effective notional amount of the guarantee or credit derivative reduced to reflect any, maturity mismatch, lack of restructuring coverage, or currency mismatch as described below. The effective notional amount for an eligible guarantee or eligible credit derivative is the lesser of the contractual notional amount of the credit risk mitigant and the exposure amount of the hedged exposure, multiplied by the percentage coverage of the credit risk mitigant. For example, the effective notional amount of a guarantee that covers, on a pro rata basis, 40 percent of any losses on a $100 bond is $40. c. Maturity Mismatch Haircut The FDIC is adopting the proposed haircut for maturity mismatch in the interim final rule without change. Under the interim final rule, the FDIC has adopted the requirement that an FDIC-supervised institution that recognizes an eligible guarantee or eligible credit derivative must adjust the effective notional amount of the credit risk mitigant to reflect any maturity mismatch between the hedged exposure and the credit risk mitigant. A maturity mismatch occurs when the residual maturity of a credit risk mitigant is less than that of the hedged exposure(s).148 The residual maturity of a hedged exposure is the longest possible remaining time before the obligated party of the hedged exposure is scheduled to fulfil its obligation on the hedged exposure. An FDIC-supervised institution is required to take into account any embedded options that may reduce the term of the credit risk mitigant so that the shortest possible residual maturity for the credit risk mitigant is used to determine the potential maturity mismatch. If a call is at the discretion of the protection provider, the residual maturity of the credit risk mitigant is at the first call date. If the call is at the discretion of the 148 As noted above, when an FDIC-supervised institution has a group of hedged exposures with different residual maturities that are covered by a single eligible guarantee or eligible credit derivative, an FDIC-supervised institution treats each hedged exposure as if it were fully covered by a separate eligible guarantee or eligible credit derivative. To determine whether any of the hedged exposures has a maturity mismatch with the eligible guarantee or credit derivative, the FDIC-supervised institution assesses whether the residual maturity of the eligible guarantee or eligible credit derivative is less than that of the hedged exposure. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 FDIC-supervised institution purchasing the protection, but the terms of the arrangement at origination of the credit risk mitigant contain a positive incentive for the FDIC-supervised institution to call the transaction before contractual maturity, the remaining time to the first call date is the residual maturity of the credit risk mitigant. An FDIC-supervised institution is permitted, under the interim final rule, to recognize a credit risk mitigant with a maturity mismatch only if its original maturity is greater than or equal to one year and the residual maturity is greater than three months. Assuming that the credit risk mitigant may be recognized, an FDIC-supervised institution is required to apply the following adjustment to reduce the effective notional amount of the credit risk mitigant to recognize the maturity mismatch: Pm = E × [(t¥0.25)/ (T¥0.25)], where: (1) Pm equals effective notional amount of the credit risk mitigant, adjusted for maturity mismatch; (2) E equals effective notional amount of the credit risk mitigant; (3) t equals the lesser of T or residual maturity of the credit risk mitigant, expressed in years; and (4) T equals the lesser of five or the residual maturity of the hedged exposure, expressed in years. d. Adjustment for Credit Derivatives Without Restructuring as a Credit Event The FDIC is adopting in the interim final rule the proposed adjustment for credit derivatives without restructuring as a credit event. Consistent with the proposal, under the interim final rule, an FDIC-supervised institution that seeks to recognize an eligible credit derivative that does not include a restructuring of the hedged exposure as a credit event under the derivative must reduce the effective notional amount of the credit derivative recognized for credit risk mitigation purposes by 40 percent. For purposes of the credit risk mitigation framework, a restructuring may involve forgiveness or postponement of principal, interest, or fees that result in a credit loss event (that is, a charge-off, specific provision, or other similar debit to the profit and loss account). In these instances, the FDIC-supervised institution is required to apply the following adjustment to reduce the effective notional amount of the credit derivative: Pr equals Pm x 0.60, where: (1) Pr equals effective notional amount of the credit risk mitigant, adjusted for lack of a restructuring event (and maturity mismatch, if applicable); and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) Pm equals effective notional amount of the credit risk mitigant (adjusted for maturity mismatch, if applicable). e. Currency Mismatch Adjustment Consistent with the proposal, under the interim final rule, if an FDICsupervised institution recognizes an eligible guarantee or eligible credit derivative that is denominated in a currency different from that in which the hedged exposure is denominated, the FDIC-supervised institution must apply the following formula to the effective notional amount of the guarantee or credit derivative: PC equals Pr × (1–HFX), where: (1) PC equals effective notional amount of the credit risk mitigant, adjusted for currency mismatch (and maturity mismatch and lack of restructuring event, if applicable); (2) Pr equals effective notional amount of the credit risk mitigant (adjusted for maturity mismatch and lack of restructuring event, if applicable); and (3) HFX equals haircut appropriate for the currency mismatch between the credit risk mitigant and the hedged exposure. An FDIC-supervised institution is required to use a standard supervisory haircut of 8 percent for HFX (based on a ten-business-day holding period and daily marking-to-market and remargining). Alternatively, an FDICsupervised institution has the option to use internally estimated haircuts of HFX based on a ten-business-day holding period and daily marking-to-market if the FDIC-supervised institution qualifies to use the own-estimates of haircuts in section 324.37(c)(4) of the interim final rule. In either case, the FDIC-supervised institution is required to scale the haircuts up using the square root of time formula if the FDICsupervised institution revalues the guarantee or credit derivative less frequently than once every 10 business days. The applicable haircut (HM) is calculated using the following square root of time formula: where TM equals the greater of 10 or the number of days between revaluation. f. Multiple Credit Risk Mitigants Consistent with the proposal, under the interim final rule, if multiple credit risk mitigants cover a single exposure, an FDIC-supervised institution may disaggregate the exposure into portions PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 covered by each credit risk mitigant (for example, the portion covered by each guarantee) and calculate separately a risk-based capital requirement for each portion, consistent with the Basel capital framework. In addition, when a single credit risk mitigant covers multiple exposures, an FDIC-supervised institution must treat each hedged exposure as covered by a single credit risk mitigant and must calculate separate risk-weighted asset amounts for each exposure using the substitution approach described in section 324.36(c) of the interim final rule. 2. Collateralized Transactions a. Eligible Collateral Under the proposal, the agencies would recognize an expanded range of financial collateral as credit risk mitigants that may reduce the risk-based capital requirements associated with a collateralized transaction, consistent with the Basel capital framework. The agencies proposed that a banking organization could recognize the riskmitigating effects of financial collateral using the ‘‘simple approach’’ for any exposure provided that the collateral meets certain requirements. For repostyle transactions, eligible margin loans, collateralized derivative contracts, and single-product netting sets of such transactions, a banking organization could alternatively use the collateral haircut approach. The proposal required a banking organization to use the same approach for similar exposures or transactions. The commenters generally agreed with this aspect of the proposal; however, a few commenters encouraged the agencies to expand the definition of financial collateral to include precious metals and certain residential mortgages that collateralize warehouse lines of credit. Several commenters asserted that the interim final rule should recognize as financial collateral conforming residential mortgages (or at least those collateralizing warehouse lines of credit) and/or those insured by the FHA or VA. They noted that by not including conforming residential mortgages in the definition of financial collateral, the proposed rule would require banking organizations providing warehouse lines to treat warehouse facilities as commercial loan exposures, thus preventing such entities from looking through to the underlying collateral in calculating the appropriate risk weighting. Others argued that a ‘‘look through’’ approach for a repo-style structure to the financial collateral held therein should be allowed. Another commenter argued that the interim final E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.003</GPH> 55424 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations rule should allow recognition of intangible assets as financial collateral because they have real value. The FDIC believes that the collateral types suggested by the commenters are not appropriate forms of financial collateral because they exhibit increased variation and credit risk, and are relatively more speculative than the recognized forms of financial collateral under the proposal. For example, residential mortgages can be highly idiosyncratic in regards to payment features, interest rate provisions, lien seniority, and maturities. The FDIC believes that the proposed definition of financial collateral, which is broader than the collateral recognized under the general risk-based capital rules, included those collateral types of sufficient liquidity and asset quality to recognize as credit risk mitigants for risk-based capital purposes. As a result, the FDIC has retained the definition of financial collateral as proposed. Therefore, consistent with the proposal, the interim final rule defines financial collateral as collateral in the form of: (1) Cash on deposit with the FDICsupervised institution (including cash held for the FDIC-supervised institution by a third-party custodian or trustee); (2) gold bullion; (3) short- and long-term debt securities that are not resecuritization exposures and that are investment grade; (4) equity securities that are publicly-traded; (5) convertible bonds that are publicly-traded; or (6) money market fund shares and other mutual fund shares if a price for the shares is publicly quoted daily. With the exception of cash on deposit, the FDICsupervised institution is also required to have a perfected, first-priority security interest or, outside of the United States, the legal equivalent thereof, notwithstanding the prior security interest of any custodial agent. Even if an FDIC-supervised institution has the legal right, it still must ensure it monitors or has a freeze on the account to prevent a customer from withdrawing cash on deposit prior to defaulting. An FDIC-supervised institution is permitted to recognize partial collateralization of an exposure. Under the interim final rule, the FDIC requires that an FDIC-supervised institution to recognize the riskmitigating effects of financial collateral using the simple approach described below, where: the collateral is subject to a collateral agreement for at least the life of the exposure; the collateral is revalued at least every six months; and the collateral (other than gold) and the exposure is denominated in the same currency. For repo-style transactions, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 eligible margin loans, collateralized derivative contracts, and single-product netting sets of such transactions, an FDIC-supervised institution could alternatively use the collateral haircut approach described below. The interim final rule, like the proposal, requires an FDIC-supervised institution to use the same approach for similar exposures or transactions. b. Risk-Management Guidance for Recognizing Collateral Before an FDIC-supervised institution recognizes collateral for credit risk mitigation purposes, it should: (1) Conduct sufficient legal review to ensure, at the inception of the collateralized transaction and on an ongoing basis, that all documentation used in the transaction is binding on all parties and legally enforceable in all relevant jurisdictions; (2) consider the correlation between risk of the underlying direct exposure and collateral in the transaction; and (3) fully take into account the time and cost needed to realize the liquidation proceeds and the potential for a decline in collateral value over this time period. An FDIC-supervised institution also should ensure that the legal mechanism under which the collateral is pledged or transferred ensures that the FDICsupervised institution has the right to liquidate or take legal possession of the collateral in a timely manner in the event of the default, insolvency, or bankruptcy (or other defined credit event) of the counterparty and, where applicable, the custodian holding the collateral. In addition, an FDIC-supervised institution should ensure that it (1) has taken all steps necessary to fulfill any legal requirements to secure its interest in the collateral so that it has and maintains an enforceable security interest; (2) has set up clear and robust procedures to ensure satisfaction of any legal conditions required for declaring the default of the borrower and prompt liquidation of the collateral in the event of default; (3) has established procedures and practices for conservatively estimating, on a regular ongoing basis, the fair value of the collateral, taking into account factors that could affect that value (for example, the liquidity of the market for the collateral and obsolescence or deterioration of the collateral); and (4) has in place systems for promptly requesting and receiving additional collateral for transactions whose terms require maintenance of collateral values at specified thresholds. PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 55425 c. Simple Approach The FDIC is adopting the simple approach without change for purposes of the interim final rule. Under the interim final rule, the collateralized portion of the exposure receives the risk weight applicable to the collateral. The collateral is required to meet the definition of financial collateral. For repurchase agreements, reverse repurchase agreements, and securities lending and borrowing transactions, the collateral would be the instruments, gold, and cash that an FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the transaction. As noted above, in all cases, (1) the collateral must be subject to a collateral agreement for at least the life of the exposure; (2) the FDIC-supervised institution must revalue the collateral at least every six months; and (3) the collateral (other than gold) and the exposure must be denominated in the same currency. Generally, the risk weight assigned to the collateralized portion of the exposure must be no less than 20 percent. However, the collateralized portion of an exposure may be assigned a risk weight of less than 20 percent for the following exposures. OTC derivative contracts that are marked to fair value on a daily basis and subject to a daily margin maintenance agreement, may receive (1) a zero percent risk weight to the extent that contracts are collateralized by cash on deposit, or (2) a 10 percent risk weight to the extent that the contracts are collateralized by an exposure to a sovereign that qualifies for a zero percent risk weight under section 32 of the interim final rule. In addition, an FDIC-supervised institution may assign a zero percent risk weight to the collateralized portion of an exposure where the financial collateral is cash on deposit; or the financial collateral is an exposure to a sovereign that qualifies for a zero percent risk weight under section 32 of the interim final rule, and the FDIC-supervised institution has discounted the fair value of the collateral by 20 percent. d. Collateral Haircut Approach Consistent with the proposal, in the interim final rule, an FDIC-supervised institution may use the collateral haircut approach to recognize the credit risk mitigation benefits of financial collateral that secures an eligible margin loan, repo-style transaction, collateralized derivative contract, or single-product netting set of such transactions. In addition, the FDICsupervised institution may use the E:\FR\FM\10SER2.SGM 10SER2 55426 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 collateral haircut approach with respect to any collateral that secures a repostyle transaction that is included in the FDIC-supervised institution’s VaR-based measure under subpart F of the interim final rule, even if the collateral does not meet the definition of financial collateral. To apply the collateral haircut approach, an FDIC-supervised institution must determine the exposure amount and the relevant risk weight for the counterparty or guarantor. The exposure amount for an eligible margin loan, repo-style transaction, collateralized derivative contract, or a netting set of such transactions is equal to the greater of zero and the sum of the following three quantities: (1) The value of the exposure less the value of the collateral. For eligible margin loans, repo-style transactions and netting sets thereof, the value of the exposure is the sum of the current market values of all instruments, gold, and cash the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty under the transaction or netting set. For collateralized OTC derivative contracts and netting sets thereof, the value of the exposure is the exposure amount that is calculated under section 34 of the interim final rule. The value of the collateral equals the sum of the current market values of all instruments, gold and cash the FDICsupervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the transaction or netting set; (2) The absolute value of the net position in a given instrument or in gold (where the net position in a given instrument or in gold equals the sum of the current market values of the instrument or gold the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current market values of that same instrument or gold that the FDICsupervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty) multiplied by the market price volatility haircut appropriate to the instrument or gold; and (3) The absolute value of the net position of instruments and cash in a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 currency that is different from the settlement currency (where the net position in a given currency equals the sum of the current market values of any instruments or cash in the currency the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current market values of any instruments or cash in the currency the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty) multiplied by the haircut appropriate to the currency mismatch. For purposes of the collateral haircut approach, a given instrument includes, for example, all securities with a single Committee on Uniform Securities Identification Procedures (CUSIP) number and would not include securities with different CUSIP numbers, even if issued by the same issuer with the same maturity date. e. Standard Supervisory Haircuts When determining the exposure amount, the FDIC-supervised institution must apply a haircut for price market volatility and foreign exchange rates, determined either using standard supervisory market price volatility haircuts and a standard haircut for exchange rates or, with prior approval of the agency, an FDIC-supervised institution’s own estimates of volatilities of market prices and foreign exchange rates. The standard supervisory market price volatility haircuts set a specified market price volatility haircut for various categories of financial collateral. These standard haircuts are based on the ten-business-day holding period for eligible margin loans and derivative contracts. For repo-style transactions, an FDIC-supervised institution may multiply the standard supervisory haircuts by the square root of 1⁄2 to scale them for a holding period of five business days. Several commenters argued that the proposed haircuts were too conservative and insufficiently risksensitive, and that FDIC-supervised institutions should be allowed to compute their own haircuts. Some commenters proposed limiting the maximum haircut for non-sovereign issuers that receive a 100 percent risk PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 weight to 12 percent and, more specifically, assigning a lower haircut than 25 percent for financial collateral in the form of an investment-grade corporate debt security that has a shorter residual maturity. The commenters asserted that these haircuts conservatively correspond to the existing rating categories and result in greater alignment with the Basel framework. In the interim final rule, the FDIC has revised from 25.0 percent the standard supervisory market price volatility haircuts for financial collateral issued by non-sovereign issuers with a risk weight of 100 percent to 4.0 percent for maturities of less than one year, 8.0 percent for maturities greater than one year but less than or equal to five years, and 16.0 percent for maturities greater than five years, consistent with Table 22 below. The FDIC believes that the revised haircuts better reflect the collateral’s credit quality and an appropriate differentiation based on the collateral’s residual maturity. An FDIC-supervised institution using the standard currency mismatch haircut is required to use an 8 percent haircut for each currency mismatch for transactions subject to a 10 day holding period, as adjusted for different required holding periods. One commenter asserted that the proposed adjustment for currency mismatch was unwarranted because in securities lending transactions, the parties typically require a higher collateral margin than in transactions where there is no mismatch. In the alternative, the commenter argued that the agencies should align the currency mismatch haircut more closely with a given currency combination and suggested those currencies of countries with a more favorable CRC from the OECD should receive a smaller haircut. The FDIC has decided to adopt this aspect of the proposal without change in the interim final rule. The FDIC believes that the own internal estimates for haircuts methodology described below allows FDIC-supervised institutions appropriate flexibility to more granularly reflect individual currency combinations, provided they meet certain criteria. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55427 TABLE 22—STANDARD SUPERVISORY MARKET PRICE VOLATILITY HAIRCUTS 1 Haircut (in percent) assigned based on: Sovereign issuers risk weight under § 324.32 2 Residual maturity Zero Less than or equal to 1 year ..................... Greater than 1 year and less than or equal to 5 years ..................................... Greater than 5 years .................................. 20 or 50 100 20 50 Investment-grade securitization exposures (in percent) 100 0.5 1.0 15.0 1.0 2.0 4.0 4.0 2.0 4.0 3.0 6.0 15.0 15.0 4.0 8.0 6.0 12.0 8.0 16.0 12.0 24.0 Main index equities (including convertible bonds) and gold ....................................... Other publicly-traded equities (including convertible bonds) ....................................... Mutual funds ................................................................................................................ Cash collateral held ..................................................................................................... Other exposure types .................................................................................................. 1 The Non-sovereign issuers risk weight under § 324.32 15.0 25.0 Highest haircut applicable to any security in which the fund can invest Zero 25.0 market price volatility haircuts in Table 22 are based on a 10 business-day holding period. a foreign PSE that receives a zero percent risk weight. emcdonald on DSK67QTVN1PROD with RULES2 2 Includes The interim final rule requires that an FDIC-supervised institution increase the standard supervisory haircut for transactions involving large netting sets. As noted in the proposed rule, during the recent financial crisis, many financial institutions experienced significant delays in settling or closingout collateralized transactions, such as repo-style transactions and collateralized OTC derivatives. The assumed holding period for collateral in the collateral haircut approach under Basel II proved to be inadequate for certain transactions and netting sets and did not reflect the difficulties and delays that institutions had when settling or liquidating collateral during a period of financial stress. Thus, consistent with the proposed rule, for netting sets where: (1) the number of trades exceeds 5,000 at any time during the quarter; (2) one or more trades involves illiquid collateral posted by the counterparty; or (3) the netting set includes any OTC derivatives that cannot be easily replaced, the interim final rule requires an FDIC-supervised institution to assume a holding period of 20 business days for the collateral under the collateral haircut approach. The formula and methodology for increasing the haircut to reflect the longer holding period is described in section 37(c) of the interim final rule. Consistent with the Basel capital framework, an FDIC-supervised institution is not required to adjust the holding period upward for cleared transactions. When determining whether collateral is illiquid or whether an OTC derivative cannot be easily replaced for these purposes, an FDICsupervised institution should assess whether, during a period of stressed market conditions, it could obtain multiple price quotes within two days VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 or less for the collateral or OTC derivative that would not move the market or represent a market discount (in the case of collateral) or a premium (in the case of an OTC derivative). One commenter requested the agencies clarify whether the 5,000-trade threshold applies on a counterparty-bycounterparty (rather than aggregate) basis, and only will be triggered in the event there are 5,000 open trades with a single counterparty within a single netting set in a given quarter. Commenters also asked whether the threshold would be calculated on an average basis or whether a de minimis number of breaches could be permitted without triggering the increased holding period or margin period of risk. One commenter suggested eliminating the threshold because it is ineffective as a measure of risk, and combined with other features of the proposals (for example, collateral haircuts, margin disputes), could create a disincentive for FDIC-supervised institutions to apply sound practices such as risk diversification. The FDIC notes that the 5,000-trade threshold applies to a netting set, which by definition means a group of transactions with a single counterparty that are subject to a qualifying master netting agreement. The 5,000 trade calculation threshold was proposed as an indicator that a set of transactions may be more complex, or require a lengthy period, to close out in the event of a default of a counterparty. The FDIC continues to believe that the threshold of 5,000 is a reasonable indicator of the complexity of a close-out. Therefore, the interim final rule retains the 5,000 trade threshold as proposed, without any de minimis exception. One commenter asked the agencies to clarify how trades would be counted in PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 the context of an indemnified agency securities lending relationship. In such transactions, an agent banking organization acts as an intermediary for, potentially, multiple borrowers and lenders. The banking organization is acting as an agent with no exposure to either the securities lenders or borrowers except for an indemnification to the securities lenders in the event of a borrower default. The indemnification creates an exposure to the securities borrower, as the agent banking organization could suffer a loss upon the default of a borrower. In these cases, each transaction between the agent and a borrower would count as a trade. The FDIC notes that a trade in this instance consists of an order by the borrower, and not the number of securities lenders providing shares to fulfil the order or the number of shares underlying such order.149 The commenters also addressed the longer holding period for trades involving illiquid collateral posted by the counterparty. Some commenters asserted that one illiquid exposure or one illiquid piece of collateral should not taint the entire netting set. Other commenters recommended applying a materiality threshold (for example, 1 percent) below which one or more illiquid exposures would not trigger the longer holding period, or allowing banking organizations to define ‘‘materiality’’ based on experience. Regarding the potential for an illiquid exposure to ‘‘taint’’ an entire netting set, the interim final rule does not require 149 In the event that the agent FDIC-supervised institution reinvests the cash collateral proceeds on behalf of the lender and provides an explicit or implicit guarantee of the value of the collateral in such pool, the FDIC-supervised institution should hold capital, as appropriate, against the risk of loss of value of the collateral pool. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55428 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations an FDIC-supervised institution to recognize any piece of collateral as a risk mitigant. Accordingly, if an FDICsupervised institution elects to exclude the illiquid collateral from the netting set for purposes of calculating riskweighted assets, then such illiquid collateral does not result in an increased holding period for the netting set. With respect to a derivative that may not be easily replaced, an FDIC-supervised institution could create a separate netting set that would preserve the holding period for the original netting set of easily replaced transactions. Accordingly, the interim final rule adopts this aspect of the proposal without change. One commenter asserted that the interim final rule should not require a banking organization to determine whether an instrument is liquid on a daily basis, but rather should base the timing of such determination by product category and on long-term liquidity data. According to the commenter, such an approach would avoid potential confusion, volatility and destabilization of the funding markets. For purposes of determining whether collateral is illiquid or an OTC derivative contract is easily replaceable under the interim final rule, an FDIC-supervised institution may assess whether, during a period of stressed market conditions, it could obtain multiple price quotes within two days or less for the collateral or OTC derivative that would not move the market or represent a market discount (in the case of collateral) or a premium (in the case of an OTC derivative). An FDIC-supervised institution is not required to make a daily determination of liquidity under the interim final rule; rather, FDICsupervised institutions should have policies and procedures in place to evaluate the liquidity of their collateral as frequently as warranted. Under the proposed rule, a banking organization would increase the holding period for a netting set if over the two previous quarters more than two margin disputes on a netting set have occurred that lasted longer than the holding period. However, consistent with the Basel capital framework, a banking organization would not be required to adjust the holding period upward for cleared transactions. Several commenters requested further clarification on the meaning of ‘‘margin disputes.’’ Some of these commenters suggested restricting ‘‘margin disputes’’ to formal legal action. Commenters also suggested restricting ‘‘margin disputes’’ to disputes resulting in the creation of an exposure that exceeded any available overcollateralization, or establishing a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 materiality threshold. One commenter suggested that margin disputes were not an indicator of an increased risk and, therefore, should not trigger a longer holding period. The FDIC continues to believe that an increased holding period is appropriate regardless of whether the dispute exceeds applicable collateral requirements and regardless of whether the disputes exceed a materiality threshold. The FDIC expects that the determination as to whether a dispute constitutes a margin dispute for purposes of the interim final rule will depend solely on the timing of the resolution. That is to say, if collateral is not delivered within the time period required under an agreement, and such failure to deliver is not resolved in a timely manner, then such failure would count toward the two-margin-dispute limit. For the purpose of the interim final rule, where a dispute is subject to a recognized industry dispute resolution protocol, the FDIC expects to consider the dispute period to begin after a thirdparty dispute resolution mechanism has failed. For comments and concerns that are specific to the parallel provisions in the advanced approaches rule, reference section XII.A of this preamble. f. Own Estimates of Haircuts Under the interim final rule, consistent with the proposal, FDICsupervised institutions may calculate market price volatility and foreign exchange volatility using own internal estimates with prior written approval of the FDIC. To receive approval to calculate haircuts using its own internal estimates, an FDIC-supervised institution must meet certain minimum qualitative and quantitative standards set forth in the interim final rule, including the requirements that an FDIC-supervised institution: (1) uses a 99th percentile one-tailed confidence interval and a minimum five-businessday holding period for repo-style transactions and a minimum tenbusiness-day holding period for all other transactions; (2) adjusts holding periods upward where and as appropriate to take into account the illiquidity of an instrument; (3) selects a historical observation period that reflects a continuous 12-month period of significant financial stress appropriate to the FDIC-supervised institution’s current portfolio; and (4) updates its data sets and compute haircuts no less frequently than quarterly, as well as any time market prices change materially. An FDICsupervised institution estimates the volatilities of exposures, the collateral, and foreign exchange rates and should PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 not take into account the correlations between them. The interim final rule provides a formula for converting own-estimates of haircuts based on a holding period different from the minimum holding period under the rule to haircuts consistent with the rule’s minimum holding periods. The minimum holding periods for netting sets with more than 5,000 trades, netting sets involving illiquid collateral or an OTC derivative that cannot easily be replaced, and netting sets involving more than two margin disputes over the previous two quarters described above also apply for own-estimates of haircuts. Under the interim final rule, an FDICsupervised institution is required to have policies and procedures that describe how it determines the period of significant financial stress used to calculate the FDIC-supervised institution’s own internal estimates, and to be able to provide empirical support for the period used. These policies and procedures must address (1) how the FDIC-supervised institution links the period of significant financial stress used to calculate the own internal estimates to the composition and directional bias of the FDIC-supervised institution’s current portfolio; and (2) the FDIC-supervised institution’s process for selecting, reviewing, and updating the period of significant financial stress used to calculate the own internal estimates and for monitoring the appropriateness of the 12-month period in light of the FDICsupervised institution’s current portfolio. The FDIC-supervised institution is required to obtain the prior approval of the FDIC for these policies and procedures and notify the FDIC if it makes any material changes to them. The FDIC may require it to use a different period of significant financial stress in the calculation of its own internal estimates. Under the interim final rule, an FDICsupervised institution is allowed to calculate internally estimated haircuts for categories of debt securities that are investment-grade exposures. The haircut for a category of securities must be representative of the internal volatility estimates for securities in that category that the FDIC-supervised institution has lent, sold subject to repurchase, posted as collateral, borrowed, purchased subject to resale, or taken as collateral. In determining relevant categories, the FDIC-supervised institution must, at a minimum, take into account (1) the type of issuer of the security; (2) the credit quality of the security; (3) the maturity of the security; E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations and (4) the interest rate sensitivity of the security. An FDIC-supervised institution must calculate a separate internally estimated haircut for each individual noninvestment-grade debt security and for each individual equity security. In addition, an FDIC-supervised institution must estimate a separate currency mismatch haircut for its net position in each mismatched currency based on estimated volatilities for foreign exchange rates between the mismatched currency and the settlement currency where an exposure or collateral (whether in the form of cash or securities) is denominated in a currency that differs from the settlement currency. emcdonald on DSK67QTVN1PROD with RULES2 g. Simple Value-at-Risk and Internal Models Methodology In the NPR, the agencies did not propose a simple VaR approach to calculate exposure amounts for eligible margin loans and repo-style transactions or IMM to calculate the exposure amount for the counterparty credit exposure for OTC derivatives, eligible margin loans, and repo-style transactions. These methodologies are included in the advanced approaches rule. The agencies sought comment on whether to implement the simple VaR approach and IMM in the standardized approach. Several commenters asserted that the IMM and simple VaR approach should be implemented in the interim final rule to better capture the risk of counterparty credit exposures. The FDIC has considered these comments and has concluded that the increased complexity and limited applicability of these models-based approaches is inconsistent with the FDIC’s overall focus in the standardized approach on simplicity, comparability, and broad applicability of methodologies for U.S. FDIC-supervised institutions. Therefore, consistent with the proposal, the interim final rule does not include the simple VaR approach or the IMM in the standardized approach. G. Unsettled Transactions Under the proposed rule, a banking organization would be required to hold capital against the risk of certain unsettled transactions. One commenter expressed opposition to assigning a risk weight to unsettled transactions where previously none existed, because it would require a significant and burdensome tracking process without commensurate benefit. The FDIC believes that it is important for an FDICsupervised institution to have procedures to identify and track a delayed or unsettled transaction of the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 types specified in the rule. Such procedures capture the resulting risks associated with such delay. As a result, the FDIC is adopting the risk-weighting requirements as proposed. Consistent with the proposal, the interim final rule provides for a separate risk-based capital requirement for transactions involving securities, foreign exchange instruments, and commodities that have a risk of delayed settlement or delivery. Under the interim final rule, the capital requirement does not, however, apply to certain types of transactions, including: (1) cleared transactions that are marked-to-market daily and subject to daily receipt and payment of variation margin; (2) repostyle transactions, including unsettled repo-style transactions; (3) one-way cash payments on OTC derivative contracts; or (4) transactions with a contractual settlement period that is longer than the normal settlement period (which the proposal defined as the lesser of the market standard for the particular instrument or five business days).150 In the case of a system-wide failure of a settlement, clearing system, or central counterparty, the FDIC may waive riskbased capital requirements for unsettled and failed transactions until the situation is rectified. The interim final rule provides separate treatments for delivery-versuspayment (DvP) and payment-versuspayment (PvP) transactions with a normal settlement period, and non-DvP/ non-PvP transactions with a normal settlement period. A DvP transaction refers to a securities or commodities transaction in which the buyer is obligated to make payment only if the seller has made delivery of the securities or commodities and the seller is obligated to deliver the securities or commodities only if the buyer has made payment. A PvP transaction means a foreign exchange transaction in which each counterparty is obligated to make a final transfer of one or more currencies only if the other counterparty has made a final transfer of one or more currencies. A transaction is considered to have a normal settlement period if the contractual settlement period for the transaction is equal to or less than the market standard for the instrument underlying the transaction and equal to or less than five business days. Consistent with the proposal, under the interim final rule, an FDICsupervised institution is required to hold risk-based capital against a DvP or PvP transaction with a normal 150 Such transactions are treated as derivative contracts as provided in section 34 or section 35 of the interim final rule. PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 55429 settlement period if the FDIC-supervised institution’s counterparty has not made delivery or payment within five business days after the settlement date. The FDIC-supervised institution determines its risk-weighted asset amount for such a transaction by multiplying the positive current exposure of the transaction for the FDICsupervised institution by the appropriate risk weight in Table 23. The positive current exposure from an unsettled transaction of an FDICsupervised institution is the difference between the transaction value at the agreed settlement price and the current market price of the transaction, if the difference results in a credit exposure of the FDIC-supervised institution to the counterparty. TABLE 23—RISK WEIGHTS FOR UNSETTLED DVP AND PVP TRANSACTIONS Number of business days after contractual settlement date From From From 46 or 5 to 15 ................... 16 to 30 ................. 31 to 45 ................. more ...................... Risk weight to be applied to positive current exposure (in percent) 100.0 625.0 937.5 1,250.0 An FDIC-supervised institution must hold risk-based capital against any nonDvP/non-PvP transaction with a normal settlement period if the FDIC-supervised institution delivered cash, securities, commodities, or currencies to its counterparty but has not received its corresponding deliverables by the end of the same business day. The FDICsupervised institution must continue to hold risk-based capital against the transaction until it has received the corresponding deliverables. From the business day after the FDIC-supervised institution has made its delivery until five business days after the counterparty delivery is due, the FDIC-supervised institution must calculate the riskweighted asset amount for the transaction by risk weighting the current fair value of the deliverables owed to the FDIC-supervised institution, using the risk weight appropriate for an exposure to the counterparty in accordance with section 32. If an FDICsupervised institution has not received its deliverables by the fifth business day after the counterparty delivery due date, the FDIC-supervised institution must assign a 1,250 percent risk weight to the current market value of the deliverables owed. E:\FR\FM\10SER2.SGM 10SER2 55430 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations H. Risk-Weighted Assets for Securitization Exposures In the proposal, the agencies proposed to significantly revise the risk-based capital framework for securitization exposures. These proposed revisions included removing references to and reliance on credit ratings to determine risk weights for these exposures and using alternative standards of creditworthiness, as required by section 939A of the Dodd-Frank Act. These alternative standards were designed to produce capital requirements that generally would be consistent with those under the BCBS securitization framework and were consistent with those incorporated into the agencies’ market risk rule.151 They would have replaced both the ratings-based approach and an approach that permits banking organizations to use supervisorapproved internal systems to replicate external ratings processes for certain unrated exposures in the general riskbased capital rules. In addition, the agencies proposed to update the terminology for the securitization framework, include a definition of securitization exposure that encompasses a wider range of exposures with similar risk characteristics, and implement new due diligence requirements for securitization exposures. emcdonald on DSK67QTVN1PROD with RULES2 1. Overview of the Securitization Framework and Definitions The proposed securitization framework was designed to address the credit risk of exposures that involve the tranching of credit risk of one or more underlying financial exposures. Consistent with the proposal, the interim final rule defines a securitization exposure as an on- or offbalance sheet credit exposure (including credit-enhancing representations and warranties) that arises from a traditional or synthetic securitization (including a resecuritization), or an exposure that directly or indirectly references a securitization exposure. Commenters expressed concerns that the proposed scope of the securitization framework was overly broad and requested that the definition of securitizations be narrowed to exposures that tranche the credit risk associated with a pool of assets. However, the FDIC believes that limiting the securitization framework to exposures backed by a pool of assets would exclude tranched credit risk exposures that are appropriately captured under the securitization framework, such as certain first loss or 151 77 FR 53060 (August 30, 2012). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 other tranched guarantees provided to a single underlying exposure. In the proposal a traditional securitization was defined, in part, as a transaction in which credit risk of one or more underlying exposures has been transferred to one or more third parties (other than through the use of credit derivatives or guarantees), where the credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority. The definition included certain other conditions, such as requiring all or substantially all of the underlying exposures to be financial exposures. The FDIC has decided to finalize the definition of traditional securitization largely as proposed, with some revisions (as discussed below), that reflect certain comments regarding exclusions under the framework and other modifications to the interim final rule. Both the designation of exposures as securitization exposures (or resecuritization exposures, as described below) and the calculation of risk-based capital requirements for securitization exposures under the interim final rule are guided by the economic substance of a transaction rather than its legal form. Provided there is tranching of credit risk, securitization exposures could include, among other things, ABS and MBS, loans, lines of credit, liquidity facilities, financial standby letters of credit, credit derivatives and guarantees, loan servicing assets, servicer cash advance facilities, reserve accounts, credit-enhancing representations and warranties, and credit-enhancing interest-only strips (CEIOs). Securitization exposures also include assets sold with retained tranches. The FDIC believes that requiring all or substantially all of the underlying exposures of a securitization to be financial exposures creates an important boundary between the general credit risk framework and the securitization framework. Examples of financial exposures include loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities. Based on their cash flow characteristics, the FDIC also considers asset classes such as lease residuals and entertainment royalties to be financial assets. The securitization framework is not designed, however, to apply to tranched credit exposures to commercial or industrial companies or nonfinancial assets or to amounts deducted from capital under section 22 of the interim final rule. Accordingly, a specialized loan to finance the construction or acquisition of large-scale PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 projects (for example, airports or power plants), objects (for example, ships, aircraft, or satellites), or commodities (for example, reserves, inventories, precious metals, oil, or natural gas) generally would not be a securitization exposure because the assets backing the loan typically are nonfinancial assets (the facility, object, or commodity being financed). Consistent with the proposal, under the interim final rule, an operating company does not fall under the definition of a traditional securitization (even if substantially all of its assets are financial exposures). Operating companies generally refer to companies that are established to conduct business with clients with the intention of earning a profit in their own right and generally produce goods or provide services beyond the business of investing, reinvesting, holding, or trading in financial assets. Accordingly, an equity investment in an operating company generally would be an equity exposure. Under the interim final rule, FDIC-supervised institutions are operating companies and do not fall under the definition of a traditional securitization. However, investment firms that generally do not produce goods or provide services beyond the business of investing, reinvesting, holding, or trading in financial assets, would not be operating companies under the interim final rule and would not qualify for this general exclusion from the definition of traditional securitization. Under the proposed rule, paragraph (10) of the definition of traditional securitization specifically excluded exposures to investment funds (as defined in the proposal) and collective investment and pension funds (as defined in relevant regulations and set forth in the proposed definition of ‘‘traditional securitization’’). These specific exemptions served to narrow the potential scope of the securitization framework. Investment funds, collective investment funds, pension funds regulated under ERISA and their foreign equivalents, and transactions registered with the SEC under the Investment Company Act of 1940 and their foreign equivalents would be exempted from the definition because these entities and transactions are regulated and subject to strict leverage requirements. The proposal defined an investment fund as a company (1) where all or substantially all of the assets of the fund are financial assets; and (2) that has no material liabilities. In addition, the agencies explained in the proposal that the capital requirements for an extension of credit to, or an equity holding in, these E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations transactions are more appropriately calculated under the rules for corporate and equity exposures, and that the securitization framework was not intended to apply to such transactions. Commenters generally agreed with the proposed exemptions from the definition of traditional securitization and requested that the agencies provide exemptions for exposures to a broader set of investment firms, such as pension funds operated by state and local governments. In view of the comments regarding pension funds, the interim final rule provides an additional exclusion from the definition of traditional securitization for a ‘‘governmental plan’’ (as defined in 29 U.S.C. 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code. The FDIC believes that an exemption for such government plans is appropriate because they are subject to substantial regulation. Commenters also requested that the agencies provide exclusions for certain products provided to investment firms, such as extensions of short-term credit that support day-to-day investment-related activities. The FDIC believes that exposures that meet the definition of traditional securitization, regardless of product type or maturity, would fall under the securitization framework. Accordingly, the FDIC has not provided for any such exemptions under the interim final rule.152 To address the treatment of investment firms that are not specifically excluded from the securitization framework, the proposed rule provided discretion to the primary Federal supervisor of a banking organization to exclude from the definition of a traditional securitization those transactions in which the underlying exposures are owned by an investment firm that exercises substantially unfettered control over the size and composition of its assets, liabilities, and off-balance sheet exposures. While the commenters supported the agencies’ recognition that certain investment firms may warrant an exemption from the securitization framework, some expressed concern that the process for making such a determination may present significant implementation burden. To maintain sufficient flexibility to provide an exclusion for certain investment firms from the securitization framework, the FDIC has retained this discretionary provision in the interim 152 The interim final rule also clarifies that the portion of a synthetic exposure to the capital of a financial institution that is deducted from capital is not a traditional securitization. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 final rule without change. In determining whether to exclude an investment firm from the securitization framework, the FDIC will consider a number of factors, including the assessment of the transaction’s leverage, risk profile, and economic substance. This supervisory exclusion gives the FDIC discretion to distinguish structured finance transactions, to which the securitization framework is designed to apply, from those of flexible investment firms, such as certain hedge funds and private equity funds. Only investment firms that can easily change the size and composition of their capital structure, as well as the size and composition of their assets and offbalance sheet exposures, are eligible for the exclusion from the definition of traditional securitization under this provision. The FDIC does not consider managed collateralized debt obligation vehicles, structured investment vehicles, and similar structures, which allow considerable management discretion regarding asset composition but are subject to substantial restrictions regarding capital structure, to have substantially unfettered control. Thus, such transactions meet the definition of traditional securitization under the interim final rule. The line between securitization exposures and non-securitization exposures may be difficult to identify in some circumstances. In addition to the supervisory exclusion from the definition of traditional securitization described above, FDIC may expand the scope of the securitization framework to include other transactions if doing so is justified by the economics of the transaction. Similar to the analysis for excluding an investment firm from treatment as a traditional securitization, the FDIC will consider the economic substance, leverage, and risk profile of a transaction to ensure that an appropriate risk-based capital treatment is applied. The FDIC will consider a number of factors when assessing the economic substance of a transaction including, for example, the amount of equity in the structure, overall leverage (whether on- or off-balance sheet), whether redemption rights attach to the equity investor, and the ability of the junior tranches to absorb losses without interrupting contractual payments to more senior tranches. Under the proposal, a synthetic securitization was defined as a transaction in which: (1) all or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties through the use of one or more credit derivatives or guarantees (other than a guarantee that PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 55431 transfers only the credit risk of an individual retail exposure); (2) the credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority; (3) performance of the securitization exposures depends upon the performance of the underlying exposures; and (4) all or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities). The FDIC has decided to finalize the definition of synthetic securitization largely as proposed, but has also clarified in the interim final rule that transactions in which a portion of credit risk has been retained, not just transferred, through the use of credit derivatives is subject to the securitization framework. In response to the proposal, commenters requested that the agencies provide an exemption for guarantees that tranche credit risk under certain mortgage partnership finance programs, such as certain programs provided by the FHLBs, whereby participating member banking organizations provide credit enhancement to a pool of residential mortgage loans that have been delivered to the FHLB. The FDIC believes that these exposures that tranche credit risk meet the definition of a synthetic securitization and that the risk of such exposures would be appropriately captured under the securitization framework. In contrast, mortgage-backed pass-through securities (for example, those guaranteed by FHLMC or FNMA) that feature various maturities but do not involve tranching of credit risk do not meet the definition of a securitization exposure. Only those MBS that involve tranching of credit risk are considered to be securitization exposures. Consistent with the 2009 Enhancements, the proposed rule defined a resecuritization exposure as an on- or off-balance sheet exposure to a resecuritization; or an exposure that directly or indirectly references a resecuritization exposure. A resecuritization would have meant a securitization in which one or more of the underlying exposures is a securitization exposure. An exposure to an asset-backed commercial paper (ABCP) program would not have been a resecuritization exposure if either: (1) the program-wide credit enhancement does not meet the definition of a resecuritization exposure; or (2) the entity sponsoring the program fully E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55432 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations supports the commercial paper through the provision of liquidity so that the commercial paper holders effectively are exposed to the default risk of the sponsor instead of the underlying exposures. Commenters asked the agencies to narrow the definition of resecuritization by exempting resecuritizations in which a minimal amount of underlying assets are securitization exposures. According to commenters, the proposed definition would have a detrimental effect on certain collateralized loan obligation exposures, which typically include a small amount of securitization exposures as part of the underlying pool of assets in a securitization. Specifically, the commenters requested that resecuritizations be defined as a securitization in which five percent or more of the underlying exposures are securitizations. Commenters also asked the agencies to consider employing a pro rata treatment by only applying a higher capital surcharge to the portion of a securitization exposure that is backed by underlying securitization exposures. The FDIC believes that the introduction of securitization exposures into a pool of securitized exposures significantly increases the complexity and correlation risk of the exposures backing the securities issued in the transaction, and that the resecuritization framework is appropriate for applying risk-based capital requirements to exposures to pools that contain securitization exposures. Commenters sought clarification as to whether the proposed definition of resecuritization would include a single exposure that has been retranched, such as a resecuritization of a real estate mortgage investment conduit (ReREMIC). The FDIC believes that the increased capital surcharge, or p factor, for resecuritizations was meant to address the increased correlation risk and complexity resulting from retranching of multiple underlying exposures and was not intended to apply to the retranching of a single underlying exposure. As a result, the definition of resecuritization in the interim final rule has been refined to clarify that resecuritizations do not include exposures comprised of a single asset that has been retranched. The FDIC notes that for purposes of the interim final rule, a resecuritization does not include pass-through securities that have been pooled together and effectively re-issued as tranched securities. This is because the passthrough securities do not tranche credit protection and, as a result, are not considered securitization exposures under the interim final rule. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Under the interim final rule, if a transaction involves a traditional multiseller ABCP conduit, an FDICsupervised institution must determine whether the transaction should be considered a resecuritization exposure. For example, assume that an ABCP conduit acquires securitization exposures where the underlying assets consist of wholesale loans and no securitization exposures. As is typically the case in multi-seller ABCP conduits, each seller provides first-loss protection by over-collateralizing the conduit to which it sells loans. To ensure that the commercial paper issued by each conduit is highly-rated, an FDICsupervised institution sponsor provides either a pool-specific liquidity facility or a program-wide credit enhancement such as a guarantee to cover a portion of the losses above the seller-provided protection. The pool-specific liquidity facility generally is not a resecuritization exposure under the interim final rule because the pool-specific liquidity facility represents a tranche of a single asset pool (that is, the applicable pool of wholesale exposures), which contains no securitization exposures. However, a sponsor’s program-wide credit enhancement that does not cover all losses above the seller-provided credit enhancement across the various pools generally constitutes tranching of risk of a pool of multiple assets containing at least one securitization exposure, and, therefore, is a resecuritization exposure. In addition, if the conduit in this example funds itself entirely with a single class of commercial paper, then the commercial paper generally is not a resecuritization exposure if, as noted above, either (1) the program-wide credit enhancement does not meet the definition of a resecuritization exposure or (2) the commercial paper is fully supported by the sponsoring FDICsupervised institution. When the sponsoring FDIC-supervised institution fully supports the commercial paper, the commercial paper holders effectively are exposed to default risk of the sponsor instead of the underlying exposures, and the external rating of the commercial paper is expected to be based primarily on the credit quality of the FDIC-supervised institution sponsor, thus ensuring that the commercial paper does not represent a tranched risk position. 2. Operational Requirements a. Due Diligence Requirements During the recent financial crisis, it became apparent that many banking organizations relied exclusively on PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 ratings issued by Nationally Recognized Statistical Rating Organizations (NRSROs) and did not perform internal credit analysis of their securitization exposures. Consistent with the Basel capital framework and the agencies’ general expectations for investment analysis, the proposal required banking organizations to satisfy specific due diligence requirements for securitization exposures. Specifically, under the proposal a banking organization would be required to demonstrate, to the satisfaction of its primary Federal supervisor, a comprehensive understanding of the features of a securitization exposure that would materially affect its performance. The banking organization’s analysis would have to be commensurate with the complexity of the exposure and the materiality of the exposure in relation to capital of the banking organization. On an ongoing basis (no less frequently than quarterly), the banking organization must evaluate, review, and update as appropriate the analysis required under section 41(c)(1) of the proposed rule for each securitization exposure. The analysis of the risk characteristics of the exposure prior to acquisition, and periodically thereafter, would have to consider: (1) Structural features of the securitization that materially impact the performance of the exposure, for example, the contractual cash-flow waterfall, waterfall-related triggers, credit enhancements, liquidity enhancements, market value triggers, the performance of organizations that service the position, and deal-specific definitions of default; (2) Relevant information regarding the performance of the underlying credit exposure(s), for example, the percentage of loans 30, 60, and 90 days past due; default rates; prepayment rates; loans in foreclosure; property types; occupancy; average credit score or other measures of creditworthiness; average LTV ratio; and industry and geographic diversification data on the underlying exposure(s); (3) Relevant market data of the securitization, for example, bid-ask spread, most recent sales price and historical price volatility, trading volume, implied market rating, and size, depth and concentration level of the market for the securitization; and (4) For resecuritization exposures, performance information on the underlying securitization exposures, for example, the issuer name and credit quality, and the characteristics and performance of the exposures underlying the securitization exposures. Commenters expressed concern that many banking organizations would be E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations unable to perform the due diligence necessary to meet the requirements and, as a result, would no longer purchase privately-issued securitization exposures and would increase their holdings of GSE-guaranteed securities, thereby increasing the size of the GSEs. Commenters also expressed concerns regarding banking organizations’ ability to obtain relevant market data for certain exposures, such as foreign exposures and exposures that are traded in markets that are typically illiquid, as well as their ability to obtain market data during periods of general market illiquidity. Commenters also stated concerns that uneven application of the requirements by supervisors may result in disparate treatment for the same exposure held at different banking organizations due to perceived management deficiencies. For these reasons, many commenters requested that the agencies consider removing the market data requirement from the due diligence requirements. In addition, some commenters suggested that the due diligence requirements be waived provided that all of the underlying loans meet certain underwriting standards. The FDIC notes that the proposed due diligence requirements are generally consistent with the goal of the its investment permissibility requirements, which provide that FDIC-supervised institutions must be able to determine the risk of loss is low, even under adverse economic conditions. The FDIC acknowledges potential restrictions on data availability and believes that the standards provide sufficient flexibility so that the due diligence requirements, such as relevant market data requirements, would be implemented as applicable. In addition, the FDIC notes that, where appropriate, pool-level data could be used to meet certain of the due diligence requirements. As a result, the FDIC is finalizing the due diligence requirements as proposed. Under the proposal, if a banking organization is not able to meet these due diligence requirements and demonstrate a comprehensive understanding of a securitization exposure to the satisfaction of its primary Federal supervisor, the banking organization would be required to assign a risk weight of 1,250 percent to the exposure. Commenters requested that the agencies adopt a more flexible approach to due diligence requirements rather than requiring a banking organization to assign a risk weight of 1,250 percent for violation of those requirements. For example, some commenters recommended that the agencies assign progressively increasing risk weights based on the severity and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 duration of infringements of due diligence requirements, to allow the agencies to differentiate between minor gaps in due diligence requirements and more serious violations. The FDIC believes that the requirement to assign a 1,250 percent risk weight, rather than applying a lower risk weight, to exposures for violation of these requirements is appropriate given that such information is required to monitor appropriately the risk of the underlying assets. The FDIC recognizes the importance of consistent and uniform application of the standards across FDIC-supervised institutions and will endeavor to ensure that the FDIC consistently reviews FDIC-supervised institutions’ due diligence on securitization exposures. The FDIC believes that these efforts will mitigate concerns that the 1,250 percent risk weight will be applied inappropriately to FDIC-supervised institutions’ failure to meet the due diligence requirements. At the same time, the FDIC believes that the requirement that an FDIC-supervised institution’s analysis be commensurate with the complexity and materiality of the securitization exposure provides the FDIC-supervised institution with sufficient flexibility to mitigate the potential for undue burden. As a result, the FDIC is finalizing the risk weight requirements related to due diligence requirements as proposed. b. Operational Requirements for Traditional Securitizations The proposal outlined certain operational requirements for traditional securitizations that had to be met in order to apply the securitization framework. The FDIC is finalizing these operational requirements as proposed. In a traditional securitization, an originating FDIC-supervised institution typically transfers a portion of the credit risk of exposures to third parties by selling them to a securitization special purpose entity (SPE).153 Consistent with the proposal, the interim final rule defines an FDIC-supervised institution to be an originating FDIC-supervised institution with respect to a securitization if it (1) directly or indirectly originated or securitized the underlying exposures included in the 153 The interim final rule defines a securitization SPE as a corporation, trust, or other entity organized for the specific purpose of holding underlying exposures of a securitization, the activities of which are limited to those appropriate to accomplish this purpose, and the structure of which is intended to isolate the underlying exposures held by the entity from the credit risk of the seller of the underlying exposures to the entity. PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 55433 securitization; or (2) serves as an ABCP program sponsor to the securitization. Under the interim final rule, consistent with the proposal, an FDICsupervised institution that transfers exposures it has originated or purchased to a securitization SPE or other third party in connection with a traditional securitization can exclude the underlying exposures from the calculation of risk-weighted assets only if each of the following conditions are met: (1) The exposures are not reported on the FDIC-supervised institution’s consolidated balance sheet under GAAP; (2) the FDIC-supervised institution has transferred to one or more third parties credit risk associated with the underlying exposures; and (3) any clean-up calls relating to the securitization are eligible clean-up calls (as discussed below).154 An originating FDIC-supervised institution that meets these conditions must hold risk-based capital against any credit risk it retains or acquires in connection with the securitization. An originating FDIC-supervised institution that fails to meet these conditions is required to hold risk-based capital against the transferred exposures as if they had not been securitized and must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from the transaction. In addition, if a securitization (1) includes one or more underlying exposures in which the borrower is permitted to vary the drawn amount within an agreed limit under a line of credit, and (2) contains an early amortization provision, the originating FDIC-supervised institution is required to hold risk-based capital against the transferred exposures as if they had not been securitized and deduct from common equity tier 1 capital any aftertax gain-on-sale resulting from the transaction.155 The FDIC believes that 154 Commenters asked the agencies to consider the interaction between the proposed nonconsolidation condition and the agencies’ proposed rules implementing section 941 of the Dodd-Frank Act regarding risk retention, given concerns that satisfaction of certain of the proposed risk retention requirements would affect the accounting treatment for certain transactions. The FDIC acknowledges these concerns and will take into consideration any effects on the securitization framework as they continue to develop the risk retention rules. 155 Many securitizations of revolving credit facilities (for example, credit card receivables) contain provisions that require the securitization to be wound down and investors to be repaid if the excess spread falls below a certain threshold. This decrease in excess spread may, in some cases, be caused by deterioration in the credit quality of the underlying exposures. An early amortization event can increase an FDIC-supervised institution capital needs if new draws on the revolving credit facilities need to be financed by the FDIC-supervised E:\FR\FM\10SER2.SGM Continued 10SER2 55434 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations this treatment is appropriate given the lack of risk transference in securitizations of revolving underlying exposures with early amortization provisions. c. Operational Requirements for Synthetic Securitizations emcdonald on DSK67QTVN1PROD with RULES2 In general, the proposed operational requirements for synthetic securitizations were similar to those proposed for traditional securitizations. The operational requirements for synthetic securitizations, however, were more detailed to ensure that the originating banking organization has truly transferred credit risk of the underlying exposures to one or more third parties. Under the proposal, an originating banking organization would have been able to recognize for riskbased capital purposes the use of a credit risk mitigant to hedge underlying exposures only if each of the conditions in the proposed definition of ‘‘synthetic securitization’’ was satisfied. The FDIC is finalizing the operational requirements largely as proposed. However, to ensure that synthetic securitizations created through tranched guarantees and credit derivatives are properly included in the framework, in the interim final rule the FDIC has amended the operational requirements to recognize guarantees that meet all of the criteria set forth in the definition of eligible guarantee except the criterion under paragraph (3) of the definition. Additionally, the operational criteria recognize a credit derivative provided that the credit derivative meets all of the criteria set forth in the definition of eligible credit derivative except for paragraph 3 of the definition of eligible guarantee. As a result, a guarantee or credit derivative that provides a tranched guarantee would not be excluded by the operational requirements for synthetic securitizations. Failure to meet these operational requirements for a synthetic institution using on-balance sheet sources of funding. The payment allocations used to distribute principal and finance charge collections during the amortization phase of these transactions also can expose the FDIC-supervised institution to a greater risk of loss than in other securitization transactions. The interim final rule defines an early amortization provision as a provision in a securitization’s governing documentation that, when triggered, causes investors in the securitization exposures to be repaid before the original stated maturity of the securitization exposure, unless the provision (1) is solely triggered by events not related to the performance of the underlying exposures or the originating FDIC-supervised institution (such as material changes in tax laws or regulations), or (2) leaves investors fully exposed to future draws by borrowers on the underlying exposures even after the provision is triggered. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 securitization prevents an FDICsupervised institution that has purchased tranched credit protection referencing one or more of its exposures from using the securitization framework with respect to the reference exposures and requires the FDIC-supervised institution to hold risk-based capital against the underlying exposures as if they had not been synthetically securitized. An FDIC-supervised institution that holds a synthetic securitization as a result of purchasing credit protection may use the securitization framework to determine the risk-based capital requirement for its exposure. Alternatively, it may instead choose to disregard the credit protection and use the general credit risk framework. An FDIC-supervised institution that provides tranched credit protection in the form of a synthetic securitization or credit protection to a synthetic securitization must use the securitization framework to compute risk-based capital requirements for its exposures to the synthetic securitization even if the originating FDIC-supervised institution fails to meet one or more of the operational requirements for a synthetic securitization. d. Clean-Up Calls Under the proposal, to satisfy the operational requirements for securitizations and enable an originating banking organization to exclude the underlying exposures from the calculation of its risk-based capital requirements, any clean-up call associated with a securitization would need to be an eligible clean-up call. The proposed rule defined a clean-up call as a contractual provision that permits an originating banking organization or servicer to call securitization exposures before their stated maturity or call date. In the case of a traditional securitization, a clean-up call generally is accomplished by repurchasing the remaining securitization exposures once the amount of underlying exposures or outstanding securitization exposures falls below a specified level. In the case of a synthetic securitization, the cleanup call may take the form of a clause that extinguishes the credit protection once the amount of underlying exposures has fallen below a specified level. The interim final rule retains the proposed treatment for clean-up calls, and defines an eligible clean-up call as a clean-up call that (1) is exercisable solely at the discretion of the originating FDIC-supervised institution or servicer; (2) is not structured to avoid allocating losses to securitization exposures held by investors or otherwise structured to PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 provide credit enhancement to the securitization (for example, to purchase non-performing underlying exposures); and (3) for a traditional securitization, is only exercisable when 10 percent or less of the principal amount of the underlying exposures or securitization exposures (determined as of the inception of the securitization) is outstanding; or, for a synthetic securitization, is only exercisable when 10 percent or less of the principal amount of the reference portfolio of underlying exposures (determined as of the inception of the securitization) is outstanding. Where a securitization SPE is structured as a master trust, a cleanup call with respect to a particular series or tranche issued by the master trust meets criteria (3) of the definition of ‘‘eligible clean-up call’’ as long as the outstanding principal amount in that series or tranche was 10 percent or less of its original amount at the inception of the series. 3. Risk-Weighted Asset Amounts for Securitization Exposures The proposed framework for assigning risk-based capital requirements to securitization exposures required banking organizations generally to calculate a risk-weighted asset amount for a securitization exposure by applying either (i) the simplified supervisory formula approach (SSFA), described in section VIII.H of the preamble, or (ii) if the banking organization is not subject to the market risk rule, a gross-up approach similar to an approach provided under the general risk-based capital rules. A banking organization would be required to apply either the SSFA or the gross-up approach consistently across all of its securitization exposures. However, a banking organization could choose to assign a 1,250 percent risk weight to any securitization exposure. Commenters expressed concerns regarding the potential differences in risk weights for similar exposures when using the gross-up approach compared to the SSFA, and the potential for capital arbitrage depending on the outcome of capital treatment under the framework. The FDIC acknowledges these concerns and, to reduce arbitrage opportunities, has required that a banking organization apply either the gross-up approach or the SSFA consistently across all of its securitization exposures. Commenters also asked the agencies to clarify how often and under what circumstances a banking organization is allowed to switch between the SSFA and the grossup approach. While the FDIC is not placing restrictions on the ability of E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations FDIC-supervised institutions to switch from the SSFA to the gross-up approach, the FDIC does not anticipate there should be a need for frequent changes in methodology by an FDIC-supervised institution absent significant change in the nature of the FDIC-supervised institution’s securitization activities, and expect FDIC-supervised institutions to be able to provide a rationale for changing methodologies to the FDIC if requested. Citing potential disadvantages of the proposed securitization framework as compared to standards to be applied to international competitors that rely on the use of credit ratings, some commenters requested that banking organizations be able to continue to implement a ratings-based approach to allow the agencies more time to calibrate the SSFA in accordance with international standards that rely on ratings. The FDIC again observes that the use of ratings in FDIC regulations is inconsistent with section 939A of the Dodd-Frank Act. Accordingly, the interim final rule does not include any references to, or reliance on, credit ratings. The FDIC has determined that the SSFA is an appropriate substitute standard to credit ratings that can be used to measure risk-based capital requirements and may be implemented uniformly across institutions. Under the proposed securitization framework, banking organizations would have been required or could choose to assign a risk weight of 1,250 percent to certain securitization exposures. Commenters stated that the 1,250 percent risk weight required under certain circumstances in the securitization framework would penalize banking organizations that hold capital above the total risk-based capital minimum and could require a banking organization to hold more capital against the exposure than the actual exposure amount at risk. As a result, commenters requested that the amount of risk-based capital required to be held against a banking organization’s exposure be capped at the exposure amount. The FDIC has decided to retain the proposed 1,250 percent risk weight in the interim final rule, consistent with their overall goals of simplicity and comparability, to provide for comparability in risk-weighted asset amounts for the same exposure across institutions. Consistent with the proposal, the interim final rule provides for alternative treatment of securitization exposures to ABCP programs and certain gains-on-sale and CEIO exposures. Specifically, similar to the general risk-based capital rules, the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 interim final rule includes a minimum 100 percent risk weight for interest-only mortgage-backed securities and exceptions to the securitization framework for certain small-business loans and certain derivatives as described below. An FDIC-supervised institution may use the securitization credit risk mitigation rules to adjust the capital requirement under the securitization framework for an exposure to reflect certain collateral, credit derivatives, and guarantees, as described in more detail below. a. Exposure Amount of a Securitization Exposure Under the interim final rule, the exposure amount of an on-balance sheet securitization exposure that is not a repo-style transaction, eligible margin loan, OTC derivative contract or derivative that is a cleared transaction is generally the FDIC-supervised institution’s carrying value of the exposure. The interim final rule modifies the proposed treatment for determining exposure amounts under the securitization framework to reflect the ability of an FDIC-supervised institution not subject to the advanced approaches rule to make an AOCI optout election. As a result, the exposure amount of an on-balance sheet securitization exposure that is an available-for-sale debt security or an available-for-sale debt security transferred to held-to-maturity held by an FDIC-supervised institution that has made an AOCI opt-out election is the FDIC-supervised institution’s carrying value (including net accrued but unpaid interest and fees), less any net unrealized gains on the exposure and plus any net unrealized losses on the exposure. The exposure amount of an offbalance sheet securitization exposure that is not an eligible ABCP liquidity facility, a repo-style transaction, eligible margin loan, an OTC derivative contract (other than a credit derivative), or a derivative that is a cleared transaction (other than a credit derivative) is the notional amount of the exposure. The treatment for OTC credit derivatives is described in more detail below. For purposes of calculating the exposure amount of an off-balance sheet exposure to an ABCP securitization exposure, such as a liquidity facility, consistent with the proposed rule, the notional amount may be reduced to the maximum potential amount that the FDIC-supervised institution could be required to fund given the ABCP program’s current underlying assets (calculated without regard to the current credit quality of those assets). Thus, if PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 55435 $100 is the maximum amount that could be drawn given the current volume and current credit quality of the program’s assets, but the maximum potential draw against these same assets could increase to as much as $200 under some scenarios if their credit quality were to improve, then the exposure amount is $200. An ABCP program is defined as a program established primarily for the purpose of issuing commercial paper that is investment grade and backed by underlying exposures held in a securitization SPE. An eligible ABCP liquidity facility is defined as a liquidity facility supporting ABCP, in form or in substance, which is subject to an asset quality test at the time of draw that precludes funding against assets that are 90 days or more past due or in default. Notwithstanding these eligibility requirements, a liquidity facility is an eligible ABCP liquidity facility if the assets or exposures funded under the liquidity facility that do not meet the eligibility requirements are guaranteed by a sovereign that qualifies for a 20 percent risk weight or lower. Commenters, citing accounting changes that require certain ABCP securitization exposures to be consolidated on banking organizations balance sheets, asked the agencies to consider capping the amount of an offbalance sheet securitization exposure to the maximum potential amount that the banking organization could be required to fund given the securitization SPE’s current underlying assets. These commenters stated that the downward adjustment of the notional amount of a banking organization’s off-balance sheet securitization exposure to the amount of the available asset pool generally should be permitted regardless of whether the exposure to a customer SPE is made directly through a credit commitment by the banking organization to the SPE or indirectly through a funding commitment that the banking organization makes to an ABCP conduit. The FDIC believes that the requirement to hold risk-based capital against the full amount that may be drawn more accurately reflects the risks of potential draws under these exposures and have decided not to provide a separate provision for off-balance sheet exposures to customer-sponsored SPEs that are not ABCP conduits. Under the interim final rule, consistent with the proposal, the exposure amount of an eligible ABCP liquidity facility that is subject to the SSFA equals the notional amount of the exposure multiplied by a 100 percent CCF. The exposure amount of an eligible ABCP liquidity facility that is not subject to the SSFA is the notional E:\FR\FM\10SER2.SGM 10SER2 55436 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations amount of the exposure multiplied by a 50 percent CCF. The exposure amount of a securitization exposure that is a repo-style transaction, eligible margin loan, an OTC derivative contract (other than a purchased credit derivative), or derivative that is a cleared transaction (other than a purchased credit derivative) is the exposure amount of the transaction as calculated under section 324.34 or section 324.37 of the interim final rule, as applicable. emcdonald on DSK67QTVN1PROD with RULES2 b. Gains-on-Sale and Credit-Enhancing Interest-Only Strips Consistent with the proposal, under the interim final rule an FDICsupervised institution must deduct from common equity tier 1 capital any aftertax gain-on-sale resulting from a securitization and must apply a 1,250 percent risk weight to the portion of a CEIO that does not constitute an aftertax gain-on-sale. The FDIC believes this treatment is appropriate given historical supervisory concerns with the subjectivity involved in valuations of gains-on-sale and CEIOs. Furthermore, although the treatments for gains-onsale and CEIOs can increase an originating FDIC-supervised institution’s risk-based capital requirement following a securitization, the FDIC believes that such anomalies are rare where a securitization transfers significant credit risk from the originating FDIC-supervised institution to third parties. c. Exceptions Under the Securitization Framework Commenters stated concerns that the proposal would inhibit demand for private label securitization by making it more difficult for banking organizations, especially community banking organizations, to purchase private label mortgage-backed securities. Instead of implementing the SSFA and the grossup approach, commenters suggested allowing banking organizations to assign a 20 percent risk weight to securitization exposures that are backed by mortgage exposures that would be ‘‘qualified mortgages’’ under the Truth in Lending Act and implementing regulations issued by the CFPB.156 The FDIC believes that the proposed securitization approaches would be more appropriate in capturing the risks provided by structured transactions, including those backed by QM. The interim final rule does not provide an exclusion for such exposures. Under the interim final rule, consistent with the proposal, there are several exceptions to the general 156 78 FR 6408 (Jan. 30, 2013). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 provisions in the securitization framework that parallel the general riskbased capital rules. First, an FDICsupervised institution is required to assign a risk weight of at least 100 percent to an interest-only MBS. The FDIC believes that a minimum risk weight of 100 percent is prudent in light of the uncertainty implied by the substantial price volatility of these securities. Second, as required by federal statute, a special set of rules continues to apply to securitizations of small-business loans and leases on personal property transferred with retained contractual exposure by wellcapitalized depository institutions.157 Finally, if a securitization exposure is an OTC derivative contract or derivative contract that is a cleared transaction (other than a credit derivative) that has a first priority claim on the cash flows from the underlying exposures (notwithstanding amounts due under interest rate or currency derivative contracts, fees due, or other similar payments), an FDIC-supervised institution may choose to set the riskweighted asset amount of the exposure equal to the amount of the exposure. d. Overlapping Exposures Consistent with the proposal, the interim final rule includes provisions to limit the double counting of risks in situations involving overlapping securitization exposures. If an FDICsupervised institution has multiple securitization exposures that provide duplicative coverage to the underlying exposures of a securitization (such as when an FDIC-supervised institution provides a program-wide credit enhancement and multiple pool-specific liquidity facilities to an ABCP program), the FDIC-supervised institution is not required to hold duplicative risk-based capital against the overlapping position. Instead, the FDIC-supervised institution must apply to the overlapping position the applicable risk-based capital treatment under the securitization framework that results in the highest risk-based capital requirement. e. Servicer Cash Advances A traditional securitization typically employs a servicing banking organization that, on a day-to-day basis, 157 See 12 U.S.C. 1835. This provision places a cap on the risk-based capital requirement applicable to a well-capitalized depository institution that transfers small-business loans with recourse. The interim final rule does not expressly provide that the FDIC may permit adequatelycapitalized FDIC-supervised institutions to use the small business recourse rule on a case-by-case basis because the FDIC may make such a determination under the general reservation of authority in section 1 of the interim final rule. PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 collects principal, interest, and other payments from the underlying exposures of the securitization and forwards such payments to the securitization SPE or to investors in the securitization. Servicing banking organizations often provide a facility to the securitization under which the servicing banking organization may advance cash to ensure an uninterrupted flow of payments to investors in the securitization, including advances made to cover foreclosure costs or other expenses to facilitate the timely collection of the underlying exposures. These servicer cash advance facilities are securitization exposures. Consistent with the proposal, under the interim final rule an FDICsupervised institution must apply the SSFA or the gross-up approach, as described below, or a 1,250 percent risk weight to a servicer cash advance facility. The treatment of the undrawn portion of the facility depends on whether the facility is an eligible servicer cash advance facility. An eligible servicer cash advance facility is a servicer cash advance facility in which: (1) the servicer is entitled to full reimbursement of advances, except that a servicer may be obligated to make non-reimbursable advances for a particular underlying exposure if any such advance is contractually limited to an insignificant amount of the outstanding principal balance of that exposure; (2) the servicer’s right to reimbursement is senior in right of payment to all other claims on the cash flows from the underlying exposures of the securitization; and (3) the servicer has no legal obligation to, and does not make, advances to the securitization if the servicer concludes the advances are unlikely to be repaid. Under the proposal, a banking organization that is a servicer under an eligible servicer cash advance facility is not required to hold risk-based capital against potential future cash advanced payments that it may be required to provide under the contract governing the facility. A banking organization that provides a non-eligible servicer cash advance facility would determine its risk-based capital requirement for the notional amount of the undrawn portion of the facility in the same manner as the banking organization would determine its risk-based capital requirement for other off-balance sheet securitization exposures. The FDIC is clarifying the terminology in the interim final rule to specify that an FDIC-supervised institution that is a servicer under a non-eligible servicer cash advance facility must hold risk-based capital against the amount of all potential E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations future cash advance payments that it may be contractually required to provide during the subsequent 12month period under the contract governing the facility. emcdonald on DSK67QTVN1PROD with RULES2 f. Implicit Support Consistent with the proposed rule, the interim final rule requires an FDICsupervised institution that provides support to a securitization in excess of its predetermined contractual obligation (implicit support) to include in riskweighted assets all of the underlying exposures associated with the securitization as if the exposures had not been securitized, and deduct from common equity tier 1 capital any aftertax gain-on-sale resulting from the securitization.158 In addition, the FDICsupervised institution must disclose publicly (i) that it has provided implicit support to the securitization, and (ii) the risk-based capital impact to the FDICsupervised institution of providing such implicit support. The FDIC notes that under the reservations of authority set forth in the interim final rule, the FDIC also could require the FDIC-supervised institution to hold risk-based capital against all the underlying exposures associated with some or all the FDICsupervised institution’s other securitizations as if the underlying exposures had not been securitized, and to deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from such securitizations. 4. Simplified Supervisory Formula Approach The proposed rule incorporated the SSFA, a simplified version of the supervisory formula approach (SFA) in the advanced approaches rule, to assign risk weights to securitization exposures. Many of the commenters focused on the burden of implementing the SSFA given the complexity of the approach in relation to the proposed treatment of mortgages exposures. Commenters also stated concerns that implementation of the SSFA would generally restrict credit growth and create competitive equity concerns with other jurisdictions implementing ratings-based approaches. The FDIC acknowledges that there may be differences in capital requirements under the SSFA and the ratings-based approach in the Basel capital framework. As explained previously, the use of alternative standards of creditworthiness in FDIC regulations is consistent with section 939A of the 158 The interim final rule is consistent with longstanding guidance on the treatment of implicit support, entitled, ‘‘Interagency Guidance on Implicit Recourse in Asset Securitizations,’’ (May 23, 2002). See FIL–52–2002. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Dodd-Frank Act. Any alternative standard developed by the FDIC may not generate the same result as a ratingsbased capital framework under every circumstance. However, the FDIC, together with the other agencies, has designed the SSFA to result in generally comparable capital requirements to those that would be required under the Basel ratings-based approach without undue complexity. The FDIC will monitor implementation of the SSFA and, based on supervisory experience, consider what modifications, if any, may be necessary to improve the SSFA in the future. The FDIC has adopted the proposed SSFA largely as proposed, with a revision to the delinquency parameter (parameter W) that will increase the risk sensitivity of the approach and clarify the operation of the formula when the contractual terms of the exposures underlying a securitization permit borrowers to defer payments of principal and interest, as described below. To limit potential burden of implementing the SSFA, FDICsupervised institutions that are not subject to the market risk rule may also choose to use as an alternative the grossup approach described in section VIII.H.5 below, provided that they apply the gross-up approach to all of their securitization exposures. Similar to the SFA under the advanced approaches rule, the SSFA is a formula that starts with a baseline derived from the capital requirements that apply to all exposures underlying the securitization and then assigns risk weights based on the subordination level of an exposure. The FDIC designed the SSFA to apply relatively higher capital requirements to the more risky junior tranches of a securitization that are the first to absorb losses, and relatively lower requirements to the most senior exposures. The SSFA applies a 1,250 percent risk weight to securitization exposures that absorb losses up to the amount of capital that is required for the underlying exposures under subpart D of the interim final rule had those exposures been held directly by an FDIC-supervised institution. In addition, the FDIC is implementing a supervisory risk-weight floor or minimum risk weight for a given securitization of 20 percent. While some commenters requested that the floor be lowered for certain low-risk securitization exposures, the FDIC believes that a 20 percent floor is prudent given the performance of many securitization exposures during the recent crisis. PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 55437 At the inception of a securitization, the SSFA requires more capital on a transaction-wide basis than would be required if the underlying assets had not been securitized. That is, if the FDICsupervised institution held every tranche of a securitization, its overall capital requirement would be greater than if the FDIC-supervised institution held the underlying assets in portfolio. The FDIC believes this overall outcome is important in reducing the likelihood of regulatory capital arbitrage through securitizations. The proposed rule required banking organizations to use data to assign the SSFA parameters that are not more than 91 days old. Commenters requested that the data requirement be amended to account for securitizations of underlying assets with longer payment periods, such as transactions featuring annual or biannual payments. In response, the FDIC amended this requirement in the interim final rule so that data used to determine SSFA parameters must be the most currently available data. However, for exposures that feature payments on a monthly or quarterly basis, the interim final rule requires the data to be no more than 91 calendar days old. Under the interim final rule, to use the SSFA, an FDIC-supervised institution must obtain or determine the weighted-average risk weight of the underlying exposures (KG), as well as the attachment and detachment points for the FDIC-supervised institution’s position within the securitization structure. ‘‘KG,’’ is calculated using the risk-weighted asset amounts in the standardized approach and is expressed as a decimal value between zero and 1 (that is, an average risk weight of 100 percent means that KG would equal 0.08). The FDIC-supervised institution may recognize the relative seniority of the exposure, as well as all cash funded enhancements, in determining attachment and detachment points. In addition, an FDIC-supervised institution must be able to determine the credit performance of the underlying exposures. The commenters expressed concerns that certain types of data that would be required to calculate KG may not be readily available, particularly data necessary to calculate the weightedaverage capital requirement of residential mortgages according to the proposed rule’s standardized approach for residential mortgages. Some commenters therefore asked to be able to use the risk weights under the general risk-based capital rules for residential mortgages in the calculation of KG. Commenters also requested the use of alternative estimates or conservative E:\FR\FM\10SER2.SGM 10SER2 55438 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations loans with deferral of principal or interest for (1) federally-guaranteed student loans, in accordance with the terms of those programs, or (2) for consumer loans, including nonfederally-guaranteed student loans, provided that such payments are deferred pursuant to provisions included in the contract at the time funds are disbursed that provide for period(s) of deferral that are not initiated based on changes in the creditworthiness of the borrower. The FDIC believes that the SSFA appropriately reflects partial government guarantees because such guarantees are reflected in KG in the same manner that they are reflected in capital requirements for loans held on balance sheet. For clarity, the FDIC has eliminated the term ‘‘securitized pool’’ from the interim final rule. The calculation of parameter W includes all underlying exposures of a securitization transaction. The FDIC believes that, with the parameter W calibration set equal to 0.5, the overall capital requirement produced by the SSFA is sufficiently responsive and prudent to ensure sufficient capital for pools that demonstrate credit weakness. The entire specification of the SSFA in the interim final rule is as follows: KSSFA is the risk-based capital requirement for the securitization exposure and is a function of three variables, labeled a, u, and l. The constant e is the base of the natural logarithms (which equals 2.71828). The variables a, u, and l have the following definitions: The values of A and D denote the attachment and detachment points, respectively, for the tranche. Specifically, A is the attachment point for the tranche that contains the securitization exposure and represents the threshold at which credit losses will first be allocated to the exposure. This input is the ratio, as expressed as a decimal value between zero and one, of the dollar amount of the securitization exposures that are subordinated to the tranche that contains the securitization exposure held by the FDIC-supervised institution to the current dollar amount of all underlying exposures. Commenters requested that the agencies recognize unfunded forms of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.006</GPH> To make the SSFA more risk-sensitive and forward-looking, the parameter KG is modified based on delinquencies among the underlying assets of the securitization. The resulting adjusted parameter is labeled KA. KA is set equal to the weighted average of the KG value and a fixed parameter equal to 0.5. KA ¥ C1 ¥ W) · KG + (0.5 · W) Under the proposal, the W parameter equaled the ratio of the sum of the dollar amounts of any underlying exposures of the securitization that are 90 days or more past due, subject to a bankruptcy or insolvency proceeding, in the process of foreclosure, held as real estate owned, in default, or have contractually deferred interest for 90 days or more divided by the ending balance, measured in dollars, of the underlying exposures. Commenters expressed concern that the proposal would require additional capital for payment deferrals that are unrelated to the creditworthiness of the borrower, and encouraged the agencies to amend the proposal so that the numerator of the W parameter would not include deferrals of interest that are unrelated to the performance of the loan or the borrower, as is the case for certain federally-guaranteed student loans or certain consumer credit facilities that allow the borrower to defer principal and interest payments for the first 12 months following the purchase of a product or service. Some commenters also asserted that the proposed SSFA would not accurately calibrate capital requirements for those student loans with a partial government guarantee. Another commenter also asked for clarification on which exposures are in the securitized pool. In response to these concerns, the FDIC has decided to explicitly exclude from the numerator of parameter W ER10SE13.005</GPH> emcdonald on DSK67QTVN1PROD with RULES2 proxy data to implement the SSFA when a parameter is not readily available, especially for securitizations of mortgage exposures. As previously discussed, the FDIC is retaining in the interim final rule the existing mortgage treatment under the general risk-based capital rules. Accordingly, the FDIC believes that FDIC-supervised institutions should generally have access to the data necessary to calculate the SSFA parameters for mortgage exposures. Commenters characterized the KG parameter as not sufficiently risk sensitive and asked the agencies to provide more recognition under the SSFA with respect to the credit quality of the underlying assets. Some commenters observed that the SSFA did not take into account sequential pay structures. As a result, some commenters requested that banking organizations be allowed to implement cash-flow models to increase risk sensitivity, especially given that the SSFA does not recognize the various types of cash-flow waterfalls for different transactions. In developing the interim final rule, the FDIC considered the trade-offs between added risk sensitivity, increased complexity that would result from reliance on cash-flow models, and consistency with standardized approach risk weights. The FDIC believes it is important to calibrate capital requirements under the securitization framework in a manner that is consistent with the calibration used for the underlying assets of the securitization to reduce complexity and best align capital requirements under the securitization framework with requirements for credit exposures under the standardized approach. As a result, the FDIC has decided to finalize the KG parameter as proposed. Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55439 Parameter D is the detachment point for the tranche that contains the securitization exposure and represents the threshold at which credit losses allocated to the securitization exposure would result in a total loss of principal. This input, which is a decimal value between zero and one, equals the value of parameter A plus the ratio of the current dollar amount of the securitization exposures that are pari passu with the FDIC-supervised institution’s securitization exposure (that is, have equal seniority with respect to credit risk) to the current dollar amount of all underlying exposures. The SSFA specification is completed by the constant term p, which is set equal to 0.5 for securitization exposures that are not resecuritizations, or 1.5 for resecuritization exposures, and the variable KA, which is described above. When parameter D for a securitization exposure is less than or equal to KA, the exposure must be assigned a risk weight of 1,250 percent. When A for a securitization exposure is greater than or equal to KA, the risk weight of the exposure, expressed as a percent, would equal KSSFA times 1,250. When A is less than KA and D is greater than KA, the applicable risk weight is a weighted average of 1,250 percent and 1,250 percent times KSSFA. As suggested by commenters, in order to make the description of the SSFA formula clearer, the term ‘‘l’’ has been redefined to be the maximum of 0 and A-KA, instead of the proposed A-KA. The risk weight would be determined according to the following formula: For resecuritizations, FDIC-supervised institutions must use the SSFA to measure the underlying securitization exposure’s contribution to KG. For example, consider a hypothetical securitization tranche that has an attachment point at 0.06 and a detachment point at 0.07. Then assume that 90 percent of the underlying pool of assets were mortgage loans that qualified for a 50 percent risk weight and that the remaining 10 percent of the pool was a tranche of a separate securitization (where the underlying exposures consisted of mortgages that also qualified for a 50 percent weight). An exposure to this hypothetical tranche would meet the definition of a resecuritization exposure. Next, assume that the attachment point A of the underlying securitization that is the 10 percent share of the pool is 0.06 and the detachment point D is 0.08. Finally, assume that none of the underlying mortgage exposures of either the hypothetical tranche or the underlying securitization exposure meet the interim final rule definition of ‘‘delinquent.’’ The value of KG for the resecuritization exposure equals the weighted average of the two distinct KG values. For the mortgages that qualify for the 50 percent risk weight and represent 90 percent of the resecuritization, KG equals 0.04 (that is, 50 percent of the 8 percent risk-based capital standard). KG,re-securitization = (0.9 · 0.04) + (0.1 · KG,securitization) To calculate the value of KG,securitization, an FDIC-supervised institution would use the attachment and detachment points of 0.06 and 0.08, respectively. Applying those input parameters to the SSFA (together with p = 0.5 and KG = 0.04) results in a KG,securitization equal to 0.2325. Substituting this value into the equation yields: KG,re-securitization = (0.9 · 0.04) + (0.1 · 0.2325) = 0.05925 This value of 0.05925 for KG,re-securitization, would then be used in the calculation of the risk-based capital requirement for the tranche of the resecuritization (where A = 0.06, B = 0.07, and p = 1.5). The result is a risk weight of 1,172 percent for the tranche that runs from 0.06 to 0.07. Given that the attachment point is very close to the value of KG,re-securitization the capital charge is nearly equal to the maximum risk weight of 1,250 percent. To apply the securitization framework to a single tranched exposure that has been re-tranched, such as some ReREMICs, an FDIC-supervised institution must apply the SSFA or gross-up approach to the retranched exposure as if it were still part of the structure of the original securitization transaction. Therefore, an FDIC-supervised institution implementing the SSFA or the gross-up approach would calculate parameters for those approaches that would treat the retranched exposure as if it were still embedded in the original structure of the transaction while still recognizing any added credit enhancement provided by retranching. For example, under the SSFA an FDICsupervised institution would calculate the approach using hypothetical attachment and detachment points that reflect the seniority of the retranched exposure within the original deal structure, as well as any additional credit enhancement provided by retranching of the exposure. Parameters that depend on pool-level characteristics, such as the W parameter under the SSFA, would be calculated based on the characteristics of the total underlying exposures of the initial securitization transaction, not just the retranched exposure. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 5. Gross-Up Approach Under the interim final rule, consistent with the proposal, FDICsupervised institutions that are not subject to the market risk rule may assign risk-weighted asset amounts to securitization exposures by implementing the gross-up approach described in section 43 of the interim final rule, which is similar to an existing approach provided under the general risk-based capital rules. If the FDICsupervised institution chooses to apply the gross-up approach, it is required to apply this approach to all of its securitization exposures, except as otherwise provided for certain securitization exposures under sections 324.44 and 324.45 of the interim final rule. The gross-up approach assigns riskweighted asset amounts based on the full amount of the credit-enhanced assets for which the FDIC-supervised institution directly or indirectly assumes credit risk. To calculate riskweighted assets under the gross-up E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.007</GPH> emcdonald on DSK67QTVN1PROD with RULES2 credit support, such as excess spread, in the calculation of A. Commenters also stated that where the carrying value of an exposure is less than its par value, the discount to par for a particular exposure should be recognized as additional credit protection. However, the FDIC believes it is prudent to recognize only funded credit enhancements, such as overcollateralization or reserve accounts funded by accumulated cash flows, in the calculation of parameter A. Discounts and write-downs can be related to credit risk or due to other factors such as interest rate movements or liquidity. As a result, the FDIC does not believe that discounts or writedowns should be factored into the SSFA as credit enhancement. 55440 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 approach, an FDIC-supervised institution determines four inputs: the pro rata share, the exposure amount, the enhanced amount, and the applicable risk weight. The pro rata share is the par value of the FDIC-supervised institution’s exposure as a percentage of the par value of the tranche in which the securitization exposure resides. The enhanced amount is the par value of all the tranches that are more senior to the tranche in which the exposure resides. The applicable risk weight is the weighted-average risk weight of the underlying exposures in the securitization as calculated under the standardized approach. Under the gross-up approach, an FDIC-supervised institution is required to calculate the credit equivalent amount, which equals the sum of (1) the exposure of the FDIC-supervised institution’s securitization exposure and (2) the pro rata share multiplied by the enhanced amount. To calculate riskweighted assets for a securitization exposure under the gross-up approach, an FDIC-supervised institution is required to assign the applicable risk weight to the gross-up credit equivalent amount. As noted above, in all cases, the minimum risk weight for securitization exposures is 20 percent. As discussed above, the FDIC recognizes that different capital requirements are likely to result from the application of the gross-up approach as compared to the SSFA. However, the FDIC believes allowing smaller, less complex FDIC-supervised institutions not subject to the market risk rule to use the gross up approach (consistent with past practice under the existing general risk-based capital rules) is appropriate and should reduce operational burden for many FDIC-supervised institutions. 6. Alternative Treatments for Certain Types of Securitization Exposures Under the proposal, a banking organization generally would assign a 1,250 percent risk weight to any securitization exposure to which the banking organization does not apply the SSFA or the gross-up approach. However, the proposal provided alternative treatments for certain types of securitization exposures described below, provided that the banking organization knows the composition of the underlying exposures at all times. a. Eligible Asset-Backed Commercial Paper Liquidity Facilities Under the interim final rule, consistent with the proposal and the Basel capital framework, an FDICsupervised institution is permitted to determine the risk-weighted asset VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 amount of an eligible ABCP liquidity facility by multiplying the exposure amount by the highest risk weight applicable to any of the individual underlying exposures covered by the facility. b. A Securitization Exposure in a Second-Loss Position or Better to an Asset-Backed Commercial Paper Program Under the interim final rule and consistent with the proposal, an FDICsupervised institution may determine the risk-weighted asset amount of a securitization exposure that is in a second-loss position or better to an ABCP program by multiplying the exposure amount by the higher of 100 percent and the highest risk weight applicable to any of the individual underlying exposures of the ABCP program, provided the exposure meets the following criteria: (1) The exposure is not an eligible ABCP liquidity facility; (2) The exposure is economically in a second-loss position or better, and the first-loss position provides significant credit protection to the second-loss position; (3) The exposure qualifies as investment grade; and (4) The FDIC-supervised institution holding the exposure does not retain or provide protection for the first-loss position. The FDIC believes that this approach, which is consistent with the Basel capital framework, appropriately and conservatively assesses the credit risk of non-first-loss exposures to ABCP programs. The FDIC is adopting this aspect of the proposal, without change, for purposes of the interim final rule. 7. Credit Risk Mitigation for Securitization Exposures Under the interim final rule, and consistent with the proposal, the treatment of credit risk mitigation for securitization exposures would differ slightly from the treatment for other exposures. To recognize the risk mitigating effects of financial collateral or an eligible guarantee or an eligible credit derivative from an eligible guarantor, an FDIC-supervised institution that purchases credit protection uses the approaches for collateralized transactions under section 324.37 of the interim final rule or the substitution treatment for guarantees and credit derivatives described in section 3324.6 of the interim final rule. In cases of maturity or currency mismatches, or, if applicable, lack of a restructuring event trigger, the FDICsupervised institution must make any PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 applicable adjustments to the protection amount of an eligible guarantee or credit derivative as required by section 324.36 for any hedged securitization exposure. In addition, for synthetic securitizations, when an eligible guarantee or eligible credit derivative covers multiple hedged exposures that have different residual maturities, the FDIC-supervised institution is required to use the longest residual maturity of any of the hedged exposures as the residual maturity of all the hedged exposures. In the interim final rule, the FDIC is clarifying that an FDICsupervised institution is not required to compute a counterparty credit risk capital requirement for the credit derivative provided that this treatment is applied consistently for all of its OTC credit derivatives. However, an FDICsupervised institution must calculate counterparty credit risk if the OTC credit derivative is a covered position under the market risk rule. Consistent with the proposal, an FDIC-supervised institution that purchases an OTC credit derivative (other than an nth-to-default credit derivative) that is recognized as a credit risk mitigant for a securitization exposure that is not a covered position under the market risk rule is not required to compute a separate counterparty credit risk capital requirement provided that the FDICsupervised institution does so consistently for all such credit derivatives. The FDIC-supervised institution must either include all or exclude all such credit derivatives that are subject to a qualifying master netting agreement from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. If an FDIC-supervised institution cannot, or chooses not to, recognize a credit derivative that is a securitization exposure as a credit risk mitigant, the FDIC-supervised institution must determine the exposure amount of the credit derivative under the treatment for OTC derivatives in section 34. In the interim final rule, the FDIC is clarifying that if the FDIC-supervised institution purchases the credit protection from a counterparty that is a securitization, the FDIC-supervised institution must determine the risk weight for counterparty credit risk according to the securitization framework. If the FDICsupervised institution purchases credit protection from a counterparty that is not a securitization, the FDICsupervised institution must determine the risk weight for counterparty credit risk according to general risk weights E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 under section 32. An FDIC-supervised institution that provides protection in the form of a guarantee or credit derivative (other than an nth-to-default credit derivative) that covers the full amount or a pro rata share of a securitization exposure’s principal and interest must risk weight the guarantee or credit derivative as if it holds the portion of the reference exposure covered by the guarantee or credit derivative. 8. Nth-to-Default Credit Derivatives Under the interim final rule and consistent with the proposal, the capital requirement for credit protection provided through an nth-to-default credit derivative is determined either by using the SSFA, or applying a 1,250 percent risk weight. An FDIC-supervised institution providing credit protection must determine its exposure to an nth-todefault credit derivative as the largest notional amount of all the underlying exposures. When applying the SSFA, the attachment point (parameter A) is the ratio of the sum of the notional amounts of all underlying exposures that are subordinated to the FDICsupervised institution’s exposure to the total notional amount of all underlying exposures. In the case of a first-todefault credit derivative, there are no underlying exposures that are subordinated to the FDIC-supervised institution’s exposure. In the case of a second-or-subsequent-to default credit derivative, the smallest (n-1) underlying exposure(s) are subordinated to the FDIC-supervised institution’s exposure. Under the SSFA, the detachment point (parameter D) is the sum of the attachment point and the ratio of the notional amount of the FDIC-supervised institution’s exposure to the total notional amount of the underlying exposures. An FDIC-supervised institution that does not use the SSFA to calculate a risk weight for an nth-todefault credit derivative would assign a risk weight of 1,250 percent to the exposure. For protection purchased through a first-to-default derivative, an FDICsupervised institution that obtains credit protection on a group of underlying exposures through a first-todefault credit derivative that meets the rules of recognition for guarantees and credit derivatives under section 324.36(b) of the interim final rule must determine its risk-based capital requirement for the underlying exposures as if the FDIC-supervised institution synthetically securitized the underlying exposure with the smallest risk-weighted asset amount and had VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 obtained no credit risk mitigant on the other underlying exposures. An FDICsupervised institution must calculate a risk-based capital requirement for counterparty credit risk according to section 324.34 of the interim final rule for a first-to-default credit derivative that does not meet the rules of recognition of section 324.36(b). For second-or-subsequent-to-default credit derivatives, an FDIC-supervised institution that obtains credit protection on a group of underlying exposures through a nth-to-default credit derivative that meets the rules of recognition of section 324.36(b) of the interim final rule (other than a first-to-default credit derivative) may recognize the credit risk mitigation benefits of the derivative only if the FDIC-supervised institution also has obtained credit protection on the same underlying exposures in the form of first-through-(n-1)-to-default credit derivatives; or if n-1 of the underlying exposures have already defaulted. If an FDIC-supervised institution satisfies these requirements, the FDIC-supervised institution determines its risk-based capital requirement for the underlying exposures as if the FDIC-supervised institution had only synthetically securitized the underlying exposure with the nth smallest risk-weighted asset amount and had obtained no credit risk mitigant on the other underlying exposures. For a nth-to-default credit derivative that does not meet the rules of recognition of section 324.36(b), an FDIC-supervised institution must calculate a risk-based capital requirement for counterparty credit risk according to the treatment of OTC derivatives under section 324.34 of the interim final rule. The FDIC is adopting this aspect of the proposal without change for purposes of the interim final rule. IX. Equity Exposures The proposal significantly revised the general risk-based capital rules’ treatment for equity exposures. To improve risk sensitivity, the interim final rule generally follows the same approach to equity exposures as the proposal, while providing clarification on investments in a separate account as detailed below. In particular, the interim final rule requires an FDICsupervised institution to apply the SRWA for equity exposures that are not exposures to an investment fund and apply certain look-through approaches to assign risk-weighted asset amounts to equity exposures to an investment fund. These approaches are discussed in greater detail below. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 55441 A. Definition of Equity Exposure and Exposure Measurement The FDIC is adopting the proposed definition of equity exposures, without change, for purposes of the interim final rule.159 Under the interim final rule, an FDIC-supervised institution is required to determine the adjusted carrying value for each equity exposure based on the approaches described below. For the onbalance sheet component of an equity exposure, other than an equity exposure that is classified as AFS where the FDIC-supervised institution has made an AOCI opt-out election under section 324.22(b)(2) of the interim final rule, the adjusted carrying value is an FDICsupervised institution’s carrying value of the exposure. For the on-balance sheet component of an equity exposure that is classified as AFS where the FDIC-supervised institution has made an AOCI opt-out election under section 324.22(b)(2) of the interim final rule, the adjusted carrying value of the exposure is the FDIC-supervised institution’s carrying value of the exposure less any net gains on the exposure that are reflected in the carrying value but excluded from the FDIC-supervised institution’s regulatory capital components. For a commitment to acquire an equity exposure that is unconditional, the adjusted carrying value is the effective notional principal amount of the exposure multiplied by a 100 percent conversion factor. For a commitment to acquire an equity exposure that is conditional, the adjusted carrying value is the effective notional principal amount of the commitment multiplied by (1) a 20 percent conversion factor, for a commitment with an original maturity of one year or less or (2) a 50 percent conversion factor, for a commitment with an original maturity of over one year. For the off-balance sheet component of an equity exposure that is not an equity commitment, the adjusted carrying value is the effective notional principal amount of the exposure, the size of which is equivalent to a hypothetical on-balance sheet position in the underlying equity instrument that would evidence the same change in fair value (measured in dollars) for a given small change in the price of the underlying equity instrument, minus the adjusted carrying value of the on159 See the definition of ‘‘equity exposure’’ in section 324.2 of the interim final rule. However, as described above in section VIII.A of this preamble, the FDIC has adjusted the definition of ‘‘exposure amount’’ in line with certain requirements necessary for FDIC-supervised institutions that make an AOCI opt-out election. E:\FR\FM\10SER2.SGM 10SER2 55442 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations balance sheet component of the exposure. The FDIC included the concept of the effective notional principal amount of the off-balance sheet portion of an equity exposure to provide a uniform method for FDIC-supervised institutions to measure the on-balance sheet equivalent of an off-balance sheet exposure. For example, if the value of a derivative contract referencing the common stock of company X changes the same amount as the value of 150 shares of common stock of company X, for a small change (for example, 1.0 percent) in the value of the common stock of company X, the effective notional principal amount of the derivative contract is the current value of 150 shares of common stock of company X, regardless of the number of shares the derivative contract references. The adjusted carrying value of the off-balance sheet component of the derivative is the current value of 150 shares of common stock of company X minus the adjusted carrying value of any on-balance sheet amount associated with the derivative. B. Equity Exposure Risk Weights The proposal set forth a SRWA for equity exposures, which the FDIC has adopted without change in the interim final rule. Therefore, under the interim final rule, an FDIC-supervised institution determines the risk-weighted asset amount for each equity exposure, other than an equity exposure to an investment fund, by multiplying the adjusted carrying value of the equity exposure, or the effective portion and ineffective portion of a hedge pair as described below, by the lowest applicable risk weight in section 324.52 of the interim final rule. An FDICsupervised institution determines the risk-weighted asset amount for an equity exposure to an investment fund under section 324.53 of the interim final rule. An FDIC-supervised institution sums risk-weighted asset amounts for all of its equity exposures to calculate its aggregate risk-weighted asset amount for its equity exposures. Some commenters asserted that mutual banking organizations, which are more highly exposed to equity exposures than traditional depository institutions, should be permitted to assign a 100 percent risk weight to their equity exposures rather than the proposed 300 percent risk weight for publicly-traded equity exposures or 400 percent risk weight for non-publicly traded equity exposures. Some commenters also argued that a banking organization’s equity investment in a banker’s bank should get special treatment, for instance, exemption from the 400 percent risk weight or deduction as an investment in the capital of an unconsolidated financial institution. The FDIC has decided to retain the proposed risk weights in the interim final rule because it does not believe there is sufficient justification for a lower risk weight solely based on the nature of the institution (for example, mutual banking organization) holding the exposure. In addition, the FDIC believes that a 100 percent risk weight does not reflect the inherent risk for equity exposures that fall under the proposed 300 percent and 400 percent risk-weight categories or that are subject to deduction as investments in unconsolidated financial institutions. The FDIC has agreed to finalize the SRWA risk weights as proposed, which are summarized below in Table 24. TABLE 24—SIMPLE RISK-WEIGHT APPROACH Risk weight (in percent) Equity exposure 0 ........................ An equity exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, an MDB, and any other entity whose credit exposures receive a zero percent risk weight under section 324.32 of the interim final rule. An equity exposure to a PSE, Federal Home Loan Bank or Farmer Mac. • Community development equity exposures.160 • The effective portion of a hedge pair. • Non-significant equity exposures to the extent that the aggregate adjusted carrying value of the exposures does not exceed 10 percent of tier 1 capital plus tier 2 capital. A significant investment in the capital of an unconsolidated financial institution in the form of common stock that is not deducted under section 324.22 of the interim final rule. A publicly-traded equity exposure (other than an equity exposure that receives a 600 percent risk weight and including the ineffective portion of a hedge pair). An equity exposure that is not publicly-traded (other than an equity exposure that receives a 600 percent risk weight). An equity exposure to an investment firm that (i) would meet the definition of a traditional securitization were it not for the FDIC’s application of paragraph (8) of that definition and (ii) has greater than immaterial leverage. 20 ...................... 100 .................... 250 .................... 300 .................... emcdonald on DSK67QTVN1PROD with RULES2 400 .................... 600 .................... 160 The interim final rule generally defines these exposures as exposures that qualify as community development investments under 12 U.S.C. 24 (Eleventh), excluding equity exposures to an unconsolidated small business investment company and equity exposures held through a consolidated small business investment company described in section 302 of the Small Business Investment Act of 1958 (15 U.S.C. 682). Under the proposal, a savings association’s community development equity exposure investments was defined to mean an equity exposure that are designed primarily to promote community welfare, including the welfare of low- and moderate-income communities or families, such as by providing services or jobs, and excluding equity exposures to an unconsolidated small business investment company and equity VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Consistent with the proposal, the interim final rule defines publicly traded as traded on: (1) any exchange registered with the SEC as a national securities exchange under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f); or (2) any non-U.S.-based exposures held through a consolidated small business investment company described in section 302 of the Small Business Investment Act of 1958 (15 U.S.C. 682). The FDIC has determined that a separate definition for a savings association’s community development equity exposure is not necessary and, therefore, the interim final rule applies one definition of community development equity exposure to all types of covered FDICsupervised institutions. PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 securities exchange that is registered with, or approved by, a national securities regulatory authority and that provides a liquid, two-way market for the instrument in question. A two-way market refers to a market where there are independent bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined within one day and settled at that price within a relatively short time frame conforming to trade custom. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 C. Non-Significant Equity Exposures Under the interim final rule, and as proposed, an FDIC-supervised institution may apply a 100 percent risk weight to certain equity exposures deemed non-significant. Non-significant equity exposures means an equity exposure to the extent that the aggregate adjusted carrying value of the exposures does not exceed 10 percent of the FDICsupervised institution’s total capital.161 To compute the aggregate adjusted carrying value of an FDIC-supervised institution’s equity exposures for determining their non-significance, the FDIC-supervised institution may exclude (1) equity exposures that receive less than a 300 percent risk weight under the SRWA (other than equity exposures determined to be nonsignificant); (2) the equity exposure in a hedge pair with the smaller adjusted carrying value; and (3) a proportion of each equity exposure to an investment fund equal to the proportion of the assets of the investment fund that are not equity exposures. If an FDICsupervised institution does not know the actual holdings of the investment fund, the FDIC-supervised institution may calculate the proportion of the assets of the fund that are not equity exposures based on the terms of the prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. If the sum of the investment limits for all exposure classes within the fund exceeds 100 percent, the FDIC-supervised institution must assume that the investment fund invests to the maximum extent possible in equity exposures. To determine which of an FDICsupervised institution’s equity exposures qualify for a 100 percent risk weight based on non-significance, the FDIC-supervised institution first must include equity exposures to unconsolidated small-business investment companies, or those held through consolidated small-business investment companies described in section 302 of the Small Business Investment Act of 1958. Next, it must include publicly-traded equity exposures (including those held indirectly through investment funds), and then it must include non-publiclytraded equity exposures (including those held indirectly through investment funds).162 161 The definition excludes exposures to an investment firm that (1) meet the definition of traditional securitization were it not for the primary Federal regulator’s application of paragraph (8) of the definition of a traditional securitization and (2) has greater than immaterial leverage. 162 See 15 U.S.C. 682. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 One commenter proposed that certain exposures, including those to smallbusiness investment companies, should not be subject to the 10 percent capital limitation for non-significant equity exposures and should receive a 100 percent risk weight, consistent with the treatment of community development investments. The FDIC reflected upon this comment and determined to retain the proposed 10 percent limit on an FDIC-supervised institution’s total capital in the interim final rule given the inherent credit and concentration risks associated with these exposures. D. Hedged Transactions Under the proposal, to determine riskweighted assets under the SRWA, a banking organization could identify hedge pairs, which would be defined as two equity exposures that form an effective hedge, as long as each equity exposure is publicly traded or has a return that is primarily based on a publicly traded equity exposure. A banking organization would risk-weight only the effective and ineffective portions of a hedge pair rather than the entire adjusted carrying value of each exposure that makes up the pair. A few commenters requested that non-publicly traded equities be recognized in a hedged transaction under the rule. Equities that are not publicly traded are subject to considerable valuation uncertainty due to a lack of transparency and are generally far less liquid than publicly traded equities. The FDIC has therefore determined that given the potential increased risk associated with equities that are not publicly traded, recognition of these instruments as hedges under the rule is not appropriate. One commenter indicated that the test of hedge effectiveness used in the calculation of publicly traded equities should be more risk sensitive in evaluating all components of the transaction to better determine the appropriate risk weight. The examples the commenter highlighted indicated dissatisfaction with the assignment of a 100 percent risk weight to the effective portion of all hedge pairs. As described further below, the proposed rule contained three methodologies for identifying the measure of effectiveness of an equity hedge relationship, methodologies which recognize less-than-perfect hedges. The proposal assigns a 100 percent risk weight to the effective portion of a hedge pair because some hedge pairs involve residual risks. In developing the standardized approach the agencies sought to balance complexity and risk sensitivity, which limits the degree of granularity in hedge PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 55443 recognition. On balance, the FDIC believes that it is more reflective of an FDIC-supervised institutions risk profile to recognize a broader range of hedge pairs and assign all hedge pairs a 100 percent risk weight than to recognize only perfect hedges and assign a lower risk weight. Accordingly, the FDIC is finalizing the proposed treatment without change. Under the interim final rule, two equity exposures form an effective hedge if: the exposures either have the same remaining maturity or each has a remaining maturity of at least three months; the hedge relationship is formally documented in a prospective manner (that is, before the FDICsupervised institution acquires at least one of the equity exposures); the documentation specifies the measure of effectiveness (E) the FDIC-supervised institution uses for the hedge relationship throughout the life of the transaction; and the hedge relationship has an E greater than or equal to 0.8. An FDIC-supervised institution measures E at least quarterly and uses one of three measures of E described in the next section: the dollar-offset method, the variability-reduction method, or the regression method. It is possible that only part of an FDIC-supervised institution’s exposure to a particular equity instrument is part of a hedge pair. For example, assume an FDIC-supervised institution has equity exposure A with a $300 adjusted carrying value and chooses to hedge a portion of that exposure with equity exposure B with an adjusted carrying value of $100. Also assume that the combination of equity exposure B and $100 of the adjusted carrying value of equity exposure A form an effective hedge with an E of 0.8. In this situation, the FDIC-supervised institution treats $100 of equity exposure A and $100 of equity exposure B as a hedge pair, and the remaining $200 of its equity exposure A as a separate, stand-alone equity position. The effective portion of a hedge pair is calculated as E multiplied by the greater of the adjusted carrying values of the equity exposures forming the hedge pair. The ineffective portion of a hedge pair is calculated as (1–E) multiplied by the greater of the adjusted carrying values of the equity exposures forming the hedge pair. In the above example, the effective portion of the hedge pair is 0.8 × $100 = $80, and the ineffective portion of the hedge pair is (1¥0.8) × $100 = $20. E. Measures of Hedge Effectiveness As stated above, an FDIC-supervised institution could determine effectiveness using any one of three E:\FR\FM\10SER2.SGM 10SER2 55444 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations implying that the values of the two equity exposures move in the same direction, the hedge is not effective and E equals 0. If RVC is negative and greater than or equal to ¥1 (that is, between zero and ¥1), then E equals the absolute value of RVC. If RVC is negative and less than ¥1, then E equals 2 plus RVC. The variability-reduction method of measuring effectiveness compares changes in the value of the combined position of the two equity exposures in the hedge pair (labeled X in the equation below) to changes in the value of one exposure as though that one exposure were not hedged (labeled A). This measure of E expresses the timeseries variability in X as a proportion of the variability of A. As the variability described by the numerator becomes small relative to the variability described by the denominator, the measure of effectiveness improves, but is bounded from above by a value of one. E is computed as: The value of t ranges from zero to T, where T is the length of the observation period for the values of A and B, and is comprised of shorter values each labeled t. The regression method of measuring effectiveness is based on a regression in which the change in value of one exposure in a hedge pair is the dependent variable and the change in value of the other exposure in the hedge pair is the independent variable. E equals the coefficient of determination of this regression, which is the proportion of the variation in the dependent variable explained by variation in the independent variable. However, if the estimated regression coefficient is positive, then the value of E is zero. Accordingly, E is higher when the relationship between the values of the two exposures is closer. treatment for these exposures is commensurate with the risk. Thus, the risk-based capital requirement for equity exposures to investment funds that hold only low-risk assets would be relatively low, whereas high-risk exposures held through investment funds would be subject to a higher capital requirement. The interim final rule implements these three approaches as proposed and clarifies that the risk-weight for any equity exposure to an investment fund must be no less than 20 percent. In addition, the interim final rule clarifies, generally consistent with prior agency guidance, that an FDICsupervised institution must treat an investment in a separate account, such as bank-owned life insurance, as if it were an equity exposure to an investment fund.163 An FDICsupervised institution must use one of the look-through approaches provided in section 53 and, if applicable, section 154 of the interim final rule to determine the risk-weighted asset amount for such investments. An FDICsupervised institution that purchases stable value protection on its investment in a separate account must treat the portion of the carrying value of its investment in the separate account attributable to the stable value protection as an exposure to the provider of the protection and the remaining portion as an equity exposure to an investment fund. Stable value protection means a contract where the provider of the contract pays to the policy owner of the separate account an amount equal to the shortfall between the fair value and cost basis of the separate account when the policy owner of the separate account surrenders the policy. It also includes a contract where the provider of the contract pays to the beneficiary an amount equal to the shortfall between the fair value and book value of a specified portfolio of assets. An FDIC-supervised institution that provides stable value protection, such as through a stable value wrap that has provisions and conditions that minimize the wrap’s exposure to credit risk of the underlying assets in the fund, must treat the exposure as if it were an equity derivative on an investment fund and determine the adjusted carrying value of the exposure as the sum of the adjusted carrying values of any onbalance sheet asset component determined according to section 324.51(b)(1), and the off-balance sheet component determined according to section 324.51(b)(3). That is, the adjusted carrying value is the effective notional principal amount of the exposure, the size of which is equivalent to a hypothetical on-balance sheet position in the underlying equity instrument that would evidence the emcdonald on DSK67QTVN1PROD with RULES2 F. Equity Exposures to Investment Funds Under the general risk-based capital rules, exposures to investments funds are captured through one of two methods. These methods are similar to the alternative modified look-through approach and the simple modified lookthrough approach described below. The proposal included an additional option, referred to in the NPR as the full lookthrough approach. The agencies proposed this separate treatment for equity exposures to an investment fund to ensure that the regulatory capital VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 163 Interagency Statement on the Purchase and Risk Management of Life Insurance, pp. 19–20, https://www.federalreserve.gov/boarddocs/srletters/ 2004/SR0419a1.pdf. PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.008</GPH> methods: the dollar-offset method, the variability-reduction method, or the regression method. Under the dollaroffset method, an FDIC-supervised institution determines the ratio of the cumulative sum of the changes in value of one equity exposure to the cumulative sum of the changes in value of the other equity exposure, termed the ratio of value change (RVC). If the changes in the values of the two exposures perfectly offset each other, the RVC is ¥1. If RVC is positive, Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 same change in fair value (measured in dollars) given a small change in the price of the underlying equity instrument without subtracting the adjusted carrying value of the onbalance sheet component of the exposure as calculated under the same paragraph. Risk-weighted assets for such an exposure is determined by applying one of the three look-through approaches as provided in section 324.53 and, if applicable, section 324.154 of the interim final rule. As discussed further below, under the interim final rule, an FDIC-supervised institution determines the risk-weighted asset amount for equity exposures to investment funds using one of three approaches: the full look-through approach, the simple modified lookthrough approach, or the alternative modified look-through approach, unless the equity exposure to an investment fund is a community development equity exposure. The risk-weighted asset amount for such community development equity exposures is the exposure’s adjusted carrying value. If an FDIC-supervised institution does not use the full look-through approach, and an equity exposure to an investment fund is part of a hedge pair, an FDICsupervised institution must use the ineffective portion of the hedge pair as the adjusted carrying value for the equity exposure to the investment fund. The risk-weighted asset amount of the effective portion of the hedge pair is equal to its adjusted carrying value. An FDIC-supervised institution could choose which approach to apply for each equity exposure to an investment fund. 1. Full Look-Through Approach An FDIC-supervised institution may use the full look-through approach only if the FDIC-supervised institution is able to calculate a risk-weighted asset amount for each of the exposures held by the investment fund. Under the interim final rule, an FDIC-supervised institution using the full look-through approach is required to calculate the risk-weighted asset amount for its proportionate ownership share of each of the exposures held by the investment fund (as calculated under subpart D of the interim final rule) as if the proportionate ownership share of the adjusted carrying value of each exposures were held directly by the FDIC-supervised institution. The FDICsupervised institution’s risk-weighted asset amount for the exposure to the fund is equal to (1) the aggregate riskweighted asset amount of the exposures held by the fund as if they were held directly by the FDIC-supervised VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 institution multiplied by (2) the FDICsupervised institution’s proportional ownership share of the fund. 2. Simple Modified Look-Through Approach Under the simple modified lookthrough approach, an FDIC-supervised institution sets the risk-weighted asset amount for its equity exposure to an investment fund equal to the adjusted carrying value of the equity exposure multiplied by the highest applicable risk weight under subpart D of the interim final rule to any exposure the fund is permitted to hold under the prospectus, partnership agreement, or similar agreement that defines the fund’s permissible investments. The FDICsupervised institution may exclude derivative contracts held by the fund that are used for hedging, rather than for speculative purposes, and do not constitute a material portion of the fund’s exposures. 3. Alternative Modified Look-Through Approach Under the alternative modified lookthrough approach, an FDIC-supervised institution may assign the adjusted carrying value of an equity exposure to an investment fund on a pro rata basis to different risk weight categories under subpart D of the interim final rule based on the investment limits in the fund’s prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. The risk-weighted asset amount for the FDIC-supervised institution’s equity exposure to the investment fund is equal to the sum of each portion of the adjusted carrying value assigned to an exposure type multiplied by the applicable risk weight. If the sum of the investment limits for all permissible investments within the fund exceeds 100 percent, the FDIC-supervised institution must assume that the fund invests to the maximum extent permitted under its investment limits in the exposure type with the highest applicable risk weight under subpart D and continues to make investments in the order of the exposure category with the next highest risk weight until the maximum total investment level is reached. If more than one exposure category applies to an exposure, the FDIC-supervised institution must use the highest applicable risk weight. An FDIC-supervised institution may exclude derivative contracts held by the fund that are used for hedging, rather than for speculative purposes, and do not constitute a material portion of the fund’s exposures. PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 55445 Commenters expressed concerns regarding the application of the lookthrough approaches where an investment fund holds securitization exposures. Specifically, the commenters indicated a banking organization would be forced to apply a 1,250 percent risk weight to investment funds that hold securitization exposures if the banking organization does not have the information required to use one of the two applicable methods under subpart D to calculate the risk weight applicable to a securitization exposure: gross-up treatment or the SSFA. According to the commenters, such an outcome would be overly punitive and inconsistent with the generally diversified composition of investment funds. The FDIC acknowledges that an FDIC-supervised institution may have some difficulty obtaining all the information needed to use the gross-up treatment or SSFA, but believes that the proposed approach provides strong incentives for FDICsupervised institutions to obtain such information. As a result, the FDIC is finalizing the treatment as proposed. X. Market Discipline and Disclosure Requirements A. Proposed Disclosure Requirements The FDIC has long supported meaningful public disclosure by FDICsupervised institutions with the objective of improving market discipline and encouraging sound riskmanagement practices. The BCBS introduced public disclosure requirements under Pillar 3 of Basel II, which is designed to complement the minimum capital requirements and the supervisory review process by encouraging market discipline through enhanced and meaningful public disclosure.164 The BCBS introduced additional disclosure requirements in Basel III, which, under the interim final rule, apply to banking organizations as discussed herein.165 The agencies received a limited number of comments on the proposed disclosure requirements. The commenters expressed some concern that the proposed requirements would be extended to apply to smaller banking organizations. As discussed further below, the agencies proposed the 164 The agencies incorporated the BCBS disclosure requirements into the advanced approaches rule in 2007. See 72 FR 69288, 69432 (December 7, 2007). 165 In June 2012, the BCBS adopted Pillar 3 disclosure requirements in a paper titled ‘‘Composition of Capital Disclosure Requirements,’’ available at https://www.bis.org/publ/bcbs221.pdf. The FDIC anticipates incorporating these disclosure requirements through a separate notice and comment period. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55446 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations disclosure requirements for banking organizations with $50 billion or more in assets and believe they are most appropriate for these companies. The FDIC believes that the proposed disclosure requirements strike the appropriate balance between the market benefits of disclosure and the additional burden to an FDIC-supervised institution that provides the disclosures, and therefore has adopted the requirements as proposed, with minor clarification with regard to timing of disclosures as discussed further below. The public disclosure requirements under section 62 of the interim final rule apply only to FDIC-supervised institutions with total consolidated assets of $50 billion or more that are not a consolidated subsidiary of a BHC, covered SLHC, or depository institution that is subject to these disclosure requirements or a subsidiary of a nonU.S. FDIC-supervised institution that is subject to comparable public disclosure requirements in its home jurisdiction or an advanced approaches FDICsupervised institution making public disclosures pursuant to section 172 of the interim final rule. An advanced approaches FDIC-supervised institution that meets the $50 billion asset threshold, but that has not received approval from the FDIC to exit parallel run, must make the disclosures described in sections 324.62 and 324.63 of the interim final rule. The FDIC notes that the asset threshold of $50 billion is consistent with the threshold established by section 165 of the DoddFrank Act relating to enhanced supervision and prudential standards for certain FDIC-supervised institutions.166 An FDIC-supervised institution may be able to fulfill some of the disclosure requirements by relying on similar disclosures made in accordance with federal securities law requirements. In addition, an FDICsupervised institution may use information provided in regulatory reports to fulfill certain disclosure requirements. In these situations, an FDIC-supervised institution is required to explain any material differences between the accounting or other disclosures and the disclosures required under the interim final rule. An FDIC-supervised institution’s exposure to risks and the techniques that it uses to identify, measure, 166 See section 165(a) of the Dodd-Frank Act (12 U.S.C. 5365(a)). The Dodd-Frank Act provides that the Board may, upon the recommendation of the Financial Stability Oversight Council, increase the $50 billion asset threshold for the application of the resolution plan, concentration limit, and credit exposure report requirements. See 12 U.S.C. 5365(a)(2)(B). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 monitor, and control those risks are important factors that market participants consider in their assessment of the FDIC-supervised institution. Accordingly, an FDICsupervised institution must have a formal disclosure policy approved by its board of directors that addresses the FDIC-supervised institution’s approach for determining the disclosures it should make. The policy should address the associated internal controls, disclosure controls, and procedures. The board of directors and senior management should ensure the appropriate review of the disclosures and that effective internal controls, disclosure controls, and procedures are maintained. One or more senior officers of the FDIC-supervised institution must attest that the disclosures meet the requirements of this interim final rule. An FDIC-supervised institution must decide the relevant disclosures based on a materiality concept. Information is regarded as material for purposes of the disclosure requirements in the interim final rule if the information’s omission or misstatement could change or influence the assessment or decision of a user relying on that information for the purpose of making investment decisions. B. Frequency of Disclosures Consistent with the FDIC’s longstanding requirements for robust quarterly disclosures in regulatory reports, and considering the potential for rapid changes in risk profiles, the interim final rule requires that an FDICsupervised institution provide timely public disclosures after each calendar quarter. However, qualitative disclosures that provide a general summary of an FDIC-supervised institution’s risk-management objectives and policies, reporting system, and definitions may be disclosed annually after the end of the fourth calendar quarter, provided any significant changes are disclosed in the interim. The FDIC acknowledges that the timing of disclosures under the federal banking laws may not always coincide with the timing of disclosures required under other federal laws, including disclosures required under the federal securities laws and their implementing regulations by the SEC. For calendar quarters that do not correspond to fiscal year end, the FDIC considers those disclosures that are made within 45 days of the end of the calendar quarter (or within 60 days for the limited purpose of the FDICsupervised institution’s first reporting period in which it is subject to the rule’s disclosure requirements) as timely. In general, where an FDIC-supervised PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 institution’s fiscal year-end coincides with the end of a calendar quarter, the FDIC considers qualitative and quantitative disclosures to be timely if they are made no later than the applicable SEC disclosure deadline for the corresponding Form 10–K annual report. In cases where an institution’s fiscal year end does not coincide with the end of a calendar quarter, the FDIC would consider the timeliness of disclosures on a case-by-case basis. In some cases, management may determine that a significant change has occurred, such that the most recent reported amounts do not reflect the FDICsupervised institution’s capital adequacy and risk profile. In those cases, an FDIC-supervised institution needs to disclose the general nature of these changes and briefly describe how they are likely to affect public disclosures going forward. An FDICsupervised institution should make these interim disclosures as soon as practicable after the determination that a significant change has occurred. C. Location of Disclosures and Audit Requirements The disclosures required under the interim final rule must be publicly available (for example, included on a public Web site) for each of the last three years or such shorter time period beginning when the FDIC-supervised institution became subject to the disclosure requirements. For example, an FDIC-supervised institution that begins to make public disclosures in the first quarter of 2015 must make all of its required disclosures publicly available until the first quarter of 2018, after which it must make its required disclosures for the previous three years publicly available. Except as discussed below, management has some discretion to determine the appropriate medium and location of the disclosure. Furthermore, an FDIC-supervised institution has flexibility in formatting its public disclosures. The FDIC encourages management to provide all of the required disclosures in one place on the entity’s public Web site and the FDIC anticipates that the public Web site address would be reported in an FDIC-supervised institution’s regulatory report. However, an FDIC-supervised institution may provide the disclosures in more than one public financial report or other regulatory reports (for example, in Management’s Discussion and Analysis included in SEC filings), provided that the FDIC-supervised institution publicly provides a summary table specifically indicating the location(s) of all such disclosures (for example, regulatory E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations report schedules, page numbers in annual reports). The FDIC expects that disclosures of common equity tier 1, tier 1, and total capital ratios would be tested by external auditors as part of the financial statement audit. emcdonald on DSK67QTVN1PROD with RULES2 D. Proprietary and Confidential Information The FDIC believes that the disclosure requirements strike an appropriate balance between the need for meaningful disclosure and the protection of proprietary and confidential information.167 Accordingly, the FDIC believes that FDIC-supervised institutions would be able to provide all of these disclosures without revealing proprietary and confidential information. Only in rare circumstances might disclosure of certain items of information required by the interim final rule compel an FDICsupervised institution to reveal confidential and proprietary information. In these unusual situations, if an FDIC-supervised institution believes that disclosure of specific commercial or financial information would compromise its position by making public information that is either proprietary or confidential in nature, the FDIC-supervised institution will not be required to disclose those specific items under the rule’s periodic disclosure requirement. Instead, the FDICsupervised institution must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed. This provision applies only to those disclosures included in this interim final rule and does not apply to disclosure requirements imposed by accounting standards, other regulatory agencies, or under other requirements of the FDIC. E. Specific Public Disclosure Requirements The public disclosure requirements are designed to provide important information to market participants on the scope of application, capital, risk exposures, risk assessment processes, and, thus, the capital adequacy of the institution. The FDIC notes that the substantive content of the tables is the focus of the disclosure requirements, 167 Proprietary information encompasses information that, if shared with competitors, would render an FDIC-supervised institution’s investment in these products/systems less valuable, and, hence, could undermine its competitive position. Information about customers is often confidential, in that it is provided under the terms of a legal agreement or counterparty relationship. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 not the tables themselves. The table numbers below refer to the table numbers in section 63 of the interim final rule. An FDIC-supervised institution must make the disclosures described in Tables 1 through 10.168 Table 1 disclosures, ‘‘Scope of Application,’’ name the top corporate entity in the group to which subpart D of the interim final rule applies and include a brief description of the differences in the basis for consolidating entities for accounting and regulatory purposes, as well as a description of any restrictions, or other major impediments, on transfer of funds or total capital within the group. These disclosures provide the basic context underlying regulatory capital calculations. Table 2 disclosures, ‘‘Capital Structure,’’ provide summary information on the terms and conditions of the main features of regulatory capital instruments, which allow for an evaluation of the quality of the capital available to absorb losses within an FDIC-supervised institution. An FDICsupervised institution also must disclose the total amount of common equity tier 1, tier 1 and total capital, with separate disclosures for deductions and adjustments to capital. The FDIC expects that many of these disclosure requirements would be captured in revised regulatory reports. Table 3 disclosures, ‘‘Capital Adequacy,’’ provide information on an FDIC-supervised institution’s approach for categorizing and risk weighting its exposures, as well as the amount of total risk-weighted assets. The Table also includes common equity tier 1, and tier 1 and total risk-based capital ratios for the top consolidated group, and for each depository institution subsidiary. Table 4 disclosures, ‘‘Capital Conservation Buffer,’’ require an FDICsupervised institution to disclose the capital conservation buffer, the eligible retained income and any limitations on capital distributions and certain discretionary bonus payments, as applicable. Disclosures in Tables 5, ‘‘Credit Risk: General Disclosures,’’ 6, ‘‘General Disclosure for Counterparty Credit RiskRelated Exposures,’’ and 7, ‘‘Credit Risk Mitigation,’’ relate to credit risk, counterparty credit risk and credit risk mitigation, respectively, and provide market participants with insight into different types and concentrations of credit risk to which an FDIC-supervised 168 Other public disclosure requirements would continue to apply, such as federal securities law, and regulatory reporting requirements for FDICsupervised institutions. PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 55447 institution is exposed and the techniques it uses to measure, monitor, and mitigate those risks. These disclosures are intended to enable market participants to assess the credit risk exposures of the FDIC-supervised institution without revealing proprietary information. Table 8 disclosures, ‘‘Securitization,’’ provide information to market participants on the amount of credit risk transferred and retained by an FDICsupervised institution through securitization transactions, the types of products securitized by the organization, the risks inherent in the organization’s securitized assets, the organization’s policies regarding credit risk mitigation, and the names of any entities that provide external credit assessments of a securitization. These disclosures provide a better understanding of how securitization transactions impact the credit risk of an FDIC-supervised institution. For purposes of these disclosures, ‘‘exposures securitized’’ include underlying exposures transferred into a securitization by an FDIC-supervised institution, whether originated by the FDIC-supervised institution or purchased from third parties, and thirdparty exposures included in sponsored programs. Securitization transactions in which the originating FDIC-supervised institution does not retain any securitization exposure are shown separately and are only reported for the year of inception of the transaction. Table 9 disclosures, ‘‘Equities Not Subject to Subpart F of this Part,’’ provide market participants with an understanding of the types of equity securities held by the FDIC-supervised institution and how they are valued. These disclosures also provide information on the capital allocated to different equity products and the amount of unrealized gains and losses. Table 10 disclosures, ‘‘Interest Rate Risk for Non-trading Activities,’’ require an FDIC-supervised institution to provide certain quantitative and qualitative disclosures regarding the FDIC-supervised institution’s management of interest rate risks. XI. Risk-Weighted Assets— Modifications to the Advanced Approaches In the Advanced Approaches NPR, the agencies proposed revisions to the advanced approaches rule to incorporate certain aspects of Basel III, as well as the requirements introduced by the BCBS in the 2009 E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55448 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Enhancements 169 and subsequent consultative papers. In accordance with Basel III, the proposal sought to require advanced approaches banking organizations to hold more appropriate levels of capital for counterparty credit risk, CVA, and wrong-way risk. Consistent with the 2009 Enhancements, the agencies proposed to strengthen the risk-based capital requirements for certain securitization exposures by requiring banking organizations that are subject to the advanced approaches rule to conduct more rigorous credit analysis of securitization exposures and to enhance the disclosure requirements related to those exposures. The agencies also proposed revisions to the advanced approaches rule that are consistent with the requirements of section 939A of the Dodd-Frank Act.170 The agencies proposed to remove references to ratings from certain defined terms under the advanced approaches rule, as well as the ratingsbased approach for securitization exposures, and replace these provisions with alternative standards of creditworthiness. The proposed rule also contained a number of proposed technical amendments to clarify or adjust existing requirements under the advanced approaches rule. This section of the preamble describes the proposals in the Advanced Approaches NPR, comments received on those proposals, and the revisions to the advanced approaches rule reflected in the interim final rule. In many cases, the comments received on the Standardized Approach NPR were also relevant to the proposed changes to the advanced approaches framework. The FDIC generally took a consistent approach towards addressing the comments with respect to the standardized approach and the advanced approaches rule. Banking organizations that are or would be subject to the advanced approaches rule should refer to the relevant sections of the discussion of the standardized approach for further discussion of these comments. One commenter raised concerns about the use of models in determining regulatory capital requirements and encouraged the agencies to conduct periodic validation of banking organizations’ models for capital adequacy and require modification if necessary. Consistent with the current advanced approaches rule, the interim final rule requires an FDIC-supervised institution to validate its models used to determine regulatory capital requirements on an ongoing basis. This validation must include an evaluation of conceptual soundness; an ongoing monitoring process that includes verification of processes and benchmarking; and an outcomes analysis process that includes backtesting. Under section 324.123 of the interim final rule, the FDIC may require the FDIC-supervised institution to calculate its advanced approaches risk-weighted assets according to modifications provided by the FDIC if the FDIC determines that the FDICsupervised institution’s advanced approaches total risk-weighted assets are not commensurate with its credit, market, operational or other risks. Other commenters suggested that the agencies interpret section 171 of the Dodd-Frank Act narrowly with regard to the advanced approaches framework. The FDIC has adopted the approach taken in the proposed rule because it believes that the approach provides clear, consistent minimum requirements across institutions that comply with the requirements of section 171. 169 See ‘‘Enhancements to the Basel II framework’’ (July 2009), available at https://www.bis.org/publ/ bcbs157.htm. 170 See section 939A of Dodd-Frank Act (15 U.S.C. 78o–7 note). The EAD adjustment approach under section 132 of the proposed rules permitted a banking organization to recognize the credit risk mitigation VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 A. Counterparty Credit Risk The recent financial crisis highlighted certain aspects of the treatment of counterparty credit risk under the Basel II framework that were inadequate, and of banking organizations’ risk management of counterparty credit risk that were insufficient. The Basel III revisions were intended to address both areas of weakness by ensuring that all material on- and off-balance sheet counterparty risks, including those associated with derivative-related exposures, are appropriately incorporated into banking organizations’ risk-based capital ratios. In addition, new risk-management requirements in Basel III strengthen the oversight of counterparty credit risk exposures. The proposed rule included counterparty credit risk revisions in a manner generally consistent with the Basel III revisions to international standards, modified to incorporate alternative standards to the use of credit ratings. The discussion below highlights the proposed revisions, industry comments, and outcome of the interim final rule. 1. Recognition of Financial Collateral a. Financial Collateral PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 benefits of financial collateral by adjusting the EAD rather than the loss given default (LGD) of the exposure for repo-style transactions, eligible margin loans and OTC derivative contracts. The permitted methodologies for recognizing such benefits included the collateral haircut approach, simple VaR approach and the IMM. Consistent with Basel III, the Advanced Approaches NPR proposed certain modifications to the definition of financial collateral. For example, the definition of financial collateral was modified so that resecuritizations would no longer qualify as financial collateral.171 Thus, resecuritization collateral could not be used to adjust the EAD of an exposure. The FDIC believes that this treatment is appropriate because resecuritizations have been shown to have more market value volatility than other types of financial collateral. The proposed rule also removed conforming residential mortgages from the definition of financial collateral. As a result, a banking organization would no longer be able to recognize the credit risk mitigation benefit of such instruments through an adjustment to EAD. Consistent with the Basel III framework, the agencies proposed to exclude all debt securities that are not investment grade from the definition of financial collateral. As discussed in section VII.F of this preamble, the proposed rule revised the definition of ‘‘investment grade’’ for the advanced approaches rule and proposed conforming changes to the market risk rule. As discussed in section VIII.F of the preamble, the FDIC believes that the additional collateral types suggested by commenters are not appropriate forms of financial collateral because they exhibit increased variation and credit risk, and are relatively more speculative than the recognized forms of financial collateral under the proposal. In some cases, the assets suggested by commenters for eligibility as financial collateral were precisely the types of assets that became illiquid during the recent financial crisis. As a result, the FDIC has retained the definition of financial collateral as proposed. 171 Under the proposed rule, a securitization in which one or more of the underlying exposures is a securitization position would be a resecuritization. A resecuritization position under the proposal meant an on- or off-balance sheet exposure to a resecuritization, or an exposure that directly or indirectly references a securitization exposure. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations b. Revised Supervisory Haircuts Securitization exposures have increased levels of volatility relative to other types of financial collateral. To address this issue, consistent with Basel III, the proposal incorporated new standardized supervisory haircuts for securitization exposures in the EAD adjustment approach based on the credit quality of the exposure. Consistent with section 939A of the Dodd-Frank Act, the proposed rule set out an alternative approach to assigning standard supervisory haircuts for securitization exposures, and amended the standard supervisory haircuts for other types of financial collateral to remove the references to credit ratings. Some commenters proposed limiting the maximum haircut for non-sovereign issuers that receive a 100 percent risk weight to 12 percent, and more specifically assigning a lower haircut than 25 percent for financial collateral in the form of an investment-grade corporate debt security that has a shorter residual maturity. The commenters asserted that these haircuts conservatively correspond to the existing rating categories and result in greater alignment with the Basel framework. As discussed in section VIII.F of the preamble, in the interim final rule, the FDIC has revised the standard supervisory market price volatility haircuts for financial collateral issued by non-sovereign issuers with a risk weight of 100 percent from 25.0 percent to 4.0 percent for maturities of less than one year, 8.0 percent for maturities greater than one year but less than or equal to five years, and 16.0 percent for maturities greater than five years, consistent with Table 25 below. 55449 The FDIC believes that the revised haircuts better reflect the collateral’s credit quality and an appropriate differentiation based on the collateral’s residual maturity. Consistent with the proposal, under the interim final rule, supervisory haircuts for exposures to sovereigns, GSEs, public sector entities, depository institutions, foreign banks, credit unions, and corporate issuers are calculated based upon the risk weights for such exposures described under section 324.32 of the interim final rule. The interim final rule also clarifies that if an FDIC-supervised institution lends instruments that do not meet the definition of financial collateral, such as non-investment-grade corporate debt securities or resecuritization exposures, the haircut applied to the exposure must be 25 percent. TABLE 25—STANDARD SUPERVISORY MARKET PRICE VOLATILITY HAIRCUTS 1 Haircut (in percent) assigned based on: Sovereign issuers risk weight under section 32 2 (in percent) Residual maturity Zero Less than or equal to 1 year ..... Greater than 1 year and less than or equal to 5 years ......... Greater than 5 years .................. 20 or 50 100 Non-sovereign issuers risk weight under section 32 (in percent) 20 50 Investmentgrade securitization exposures (in percent) 100 0.5 1.0 15.0 1.0 2.0 4.0 4.0 2.0 4.0 3.0 6.0 15.0 15.0 4.0 8.0 6.0 12.0 8.0 16.0 12.0 24.0 Main index equities (including convertible bonds) and gold Other publicly traded equities (including convertible bonds) 25.0 Mutual funds Highest haircut applicable to any security in which the fund can invest. Cash collateral held Zero Other exposure types 1 The 15.0 25.0 market price volatility haircuts in Table 25 are based on a 10 business-day holding period. a foreign PSE that receives a zero percent risk weight. emcdonald on DSK67QTVN1PROD with RULES2 2 Includes 2. Holding Periods and the Margin Period of Risk As noted in the proposal, during the recent financial crisis, many financial institutions experienced significant delays in settling or closing out collateralized transactions, such as repostyle transactions and collateralized OTC derivative contracts. The assumed holding period for collateral in the collateral haircut and simple VaR approaches and the margin period of risk in the IMM proved to be inadequate for certain transactions and netting sets.172 It also did not reflect the 172 Under the advanced approaches rule, the margin period of risk means, with respect to a netting set subject to a collateral agreement, the time period from the most recent exchange of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 difficulties and delays experienced by institutions when settling or liquidating collateral during a period of financial stress. Consistent with Basel III, the proposed rule would have amended the advanced approaches rule to incorporate adjustments to the holding period in the collateral haircut and simple VaR approaches, and to the margin period of risk in the IMM that a banking organization may use to collateral with a counterparty until the next required exchange of collateral plus the period of time required to sell and realize the proceeds of the least liquid collateral that can be delivered under the terms of the collateral agreement and, where applicable, the period of time required to re-hedge the resulting market risk, upon the default of the counterparty. PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 determine its capital requirement for repo-style transactions, OTC derivative transactions, and eligible margin loans, with respect to large netting sets, netting sets involving illiquid collateral or including OTC derivatives that could not easily be replaced, or two margin disputes within a netting set over the previous two quarters that last for a certain length of time. For cleared transactions, which are discussed below, the agencies proposed not to require a banking organization to adjust the holding period or margin period of risk upward when determining the capital requirement for its counterparty credit risk exposures to the CCP, which is also consistent with Basel III. E:\FR\FM\10SER2.SGM 10SER2 55450 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations One commenter asserted that the proposed triggers for the increased margin period of risk were not in the spirit of the advanced approaches rule, which is intended to be more risk sensitive than the general risk-based capital rules. Another commenter asserted that banking organizations should be permitted to increase the holding period or margin period of risk by one or more business days, but not be required to increase it to the full period required under the proposal (20 business days or at least double the margin period of risk). The FDIC believes the triggers set forth in the proposed rule, as well as the increased holding period or margin period of risk are empirical indicators of increased risk of delay or failure of close-out on the default of a counterparty. The goal of risk sensitivity would suggest that modifying these indicators is not warranted and could lead to increased risks to the banking system. Accordingly, the interim final rule adopts these features as proposed. emcdonald on DSK67QTVN1PROD with RULES2 3. Internal Models Methodology Consistent with Basel III, the proposed rule would have amended the advanced approaches rule so that the capital requirement for IMM exposures is equal to the larger of the capital requirement for those exposures calculated using data from the most recent three-year period and data from a three-year period that contains a period of stress reflected in the credit default spreads of the banking organization’s counterparties. The proposed rule defined an IMM exposure as a repo-style transaction, eligible margin loan, or OTC derivative contract for which a banking organization calculates EAD using the IMM. The proposed rule would have required a banking organization to demonstrate to the satisfaction of the banking organization’s primary Federal supervisor at least quarterly that the stress period it uses for the IMM coincides with increased CDS or other credit spreads of its counterparties and to have procedures in place to evaluate the effectiveness of its stress calibration. These procedures would have been required to include a process for using benchmark portfolios that are vulnerable to the same risk factors as the banking organization’s portfolio. In addition, under the proposal, the primary Federal supervisor could require a banking organization to modify its stress calibration if the primary Federal supervisor believes that another calibration better reflects the actual historic losses of the portfolio. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Consistent with Basel III and the current advanced approaches rule, the proposed rule would have required a banking organization to establish a process for initial validation and annual review of its internal models. As part of the process, the proposed rule would have required a banking organization to have a backtesting program for its model that includes a process by which unacceptable model performance is identified and remedied. In addition, a banking organization would have been required to multiply the expected positive exposure (EPE) of a netting set by the default scaling factor alpha (set equal to 1.4) in calculating EAD. The primary Federal supervisor could require the banking organization to set a higher default scaling factor based on the past performance of the banking organization’s internal model. The proposed rule would have required a banking organization to have policies for the measurement, management, and control of collateral, including the reuse of collateral and margin amounts, as a condition of using the IMM. Under the proposal, a banking organization would have been required to have a comprehensive stress testing program for the IMM that captures all credit exposures to counterparties and incorporates stress testing of principal market risk factors and the creditworthiness of its counterparties. Basel III provided that a banking organization could capture within its internal model the effect on EAD of a collateral agreement that requires receipt of collateral when the exposure to the counterparty increases. Basel II also contained a ‘‘shortcut’’ method to provide a banking organization whose internal model did not capture the effects of collateral agreements with a method to recognize some benefit from the collateral agreement. Basel III modifies the ‘‘shortcut’’ method for capturing the effects of collateral agreements by setting effective EPE to a counterparty as the lesser of the following two exposure calculations: (1) The exposure without any held or posted margining collateral, plus any collateral posted to the counterparty independent of the daily valuation and margining process or current exposure, or (2) an add-on that reflects the potential increase of exposure over the margin period of risk plus the larger of (i) the current exposure of the netting set reflecting all collateral received or posted by the banking organization excluding any collateral called or in dispute; or (ii) the largest net exposure (including all collateral held or posted under the margin agreement) that would not trigger a collateral call. The add-on PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 would be computed as the largest expected increase in the netting set’s exposure over any margin period of risk in the next year. The proposed rule included the Basel III modification of the ‘‘shortcut’’ method. The interim final rule adopts all the proposed requirements discussed above with two modifications. With respect to the proposed requirement that an FDICsupervised institution must demonstrate on a quarterly basis to the FDIC the appropriateness of its stress period, under the interim final rule, the FDICsupervised institution must instead demonstrate at least quarterly that the stress period coincides with increased CDS or other credit spreads of the FDICsupervised institution’s counterparties, and must maintain documentation of such demonstration. In addition, the formula for the ‘‘shortcut’’ method has been modified to clarify that the add-on is computed as the expected increase in the netting set’s exposure over the margin period of risk. a. Recognition of Wrong-Way Risk The recent financial crisis highlighted the interconnectedness of large financial institutions through an array of complex transactions. In recognition of this interconnectedness and to mitigate the risk of contagion from the banking sector to the broader financial system and the general economy, Basel III includes enhanced requirements for the recognition and treatment of wrong-way risk in the IMM. The proposed rule defined wrong-way risk as the risk that arises when an exposure to a particular counterparty is positively correlated with the probability of default of that counterparty. The proposed rule provided enhancements to the advanced approaches rule that require banking organizations’ risk-management procedures to identify, monitor, and control wrong-way risk throughout the life of an exposure. The proposed rule required these risk-management procedures to include the use of stress testing and scenario analysis. In addition, where a banking organization has identified an IMM exposure with specific wrong-way risk, the banking organization would be required to treat that transaction as its own netting set. The proposed rule defined specific wrong-way risk as a type of wrong-way risk that arises when either the counterparty and issuer of the collateral supporting the transaction, or the counterparty and the reference asset of the transaction, are affiliates or are the same entity. In addition, under the proposal, where a banking organization has E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations identified an OTC derivative transaction, repo-style transaction, or eligible margin loan with specific wrong-way risk for which the banking organization otherwise applies the IMM, the banking organization would set the probability of default (PD) of the counterparty and a LGD equal to 100 percent. The banking organization would then enter these parameters into the appropriate risk-based capital formula specified in Table 1 of section 131 of the proposed rule, and multiply the output of the formula (K) by an alternative EAD based on the transaction type, as follows: (1) For a purchased credit derivative, EAD would be the fair value of the underlying reference asset of the credit derivative contract; (2) For an OTC equity derivative,173 EAD would be the maximum amount that the banking organization could lose if the fair value of the underlying reference asset decreased to zero; (3) For an OTC bond derivative (that is, a bond option, bond future, or any other instrument linked to a bond that gives rise to similar counterparty credit risks), EAD would be the smaller of the notional amount of the underlying reference asset and the maximum amount that the banking organization could lose if the fair value of the underlying reference asset decreased to zero; and (4) For repo-style transactions and eligible margin loans, EAD would be calculated using the formula in the collateral haircut approach of section 132 of the interim final rule and with the estimated value of the collateral substituted for the parameter C in the equation. The interim final rule adopts the proposed requirements regarding wrong-way risk discussed above. emcdonald on DSK67QTVN1PROD with RULES2 b. Increased Asset Value Correlation Factor To recognize the correlation of financial institutions’ creditworthiness attributable to similar sensitivities to common risk factors, the agencies proposed to incorporate the Basel III increase in the correlation factor used in the formulas provided in Table 1 of section 131 of the proposed rule for certain wholesale exposures. Under the proposed rule, banking organizations would apply a multiplier of 1.25 to the correlation factor for wholesale exposures to unregulated financial institutions that generate a majority of 173 Under the interim final rule, equity derivatives that are call options are not subject to a counterparty credit risk capital requirement for specific wrong-way risk. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 their revenue from financial activities, regardless of asset size. This category would include highly leveraged entities, such as hedge funds and financial guarantors. The proposal also included a definition of ‘‘regulated financial institution,’’ meaning a financial institution subject to consolidated supervision and regulation comparable to that imposed on certain U.S. financial institutions, namely depository institutions, depository institution holding companies, nonbank financial companies supervised by the Federal Reserve, designated FMUs, securities broker-dealers, credit unions, or insurance companies. Banking organizations would apply a multiplier of 1.25 to the correlation factor for wholesale exposures to regulated financial institutions with consolidated assets of greater than or equal to $100 billion. Several commenters pointed out that in the proposed formulas for wholesale exposures to unregulated and regulated financial institutions, the 0.18 multiplier should be revised to 0.12 in order to be consistent with Basel III. The FDIC has corrected this aspect of both formulas in the interim final rule. Another comment asserted that the 1.25 multiplier for the correlation factor for wholesale exposures to unregulated financial institutions or regulated financial institutions with more than $100 billion in assets is an overly blunt tool and is not necessary as single counterparty credit limits already address interconnectivity risk. Consistent with the concerns about systemic risk and interconnectedness surrounding these classes of institutions, the FDIC continues to believe that the 1.25 multiplier appropriately reflects the associated additional risk. Therefore, the interim final rule retains the 1.25 multiplier. In addition, the interim final rule also adopts the definition of ‘‘regulated financial institution’’ without change from the proposal. As discussed in section V.B, above, the FDIC received significant comment on the definition of ‘‘financial institution’’ in the context of deductions of investments in the capital of unconsolidated financial institutions. That definition also, under the proposal, defined the universe of ‘‘unregulated’’ financial institutions as companies meeting the definition of ‘‘financial institution’’ that were not regulated financial institutions. For the reasons discussed in section V.B of the preamble, the FDIC has modified the definition of ‘‘financial institution,’’ including by introducing an ownership interest threshold to the ‘‘predominantly engaged’’ test to determine if an FDIC- PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 55451 supervised institution must subject a particular unconsolidated investment in a company that may be a financial institution to the relevant deduction thresholds under subpart C of the interim final rule. While commenters stated that it would be burdensome to determine whether an entity falls within the definition of financial institution using the predominantly engaged test, the FDIC believes that advanced approaches FDIC-supervised institutions should have the systems and resources to identify the activities of their wholesale counterparties. Accordingly, under the interim final rule, the FDIC has adopted a definition of ‘‘unregulated financial institution’’ that does not include the ownership interest threshold test but otherwise incorporates revisions to the definition of ‘‘financial institution.’’ Under the interim final rule, an ‘‘unregulated financial institution’’ is a financial institution that is not a regulated financial institution and that meets the definition of ‘‘financial institution’’ under the interim final rule without regard to the ownership interest thresholds set forth in paragraph (4)(i) of that definition. The FDIC believes the ‘‘unregulated financial institution’’ definition is necessary to maintain an appropriate scope for the 1.25 multiplier consistent with the proposal and Basel III. 4. Credit Valuation Adjustments After the recent financial crisis, the BCBS reviewed the treatment of counterparty credit risk and found that roughly two-thirds of counterparty credit risk losses during the crisis were due to fair value losses from CVA (that is, the fair value adjustment to reflect counterparty credit risk in the valuation of an OTC derivative contract), whereas one-third of counterparty credit risk losses resulted from actual defaults. The internal ratings-based approach in Basel II addressed counterparty credit risk as a combination of default risk and credit migration risk. Credit migration risk accounts for fair value losses resulting from deterioration of counterparties’ credit quality short of default and is addressed in Basel II via the maturity adjustment multiplier. However, the maturity adjustment multiplier in Basel II was calibrated for loan portfolios and may not be suitable for addressing CVA risk. Basel III therefore includes an explicit capital requirement for CVA risk. Accordingly, consistent with Basel III and the proposal, the interim final rule requires FDIC-supervised institutions to calculate risk-weighted assets for CVA risk. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55452 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Consistent with the Basel III CVA capital requirement and the proposal, the interim final rule reflects in riskweighted assets a potential increase of the firm-wide CVA due to changes in counterparties’ credit spreads, assuming fixed expected exposure (EE) profiles. The proposed and interim final rules provide two approaches for calculating the CVA capital requirement: the simple approach and the advanced CVA approach. However, unlike Basel III, they do not include references to credit ratings. Consistent with the proposal and Basel III, the simple CVA approach in the interim final rule permits calculation of the CVA capital requirement (KCVA) based on a formula described in more detail below, with a modification consistent with section 939A of the Dodd-Frank Act. Under the advanced CVA approach in the interim final rule, consistent with the proposal, an FDIC-supervised institution would use the VaR model that it uses to calculate specific risk under section 324.207(b) of subpart F or another model that meets the quantitative requirements of sections 324.205(b) and 324.207(b)(1) of subpart F to calculate its CVA capital requirement for its entire portfolio of OTC derivatives that are subject to the CVA capital requirement 174 by modeling the impact of changes in the counterparties’ credit spreads, together with any recognized CVA hedges on the CVA for the counterparties. To convert the CVA capital requirement to a risk-weighted asset amount, an FDIC-supervised institution must multiply its CVA capital requirement by 12.5. The CVA risk-weighted asset amount is not a component of credit risk-weighted assets and therefore is not subject to the 1.06 multiplier for credit risk-weighted assets under the interim final rule. Consistent with the proposal, the interim final rule provides that only an FDIC-supervised institution that is subject to the market risk rule and had obtained prior approval from the FDIC to calculate (1) the EAD for OTC derivative contracts using the IMM described in section 324.132, and (2) the specific risk add-on for debt positions using a specific risk model described in section 324.207(b) of subpart F is eligible to use the advanced CVA approach. An FDIC-supervised 174 Certain CDS may be exempt from inclusion in the portfolio of OTC derivatives that are subject to the CVA capital requirement. For example, a CDS on a loan that is recognized as a credit risk mitigant and receives substitution treatment under section 134 would not be included in the portfolio of OTC derivatives that are subject to the CVA capital requirement. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 institution that receives such approval would be able to continue to use the advanced CVA approach until it notifies the FDIC in writing that it expects to begin calculating its CVA capital requirement using the simple CVA approach. Such notice must include an explanation from the FDIC-supervised institution as to why it is choosing to use the simple CVA approach and the date when the FDIC-supervised institution would begin to calculate its CVA capital requirement using the simple CVA approach. Consistent with the proposal, under the interim final rule, when calculating a CVA capital requirement, an FDICsupervised institution may recognize the hedging benefits of single name CDS, single name contingent CDS, any other equivalent hedging instrument that references the counterparty directly, and index CDS (CDSind), provided that the equivalent hedging instrument is managed as a CVA hedge in accordance with the FDIC-supervised institution’s hedging policies. A tranched or nth-to-default CDS would not qualify as a CVA hedge. In addition, any position that is recognized as a CVA hedge would not be a covered position under the market risk rule, except in the case where the FDIC-supervised institution is using the advanced CVA approach, the hedge is a CDSind, and the VaR model does not capture the basis between the spreads of the index that is used as the hedging instrument and the hedged counterparty exposure over various time periods, as discussed in further detail below. The agencies received several comments on the proposed CVA capital requirement. One commenter asserted that there was ambiguity in the ‘‘total CVA riskweighted assets’’ definition which could be read as indicating that KCVA is calculated for each counterparty and then summed. The FDIC agrees that KCVA relates to an FDIC-supervised institution’s entire portfolio of OTC derivatives contracts, and the interim final rule reflects this clarification. A commenter asserted that the proposed CVA treatment should not apply to central banks, MDBs and other similar counterparties that have very low credit risk, such as the Bank for International Settlements and the European Central Bank, as well as U.S. PSEs. Another commenter pointed out that the proposal in the European Union to implement Basel III excludes sovereign, pension fund, and corporate counterparties from the proposed CVA treatment. Another commenter argued that the proposed CVA treatment should not apply to transactions executed with end-users when hedging business risk PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 because the resulting increase in pricing will disproportionately impact smalland medium-sized businesses. The interim final rule does not exempt the entities suggested by commenters. However, the FDIC anticipates that a counterparty that is exempt from the 0.03 percent PD floor under § 324.131(d)(2) and receives a zero percent risk weight under § 324.32 (that is, central banks, MDBs, the Bank for International Settlements and European Central Bank) likely would attract a minimal CVA requirement because the credit spreads associated with these counterparties have very little variability. Regarding the other entities mentioned by commenters (U.S. public sector entities, pension funds and corporate end-users), the FDIC believes it is appropriate for CVA to apply as these counterparty types exhibit varying degrees of credit risk. Some commenters asked that the agencies clarify that interest rate hedges of CVA are not covered positions as defined in subpart F and, therefore, not subject to a market risk capital requirement. In addition, some commenters asserted that the overall capital requirements for CVA are more appropriately addressed as a trading book issue in the context of the BCBS Fundamental Review of the Trading Book.175 Another commenter asserted that CVA rates hedges (to the extent they might be covered positions) should be excluded from the market-risk rule capital requirements until supervisors are ready to approve allowing CVA rates sensitivities to be incorporated into a banking organization’s general market risk VaR. The FDIC recognizes that CVA is not a covered position under the market risk rule. Hence, as elaborated in the market risk rule, hedges of non-covered positions that are not themselves trading positions also are not eligible to be a covered position under the market risk rule. Therefore, the FDIC clarifies that non-credit risk hedges (market risk hedges or exposure hedges) of CVA generally are not covered positions under the market risk rule, but rather are assigned risk-weighted asset amounts under subparts D and E of the interim final rule.176 Once the BCBS Fundamental Review of the Trading 175 See ‘‘Fundamental review of the trading book’’ (May 2012) available at https://www.bis.org/publ/ bcbs219.pdf. 176 The FDIC believes that an FDIC-supervised institution needs to demonstrate rigorous risk management and the efficacy of its CVA hedges and should follow the risk management principles of the Interagency Supervisory Guidance on Counterparty Credit Risk Management (2011) and identification of covered positions as in the FDIC’s market risk rule, see 77 FR 53060 (August 30, 2012). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55453 Book is complete, the agencies will review the BCBS findings and consider whether they are appropriate for U.S. banking organizations. One commenter asserted that observable LGDs for credit derivatives do not represent the best estimation of LGD for calculating CVA under the advanced CVA approach, and that a final rule should instead consider a number of parameters, including market observable recovery rates on unsecured bonds and structural components of the derivative. Another commenter argued that banking organizations should be permitted greater flexibility in determining market-implied loss given default (LGDMKT) and credit spread factors for VaR. Consistent with the BCBS’s frequently asked question (BCBS FAQ) on this topic,177 the FDIC recognizes that while there is often limited market information of LGDMKT (or equivalently the market implied recovery rate), the FDIC considers the use of LGDMKT to be the most appropriate approach to quantify CVA. It is also the market convention to use a fixed recovery rate for CDS pricing purposes; FDICsupervised institutions may use that information for purposes of the CVA capital requirement in the absence of other information. In cases where a netting set of OTC derivative contracts has a different seniority than those derivative contracts that trade in the market from which LGDMKT is inferred, an FDIC-supervised institution may adjust LGDMKT to reflect this difference in seniority. Where no market information is available to determine LGDMKT, an FDIC-supervised institution may propose a method for determining LGDMKT based upon data collected by the FDIC-supervised institution that would be subject to approval by the FDIC. The interim final rule has been amended to include this alternative. Regarding the proposed CVA EAD calculation assumptions in the advanced CVA approach, one commenter asserted that EE constant treatment is inappropriate, and that it is more appropriate to use the weighted average maturity of the portfolio rather than the netting set. Another commenter asserted that maturity should equal the weighted average maturity of all transactions in the netting set, rather than the greater of the notional weighted average maturity and the maximum of half of the longest maturity occurring in the netting set. The FDIC notes that this issue is relevant only where an FDICsupervised institution utilized the current exposure method or the ‘‘shortcut’’ method, rather than IMM, for any immaterial portfolios of OTC derivatives contracts. As a result, the interim final rule retains the requirement to use the greater of the notional weighted average maturity (WAM) and the maximum of half of the longest maturity in the netting set when calculating EE constant treatment in the advanced CVA approach. One commenter asked the agencies to clarify that section 132(c)(3) would exempt the purchased CDS from the proposed CVA capital requirements in section 132(e) of a final rule. Consistent with the BCBS FAQ on this topic, the FDIC agrees that purchased credit derivative protection against a wholesale exposure that is subject to the double default framework or the PD substitution approach and where the wholesale exposure itself is not subject to the CVA capital requirement, will not be subject to the CVA capital requirement in the interim final rule. Also consistent with the BCBS FAQ, the purchased credit derivative protection may not be recognized as a hedge for any other exposure under the interim final rule. Another commenter asserted that single-name proxy CDS trades should be allowed as hedges in the advanced CVA approach CVA VaR calculation. Under the interim final rule, an FDICsupervised institution is permitted to recognize the hedging benefits of single name CDS, single name contingent CDS, any other equivalent hedging instrument that references the counterparty directly, and CDSind, provided that the hedging instrument is managed as a CVA hedge in accordance with the FDIC-supervised institution’s hedging policies. The interim final rule does not permit the use of single-name proxy CDS. The FDIC believes this is an important limitation because of the significant basis risk that could arise from the use of a single-name proxy. Additionally, the interim final rule reflects several clarifying amendments to the proposed rule. First, the interim final rule divides the Advanced CVA formulas in the proposed rule into two parts: Formula 3 and Formula 3a. The FDIC believes that this clarification is important to reflect the different purposes of the two formulas: the first formula (Formula 3) is for the CVA VaR calculation, whereas the second formula (Formula 3a) is for calculating CVA for each credit spread simulation scenario. The interim final rule includes a description that clarifies each formula’s purpose. In addition, the notations in proposed Formula 3 have been changed from CVAstressedVaR and CVAunstressedVaR to VaRCVAstressed and VaRCVAunstressed. The definitions of these terms have not changed in the interim final rule. Finally, the subscript ‘‘j’’ in Formula 3a has been defined as referring either to stressed or unstressed calibrations. These formulas are discussed in the interim final rule description below. 177 See ‘‘Basel III counterparty credit risk and exposures to central counterparties—Frequently asked questions (December 2012 (update of FAQs published November 2012)) at https://www.bis.org/ publ/bcbs237.pdf. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 a. Simple Credit Valuation Adjustment approach Under the interim final rule, an FDICsupervised institution without approval to use the advanced CVA approach must use formula 1 to calculate its CVA capital requirement for its entire portfolio of OTC derivative contracts. The simple CVA approach is based on an analytical approximation derived from a general CVA VaR formulation under a set of simplifying assumptions: (1) All credit spreads have a flat term structure; (2) All credit spreads at the time horizon have a lognormal distribution; (3) Each single name credit spread is driven by the combination of a single systematic factor and an idiosyncratic factor; (4) The correlation between any single name credit spread and the systematic factor is equal to 0.5; (5) All credit indices are driven by the single systematic factor; and (6) The time horizon is short (the square root of time scaling to 1 year is applied). The approximation is based on the linearization of the dependence of both CVA and CDS hedges on credit spreads. Given the assumptions listed above, a measure of CVA VaR has a closed-form analytical solution. The formula of the simple CVA approach is obtained by applying certain standardizations, conservative adjustments, and scaling to the analytical CVA VaR result. An FDIC-supervised institution calculates KCVA, where: E:\FR\FM\10SER2.SGM 10SER2 55454 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations In Formula 1, wi refers to the weight applicable to counterparty i assigned according to Table 26 below.178 In Basel III, the BCBS assigned wi based on the external rating of the counterparty. However, consistent with the proposal and section 939A of the Dodd-Frank Act, the interim final rule assigns wi based on the relevant PD of the counterparty, as assigned by the FDICsupervised institution. Quantity wind in Formula 1 refers to the weight applicable to the CDSind based on the average weight under Table 26 of the underlying reference names that comprise the index. b. Advanced Credit Valuation Adjustment approach ER10SE13.010</GPH> 178 These weights represent the assumed values of the product of a counterparties’ current credit spread and the volatility of that credit spread. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.009</GPH> emcdonald on DSK67QTVN1PROD with RULES2 The term ‘‘exp’’ is the exponential function. Quantity Mi in Formulas 1 and 2 refers to the EAD-weighted average of the effective maturity of each netting set with counterparty i (where each netting set’s M cannot be smaller than one). Quantity Mi hedge in Formula 1 refers to the notional weighted average maturity of the hedge instrument. Quantity Mind in Formula 1 equals the maturity of the CDSind or the notional weighted average maturity of any CDSind purchased to TABLE 26—ASSIGNMENT OF COUNTERPARTY WEIGHT UNDER THE hedge CVA risk of counterparty i. SIMPLE CVA Quantity Bi in Formula 1 refers to the sum of the notional amounts of any Internal PD Weight wi purchased single name CDS referencing (in percent) (in percent) counterparty i that is used to hedge CVA 0.00–0.07 .............................. 0.70 risk to counterparty i multiplied by (1hedge))/(0.05 × M hedge). i >0.07–0.15 ............................ 0.80 exp(¥0.05 × Mi Quantity Bind in Formula 1 refers to the >0.15–0.40 ............................ 1.00 >0.4–2.00 .............................. 2.00 notional amount of one or more CDSind >2.0–6.00 .............................. 3.00 purchased as protection to hedge CVA >6.0 ....................................... 10.00 risk for counterparty i multiplied by (1exp(¥0.05 × Mind))/(0.05 × Mind). If counterparty i is part of an index used EADi total in Formula 1 refers to the for hedging, an FDIC-supervised sum of the EAD for all netting sets of institution is allowed to treat the OTC derivative contracts with notional amount in an index attributable counterparty i calculated using the to that counterparty as a single name current exposure methodology hedge of counterparty i (Bi,) when described in section 132(c) of the calculating KCVA and subtract the interim final rule, as adjusted by notional amount of Bi from the notional Formula 2 or the IMM described in amount of the CDSind. The CDSind hedge section 132(d) of the interim final rule. with the notional amount reduced by Bi When the FDIC-supervised institution calculates EAD using the IMM, EADi total can still be treated as a CVA index hedge. equals EADunstressed. The interim final rule requires that the VaR model incorporate only changes in the counterparties’ credit spreads, not changes in other risk factors; it does not require an FDIC-supervised institution to capture jump-to-default risk in its VaR model. In order for an FDIC-supervised institution to receive approval to use the advanced CVA approach under the interim final rule, the FDIC-supervised institution needs to have the systems capability to calculate the CVA capital requirement on a daily basis but is not expected or required to calculate the CVA capital requirement on a daily basis. The CVA capital requirement under the advanced CVA approach is equal to the general market risk capital requirement of the CVA exposure using the ten-business-day time horizon of the market risk rule. The capital requirement does not include the incremental risk requirement of subpart F. If an FDIC-supervised institution uses the current exposure methodology to calculate the EAD of any immaterial OTC derivative portfolio, under the interim final rule the FDIC-supervised institution must use this EAD as a constant EE in the formula for the calculation of CVA. Also, the FDICsupervised institution must set the maturity equal to the greater of half of the longest maturity occurring in the netting set and the notional weighted average maturity of all transactions in the netting set. The interim final rule requires an FDIC-supervised institution to use the formula for the advanced CVA approach to calculate KCVA as follows: Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55455 horizon.179 CVAj for a given counterparty must be calculated according to spread of a publicly traded debt instrument of the counterparty, or, where a publicly traded debt instrument spread is not available, a proxy spread based on the credit quality, industry and region of the counterparty. (E) EEi equals the sum of the expected exposures for all netting sets with the counterparty at revaluation time ti calculated using the IMM. (F) Di equals the risk-free discount factor at time ti, where D0 = 1. (G) The function exp is the exponential function. (H) The subscript j refers either to a stressed or an unstressed calibration as described in section 324.132(e)(6)(iv) and (v) of the interim final rule. Under the interim final rule, if an FDIC-supervised institution’s VaR model is not based on full repricing, the FDIC-supervised institution must use either Formula 4 or Formula 5 to calculate credit spread sensitivities. If the VaR model is based on credit spread sensitivities for specific tenors, the FDIC-supervised institution must calculate each credit spread sensitivity according to Formula 4: 179 For purposes of this formula, the subscript ‘‘ ’’ j refers either to a stressed or unstressed calibration as described in section 133(e)(6)(iv) and (v) of the interim final rule. 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.011</GPH> VerDate Mar<15>2010 ER10SE13.012</GPH> counterparties and eligible hedges) resulting from simulated changes of credit spreads over a ten-day time In Formula 3a: (A) ti equals the time of the i-th revaluation time bucket starting from t0 = 0. (B) tT equals the longest contractual maturity across the OTC derivative contracts with the counterparty. (C) si equals the CDS spread for the counterparty at tenor ti used to calculate the CVA for the counterparty. If a CDS spread is not available, the FDICsupervised institution must use a proxy spread based on the credit quality, industry and region of the counterparty. (D) LGDMKT equals the loss given default of the counterparty based on the emcdonald on DSK67QTVN1PROD with RULES2 VaRj is the 99 percent VaR reflecting changes of CVAj and fair value of eligible hedges (aggregated across all Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Under the interim final rule, an FDICsupervised institution must calculate VaRCVAunstressed using CVAUnstressed and VaRCVAstressed using CVAStressed. To calculate the CVAUnstressed measure in Formula 3a, an FDIC-supervised institution must use the EE for a counterparty calculated using current market data to compute current exposures and estimate model parameters using the historical observation period required under section 205(b)(2) of subpart F. However, if an FDIC-supervised institution uses the ‘‘shortcut’’ method described in section 324.132(d)(5) of the interim final rule to capture the effect of a collateral agreement when estimating EAD using the IMM, the FDIC-supervised institution must calculate the EE for the counterparty using that method and keep that EE constant with the maturity equal to the maximum of half of the longest maturity occurring in the netting set, and the notional weighted average maturity of all transactions in the netting set. To calculate the CVAStressed measure in Formula 3a, the interim final rule requires an FDIC-supervised institution to use the EE for a counterparty calculated using the stress calibration of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the IMM. However, if an FDICsupervised institution uses the ‘‘shortcut’’ method described in section 324.132(d)(5) of the interim final rule to capture the effect of a collateral agreement when estimating EAD using the IMM, the FDIC-supervised institution must calculate the EE for the counterparty using that method and keep that EE constant with the maturity equal to the greater of half of the longest maturity occurring in the netting set with the notional amount equal to the weighted average maturity of all transactions in the netting set. Consistent with Basel III, the interim final rule requires an FDIC-supervised institution to calibrate the VaR model inputs to historical data from the most severe twelve-month stress period contained within the three-year stress period used to calculate EE. However, the FDIC retains the flexibility to require an FDIC-supervised institution to use a different period of significant financial stress in the calculation of the CVAStressed measure that better reflects actual historic losses of the portfolio. Under the interim final rule, an FDICsupervised institution’s VaR model is required to capture the basis between the spreads of the index that is used as PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 the hedging instrument and the hedged counterparty exposure over various time periods, including benign and stressed environments. If the VaR model does not capture that basis, the FDICsupervised institution is permitted to reflect only 50 percent of the notional amount of the CDSind hedge in the VaR model. 5. Cleared Transactions (Central Counterparties) As discussed more fully in section VIII.E of this preamble on cleared transactions under the standardized approach, CCPs help improve the safety and soundness of the derivatives and repo-style transaction markets through the multilateral netting of exposures, establishment and enforcement of collateral requirements, and market transparency. Similar to the changes to the cleared transaction treatment in the subpart D of the interim final rule, the requirements regarding the cleared transaction framework in the subpart E has been revised to reflect the material changes from the BCBS CCP interim framework. Key changes from the CCP interim framework, include: (1) Allowing a clearing member FDICsupervised institution to use a reduced E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.013</GPH> emcdonald on DSK67QTVN1PROD with RULES2 55456 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 margin period of risk when using the IMM or a scaling factor of no less than 0.71 180 when using the CEM in the calculation of its EAD for client-facing derivative trades; (2) updating the risk weights applicable to a clearing member FDIC-supervised institution’s exposures when the clearing member FDICsupervised institution guarantees QCCP performance; (3) permitting clearing member FDIC-supervised institutions to choose from one of two approaches for determining the capital requirement for exposures to default fund contributions; and (4) updating the CEM formula to recognize netting to a greater extent for purposes of calculating its risk-weighted asset amount for default fund contributions. Additionally, changes in response to comments received on the proposal, as discussed in detail in section VIII.E of this preamble with respect to cleared transactions in the standardized approach, are also reflected in the interim final rule for advanced approaches. FDIC-supervised institutions seeking more information on the changes relating to the material elements of the BCBS CCP interim framework and the comments received should refer to section VIII.E of this preamble. 6. Stress Period for Own Estimates During the recent financial crisis, increased volatility in the value of collateral led to higher counterparty exposures than estimated by banking organizations. Under the collateral haircut approach in the advanced approaches interim final rule, consistent with the proposal, an FDIC-supervised institution that receives prior approval from the FDIC may calculate market price and foreign exchange volatility using own internal estimates. In response to the increased volatility experienced during the crisis, however, the interim final rule modifies the quantitative standards for approval by requiring FDIC-supervised institutions to base own internal estimates of haircuts on a historical observation period that reflects a continuous 12month period of significant financial stress appropriate to the security or category of securities. As described in section VIII.F of this preamble with respect to the standardized approach, an FDIC-supervised institution is also required to have policies and procedures that describe how it determines the period of significant 180 See Table 20 in section VIII.E of this preamble. Consistent with the scaling factor for the CEM in Table 20, an advanced approaches FDIC-supervised institution may reduce the margin period of risk when using the IMM to no shorter than 5 days. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 55457 financial stress used to calculate the FDIC-supervised institution’s own internal estimates, and must be able to provide empirical support for the period used. To ensure an appropriate level of conservativeness, in certain circumstances the FDIC may require an FDIC-supervised institution to use a different period of significant financial stress in the calculation of own internal estimates for haircuts. The FDIC is adopting this aspect of the proposal without change. proposed requirements for qualifying operational risk mitigants, which among other criteria, must be provided by an unaffiliated company that the FDICsupervised institution deems to have strong capacity to meet its claims payment obligations and the obligor rating category to which the FDICsupervised institution assigns the company is assigned a PD equal to or less than 10 basis points. B. Removal of Credit Ratings Consistent with the proposed rule and section 939A of the Dodd-Frank Act, the interim final rule includes a number of changes to definitions in the advanced approaches rule that currently reference credit ratings.181 These changes are consistent with the alternative standards included in the Standardized Approach and alternative standards that already have been implemented in the FDIC’s market risk rule. In addition, the interim final rule includes necessary changes to the hierarchy for risk weighting securitization exposures necessitated by the removal of the ratings-based approach, as described further below. In certain instances, the interim final rule uses an ‘‘investment grade’’ standard that does not rely on credit ratings. Under the interim final rule and consistent with the market risk rule, investment grade means that the entity to which the FDIC-supervised institution is exposed through a loan or security, or the reference entity with respect to a credit derivative, has adequate capacity to meet financial commitments for the projected life of the asset or exposure. Such an entity or reference entity has adequate capacity to meet financial commitments if the risk of its default is low and the full and timely repayment of principal and interest is expected. The FDIC is largely finalizing the proposed alternatives to ratings as proposed. Consistent with the proposal, the FDIC is retaining the standards used to calculate the PFE for derivative contracts (as set forth in Table 2 of the interim final rule), which are based in part on whether the counterparty satisfies the definition of investment grade under the interim final rule. The FDIC is also finalizing as proposed the term ‘‘eligible double default guarantor,’’ which is used for purposes of determining whether an FDICsupervised institution may recognize a guarantee or credit derivative under the credit risk mitigation framework. In addition, the FDIC is finalizing the Previously, to be an eligible securitization guarantor under the advanced approaches rule, a guarantor was required to meet a number of criteria. For example, the guarantor must have issued and outstanding an unsecured long-term debt security without credit enhancement that has a long-term applicable external rating in one of the three highest investmentgrade rating categories. The interim final rule replaces the term ‘‘eligible securitization guarantor’’ with the term ‘‘eligible guarantor,’’ which includes certain entities that have issued and outstanding unsecured debt securities without credit enhancement that are investment grade. Comments and modifications to the definition of eligible guarantor are discussed below and in section VIII.F of this preamble. 181 See PO 00000 76 FR 79380 (Dec. 21, 2011). Frm 00119 Fmt 4701 Sfmt 4700 1. Eligible Guarantor 2. Money Market Fund Approach Previously, under the money market fund approach in the advanced approaches rule, banking organizations were permitted to assign a 7 percent risk weight to exposures to money market funds that were subject to SEC rule 2a– 7 and that had an applicable external rating in the highest investment grade rating category. The proposed rule eliminated the money market fund approach. Commenters stated that the elimination of the existing 7 percent risk weight for equity exposures to money market funds would result in an overly stringent treatment for those exposures under the remaining look-through approaches. However, during the recent financial crisis, several money market funds demonstrated elevated credit risk that is not consistent with a low 7 percent risk weight. Accordingly, the FDIC believes it is appropriate to eliminate the preferential risk weight for money market fund investments. As a result of the changes, an FDICsupervised institution must use one of the three alternative approaches under section 154 of the interim final rule to determine the risk weight for its exposures to a money market fund. E:\FR\FM\10SER2.SGM 10SER2 55458 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 3. Modified Look-Through Approaches for Equity Exposures to Investment Funds Under the proposal, risk weights for equity exposures under the simple modified look-through approach would have been based on the highest risk weight assigned to the exposure under the standardized approach (subpart D) based on the investment limits in the fund’s prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. As discussed in the preamble regarding the standardized approach, commenters expressed concerns regarding their ability to implement the look-through approaches for investment funds that hold securitization exposures. However, the FDIC believes that FDIC-supervised institutions should be aware of the nature of the investments in a fund in which the organization invests. To the extent that information is not available, the treatment in the interim final rule will create incentives for FDICsupervised institutions to obtain the information necessary to compute riskbased capital requirements under the approach. These incentives are consistent with the FDIC’s supervisory aim that FDIC-supervised institutions have sufficient understanding of the characteristics and risks of their investments. emcdonald on DSK67QTVN1PROD with RULES2 C. Revisions to the Treatment of Securitization Exposures 1. Definitions As discussed in section VIII.H of this preamble with respect to the standardized approach, the proposal introduced a new definition for resecuritization exposures consistent with the 2009 Enhancements and broadened the definition of a securitization exposure. In addition, the agencies proposed to amend the existing definition of traditional securitization in order to exclude certain types of investment firms from treatment under the securitization framework. Consistent with the approach taken with respect to the standardized approach, the proposed definitions under the securitization framework in the advanced approach are largely included in the interim final rule as proposed, except for changes described below. Banking organizations should refer to part VIII.H of this preamble for further discussion of these comments. In response to the proposed definition of traditional securitization, commenters generally agreed with the proposed exemptions from the definition and requested that the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 agencies provide exemptions for exposures to a broader set of investment firms, such as pension funds operated by state and local governments. In view of the comments regarding pension funds, the interim final rule, as described in part VIII.H of this preamble, excludes from the definition of traditional securitization a ‘‘governmental plan’’ (as defined in 29 U.S.C. 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code. In response to the proposed definition of resecuritization, commenters requested clarification regarding its potential scope of application to exposures that they believed should not be considered resecuritizations. In response, the FDIC has amended the definition of resecuritization by excluding securitizations that feature retranching of a single exposure. In addition, the FDIC notes that for purposes of the interim final rule, a resecuritization does not include passthrough securities that have been pooled together and effectively re-issued as tranched securities. This is because the pass-through securities do not tranche credit protection and, as a result, are not considered securitization exposures under the interim final rule. Previously, under the advanced approaches rule issued in 2007, the definition of eligible securitization guarantor included, among other entities, any entity (other than a securitization SPE) that has issued and has outstanding an unsecured long-term debt security without credit enhancement that has a long-term applicable external rating in one of the three highest investment-grade rating categories, or has a PD assigned by the banking organization that is lower than or equal to the PD associated with a long-term external rating in the third highest investment-grade category. The interim final rule removes the existing references to ratings from the definition of an eligible guarantor (the new term for an eligible securitization guarantor) and finalizes the requirements as proposed, as described in section VIII.F of this preamble. During the recent financial crisis, certain guarantors of securitization exposures had difficulty honoring those guarantees as the financial condition of the guarantors deteriorated at the same time as the guaranteed exposures experienced losses. Consistent with the proposal, a guarantor is not an eligible guarantor under the interim final rule if the guarantor’s creditworthiness is positively correlated with the credit risk of the exposures for which it has provided guarantees. In addition, PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 insurance companies engaged predominately in the business of providing credit protection are not eligible guarantors. Further discussion can be found in section VIII.F of this preamble. 2. Operational Criteria for Recognizing Risk Transference in Traditional Securitizations The proposal outlined certain operational requirements for traditional securitizations that had to be met in order to apply the securitization framework. Consistent with the standardized approach as discussed in section VIII.H of this preamble, the interim final rule includes the operational criteria for recognizing risk transference in traditional securitizations largely as proposed. 3. The Hierarchy of Approaches Consistent with section 939A of the Dodd-Frank Act, the proposed rule removed the ratings-based approach (RBA) and internal assessment approach for securitization exposures. The interim final rule includes the hierarchy largely as proposed. Under the interim final rule, the hierarchy for securitization exposures is as follows: (1) An FDIC-supervised institution is required to deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from a securitization and apply a 1,250 percent risk weight to the portion of a CEIO that does not constitute after-tax gain-on-sale. (2) If a securitization exposure does not require deduction, an FDICsupervised institution is required to assign a risk weight to the securitization exposure using the SFA. The FDIC expects FDIC-supervised institutions to use the SFA rather than the SSFA in all instances where data to calculate the SFA is available. (3) If the FDIC-supervised institution cannot apply the SFA because not all the relevant qualification criteria are met, it is allowed to apply the SSFA. An FDIC-supervised institution should be able to explain and justify (for example, based on data availability) to the FDIC any instances in which the FDICsupervised institution uses the SSFA rather than the SFA for its securitization exposures. The SSFA, described in detail in part VIII.H of this preamble, is similar in construct and function to the SFA. An FDIC-supervised institution needs several inputs to calculate the SSFA. The first input is the weighted-average capital requirement calculated under the standardized approach that applies to the underlying exposures as if they are held directly by the FDIC-supervised E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 institution. The second and third inputs indicate the position’s level of subordination and relative size within the securitization. The fourth input is the level of delinquencies experienced on the underlying exposures. An FDICsupervised institution must apply the hierarchy of approaches in section 142 of this interim final rule to determine which approach it applies to a securitization exposure. The SSFA is included in this interim final rule as proposed, with the exception of some modifications to the delinquency parameter, as discussed in part VIII.H of this preamble. 4. Guarantees and Credit Derivatives Referencing a Securitization Exposure The current advanced approaches rule includes methods for calculating riskweighted assets for nth-to-default credit derivatives, including first-to-default credit derivatives and second-orsubsequent-to-default credit derivatives.182 The current advanced approaches rule, however, does not specify how to treat guarantees or credit derivatives (other than nth-to-default credit derivatives) purchased or sold that reference a securitization exposure. Accordingly, the proposal included specific treatment for credit protection purchased or provided in the form of a guarantee or credit derivative (other than an nth-to-default credit derivative) that references a securitization exposure. For a guarantee or credit derivative (other than an nth-to-default credit derivative) where the FDIC-supervised institution has provided protection, the interim final rule requires an FDICsupervised institution providing credit protection to determine the risk-based capital requirement for the guarantee or credit derivative as if it directly holds the portion of the reference exposure covered by the guarantee or credit derivative. The FDIC-supervised institution calculates its risk-based capital requirement for the guarantee or credit derivative by applying either (1) the SFA as provided in section 324.143 of the interim final rule to the reference exposure if the FDIC-supervised institution and the reference exposure qualify for the SFA; or (2) the SSFA as provided in section 324.144 of the interim final rule. If the guarantee or credit derivative and the reference securitization exposure do not qualify 182 Nth-to-default credit derivative means a credit derivative that provides credit protection only for the nth-defaulting reference exposure in a group of reference exposures. See 12 CFR part 325, appendix D, section 42(l) (state nonmember banks), and 12 CFR part 390, subpart Z, appendix A, section 42(l) (state savings associations). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 for the SFA, or the SSFA, the FDICsupervised institution is required to assign a 1,250 percent risk weight to the notional amount of protection provided under the guarantee or credit derivative. The interim final rule also clarifies how an FDIC-supervised institution may recognize a guarantee or credit derivative (other than an nth-to-default credit derivative) purchased as a credit risk mitigant for a securitization exposure held by the FDIC-supervised institution. An FDIC-supervised institution that purchases an OTC credit derivative (other than an nth-to-default credit derivative) that is recognized as a credit risk mitigant for a securitization exposure that is not a covered position under the market risk rule is not required to compute a separate counterparty credit risk capital requirement provided that the FDICsupervised institution does so consistently for all such credit derivatives. The FDIC-supervised institution must either include all or exclude all such credit derivatives that are subject to a qualifying master netting agreement from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. If an FDIC-supervised institution cannot, or chooses not to, recognize a credit derivative that is a securitization exposure as a credit risk mitigant, the FDIC-supervised institution must determine the exposure amount of the credit derivative under the treatment for OTC derivatives in section 324.132. If the FDIC-supervised institution purchases the credit protection from a counterparty that is a securitization, the FDIC-supervised institution must determine the risk weight for counterparty credit risk according to the securitization framework. If the FDICsupervised institution purchases credit protection from a counterparty that is not a securitization, the FDICsupervised institution must determine the risk weight for counterparty credit risk according to general risk weights under section 324.131. 5. Due Diligence Requirements for Securitization Exposures As the recent financial crisis unfolded, weaknesses in exposures underlying securitizations became apparent and resulted in NRSROs downgrading many securitization exposures held by banking organizations. The agencies found that many banking organizations relied on NRSRO ratings as a proxy for the credit quality of securitization exposures they purchased and held without conducting their own sufficient independent credit PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 55459 analysis. As a result, some banking organizations did not have sufficient capital to absorb the losses attributable to these exposures. Accordingly, consistent with the 2009 Enhancements, the proposed rule introduced due diligence requirements that banking organizations would be required to undertake to use the SFA or SSFA. Comments received regarding the proposed due diligence requirements and the rationale for adopting the proposed treatment in the interim final rule are discussed in part VIII of the preamble. 6. Nth-to-Default Credit Derivatives Consistent with the proposal, the interim final rule provides that an FDICsupervised institution that provides credit protection through an nth-todefault derivative must assign a risk weight to the derivative using the SFA or the SSFA. In the case of credit protection sold, an FDIC-supervised institution must determine its exposure in the nth-to-default credit derivative as the largest notional dollar amount of all the underlying exposures. When applying the SSFA to protection provided in the form of an nth-to-default credit derivative, the attachment point (parameter A) is the ratio of the sum of the notional amounts of all underlying exposures that are subordinated to the FDIC-supervised institution’s exposure to the total notional amount of all underlying exposures. For purposes of applying the SFA, parameter A is set equal to the credit enhancement level (L) used in the SFA formula. In the case of a first-todefault credit derivative, there are no underlying exposures that are subordinated to the FDIC-supervised institution’s exposure. In the case of a second-or-subsequent-to default credit derivative, the smallest (n-1) underlying exposure(s) are subordinated to the FDIC-supervised institution’s exposure. Under the SSFA, the detachment point (parameter D) is the sum of the attachment point and the ratio of the notional amount of the FDIC-supervised institution’s exposure to the total notional amount of the underlying exposures. Under the SFA, Parameter D is set to equal L plus the thickness of the tranche (T) under the SFA formula. An FDIC-supervised institution that does not use the SFA or SSFA to calculate a risk weight for an nth-to-default credit derivative must assign a risk weight of 1,250 percent to the exposure. For the treatment of protection purchased through a first-to-default credit derivative, an FDIC-supervised institution must determine its risk-based capital requirement for the underlying E:\FR\FM\10SER2.SGM 10SER2 55460 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations exposures as if the FDIC-supervised institution had synthetically securitized the underlying exposure with the lowest risk-based capital requirement and had obtained no credit risk mitigant on the other underlying exposures. An FDICsupervised institution must calculate a risk-based capital requirement for counterparty credit risk according to section 132 of the interim final rule for a first-to-default credit derivative that does not meet the rules of recognition for guarantees and credit derivatives under section 324.134(b). For second-or-subsequent-to default credit derivatives, an FDIC-supervised institution that obtains credit protection on a group of underlying exposures through a nth-to-default credit derivative that meets the rules of recognition of section 324.134(b) of the interim final rule (other than a first-to-default credit derivative) is permitted to recognize the credit risk mitigation benefits of the derivative only if the FDIC-supervised institution also has obtained credit protection on the same underlying exposures in the form of first-through(n-1)-to-default credit derivatives; or if n-1 of the underlying exposures have already defaulted. If an FDIC-supervised institution satisfies these requirements, the FDIC-supervised institution determines its risk-based capital requirement for the underlying exposures as if the FDIC-supervised institution had only synthetically securitized the underlying exposure with the nth smallest risk-based capital requirement and had obtained no credit risk mitigant on the other underlying exposures. An FDIC-supervised institution that does not fulfill these requirements must calculate a riskbased capital requirement for counterparty credit risk according to section 132 of the interim final rule for a nth-to-default credit derivative that does not meet the rules of recognition of section 134(b) of the interim final rule. emcdonald on DSK67QTVN1PROD with RULES2 D. Treatment of Exposures Subject to Deduction Under the current advanced approaches rule, an FDIC-supervised institution is required to deduct certain exposures from total capital, including securitization exposures such as CEIOs, low-rated securitization exposures, and high-risk securitization exposures subject to the SFA; eligible credit reserves shortfall; and certain failed capital markets transactions. Consistent with Basel III, the proposed rule required a banking organization to assign a 1,250 percent risk weight to many exposures that previously were deducted from capital. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 In the proposal, the agencies noted that such treatment would not be equivalent to a deduction from tier 1 capital, as the effect of a 1,250 percent risk weight would depend on an individual banking organization’s current risk-based capital ratios. Specifically, when a risk-based capital ratio (either tier 1 or total risk-based capital) exceeds 8.0 percent, the effect on that risk-based capital ratio of assigning an exposure a 1,250 percent risk weight would be more conservative than a deduction from total capital. The more a risk-based capital ratio exceeds 8.0 percent, the harsher is the effect of a 1,250 percent risk weight on riskbased capital ratios. Commenters acknowledged these points and asked the agencies to replace the 1,250 percent risk weight with the maximum risk weight that would correspond with deduction. Commenters also stated that the agencies should consider the effect of the 1,250 percent risk weight given that the Basel III proposals, over time, would require banking organizations to maintain a total risk-based capital ratio of at least 10.5 percent to meet the minimum required capital ratio plus the capital conservation buffer. The FDIC is finalizing the requirements as proposed, in order to provide for comparability in riskweighted asset measurements across institutions. The FDIC did not propose to apply a 1,250 percent risk weight to those exposures currently deducted from tier 1 capital under the advanced approaches rule. For example, the agencies proposed that an after-tax gainon-sale that is deducted from tier 1 under the advanced approaches rule be deducted from common equity tier 1 under the proposed rule. In this regard, the agencies also clarified that any asset deducted from common equity tier 1, tier 1, or tier 2 capital under the advanced approaches rule would not be included in the measure of riskweighted assets under the advanced approaches rule. The interim final rule includes these requirements as proposed. E. Technical Amendments to the Advanced Approaches Rule In the proposed rule, the agencies introduced a number of amendments to the advanced approaches rule that were designed to refine and clarify certain aspects of the rule’s implementation. The interim final rule includes each of these technical amendments as proposed. Additionally, in the interim final rule, the FDIC is amending the treatment of defaulted exposures that are covered by government guarantees. PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 Each of these revisions is described below. 1. Eligible Guarantees and Contingent U.S. Government Guarantees In order to be recognized as an eligible guarantee under the advanced approaches rule, the guarantee, among other criteria, must be unconditional. The FDIC notes that this definition would exclude certain guarantees provided by the U.S. Government or its agencies that would require some action on the part of the FDIC-supervised institution or some other third party. However, based on their risk characteristics, the FDIC believes that these guarantees should be recognized as eligible guarantees. Therefore, the FDIC is amending the definition of eligible guarantee so that it explicitly includes a contingent obligation of the U.S. Government or an agency of the U.S. Government, the validity of which is dependent on some affirmative action on the part of the beneficiary or a third party (for example, servicing requirements) irrespective of whether such contingent obligation is otherwise considered a conditional guarantee. Related to the change to the eligible guarantee definition, the FDIC has amended the provision in the advanced approaches rule pertaining to the 10 percent floor on the LGD for residential mortgage exposures. Currently, the rule provides that the LGD for each segment of residential mortgage exposures (other than segments of residential mortgage exposures for which all or substantially all of the principal of each exposure is directly and unconditionally guaranteed by the full faith and credit of a sovereign entity) may not be less than 10 percent. The provision would therefore require a 10 percent LGD floor on segments of residential mortgage exposures for which all or substantially all of the principal are conditionally guaranteed by the U.S. government. The interim final rule allows an exception from the 10 percent floor in such cases. 2. Calculation of Foreign Exposures for Applicability of the Advanced Approaches—Changes to Federal Financial Institutions Economic Council 009 The FDIC is revising the advanced approaches rule to comport with changes to the FFIEC’s Country Exposure Report (FFIEC 009) that occurred after the issuance of the advanced approaches rule in 2007. Specifically, the FFIEC 009 replaced the term ‘‘local country claims’’ with the term ‘‘foreign-office claims.’’ Accordingly, the FDIC has made a similar change under section 100, the E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations section of the interim final rule that makes the rules applicable to an FDICsupervised institution that has consolidated total on-balance sheet foreign exposures equal to $10 billion or more. As a result, to determine total onbalance sheet foreign exposure, an FDIC-supervised institution sums its adjusted cross-border claims, local country claims, and cross-border revaluation gains calculated in accordance with FFIEC 009. Adjusted cross-border claims equal total crossborder claims less claims with the head office or guarantor located in another country, plus redistributed guaranteed amounts to the country of the head office or guarantor. emcdonald on DSK67QTVN1PROD with RULES2 3. Applicability of the Interim Final Rule The FDIC believes that once an FDICsupervised institution reaches the asset size or level of foreign activity that causes it to become subject to the advanced approaches that it should remain subject to the advanced approaches rule even if it subsequently drops below the asset or foreign exposure threshold. The FDIC believes that it is appropriate for it to evaluate whether an FDIC-supervised institution’s business or risk exposure has changed after dropping below the thresholds in a manner that it would no longer be appropriate for the FDICsupervised institution to be subject to the advanced approaches. As a result, consistent with the proposal, the interim final rule clarifies that once an FDIC-supervised institution is subject to the advanced approaches rule under subpart E, it remains subject to subpart E until the FDIC determines that application of the rule would not be appropriate in light of the FDICsupervised institution’s asset size, level of complexity, risk profile, or scope of operations. In connection with the consideration of an FDIC-supervised institution’s level of complexity, risk profile, and scope of operations, the FDIC also may consider an FDICsupervised institution’s interconnectedness and other relevant risk-related factors. 4. Change to the Definition of Probability of Default Related to Seasoning The advanced approaches rule requires an upward adjustment to estimated PD for segments of retail exposures for which seasoning effects are material. The rationale underlying this requirement was the seasoning pattern displayed by some types of retail exposures—that is, the exposures have very low default rates in their first year, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 rising default rates in the next few years, and declining default rates for the remainder of their terms. Because of the one-year internal ratings-based (IRB) default horizon, capital based on the very low PDs for newly originated, or ‘‘unseasoned,’’ loans would be insufficient to cover the elevated risk in subsequent years. The upward seasoning adjustment to PD was designed to ensure that banking organizations would have sufficient capital when default rates for such segments rose predictably beginning in year two. Since the issuance of the advanced approaches rule, the FDIC has found the seasoning provision to be problematic. First, it is difficult to ensure consistency across institutions, given that there is no guidance or criteria for determining when seasoning is ‘‘material’’ or what magnitude of upward adjustment to PD is ‘‘appropriate.’’ Second, the advanced approaches rule lacks flexibility by requiring an upward PD adjustment whenever there is a significant relationship between a segment’s default rate and its age (since origination). For example, the upward PD adjustment may be inappropriate in cases where (1) the outstanding balance of a segment is falling faster over time (due to defaults and prepayments) than the default rate is rising; (2) the age (since origination) distribution of a portfolio is stable over time; or (3) where the loans in a segment are intended, with a high degree of certainty, to be sold or securitized within a short time period. Therefore, consistent with the proposal, the FDIC is deleting the regulatory seasoning provision and will instead consider seasoning when evaluating an FDIC-supervised institution’s assessment of its capital adequacy from a supervisory perspective. In addition to the difficulties in applying the advanced approaches rule’s seasoning requirements discussed above, the FDIC believes that seasoning is more appropriately considered from a supervisory perspective. First, seasoning involves the determination of minimum required capital for a period in excess of the 12-month time horizon implicit in the advanced approaches risk-based capital ratio calculations. It thus falls more appropriately under longer-term capital planning and capital adequacy, which are major focal points of the internal capital adequacy assessment process. Second, seasoning is a major issue only where an FDIC-supervised institution has a concentration of unseasoned loans. The risk-based capital ratios do not take concentrations PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 55461 of any kind into account; however, they are an explicit factor in the internal capital adequacy assessment process. 5. Cash Items in Process of Collection Under the current advanced approaches rule, cash items in the process of collection are not assigned a risk-based capital treatment and, as a result, are subject to a 100 percent risk weight. Under the interim final rule, consistent with the proposal, the FDIC is revising the advanced approaches rule to risk weight cash items in the process of collection at 20 percent of the carrying value, as the FDIC believes that this treatment is more commensurate with the risk of these exposures. A corresponding provision is included in section 324.32 of the interim final rule. 6. Change to the Definition of Qualifying Revolving Exposure The agencies proposed modifying the definition of qualifying revolving exposure (QRE) such that certain unsecured and unconditionally cancellable exposures where a banking organization consistently imposes in practice an upper exposure limit of $100,000 and requires payment in full every cycle would qualify as QRE. Under the previous definition in the advanced approaches rule, only unsecured and unconditionally cancellable revolving exposures with a pre-established maximum exposure amount of $100,000 or less (such as credit cards) were classified as QRE. Unsecured, unconditionally cancellable exposures that require payment in full and have no communicated maximum exposure amount (often referred to as ‘‘charge cards’’) were instead classified as ‘‘other retail.’’ For risk-based capital purposes, this classification was material and generally results in substantially higher minimum required capital to the extent that the exposure’s asset value correlation (AVC) would differ if classified as QRE (where it is assigned an AVC of 4 percent) or other retail (where AVC varies inversely with through-the-cycle PD estimated at the segment level and can go as high as almost 16 percent for very low PD segments). Under the proposed definition, certain charge card products would qualify as QRE. Charge card exposures may be viewed as revolving in that there is an ability to borrow despite a requirement to pay in full. Commenters agreed that charge cards should be included as QRE because, compared to credit cards, they generally exhibit lower loss rates and loss volatility. Where an FDIC-supervised institution consistently imposes in practice an E:\FR\FM\10SER2.SGM 10SER2 55462 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 upper exposure limit of $100,000 the FDIC believes that charge cards are more closely aligned from a risk perspective with credit cards than with any type of ‘‘other retail’’ exposure and is therefore amending the definition of QRE in order to more appropriately capture such products under the definition of QRE. With respect to a product with a balance that the borrower is required to pay in full every month, the exposure would qualify as QRE under the interim final rule as long as its balance does not in practice exceed $100,000. If the balance of an exposure were to exceed that amount, it would represent evidence that such a limit is not maintained in practice for the segment of exposures in which that exposure is placed for risk parameter estimation purposes. As a result, that segment of exposures would not qualify as QRE over the next 24 month period. In addition, the FDIC believes that the definition of QRE should be sufficiently flexible to encompass products with new features that were not envisioned at the time of finalizing the advanced approaches rule, provided, however, that the FDICsupervised institution can demonstrate to the satisfaction of the FDIC that the performance and risk characteristics (in particular the volatility of loss rates over time) of the new product are consistent with the definition and requirements of QRE portfolios. 7. Trade-Related Letters of Credit In 2011, the BCBS revised the Basel II advanced internal ratings-based approach to remove the one-year maturity floor for trade finance instruments. Consistent with this revision, the proposed rule specified that an exposure’s effective maturity must be no greater than five years and no less than one year, except that an exposure’s effective maturity must be no less than one day if the exposure is a trade-related letter of credit, or if the exposure has an original maturity of less than one year and is not part of a banking organization’s ongoing financing of the obligor. Commenters requested clarification on whether short-term self-liquidating trade finance instruments would be considered exempt from the one-year maturity floor, as they do not constitute an ongoing financing of the obligor. In addition, commenters stated that applying the proposed framework for AVCs to trade-related letters of credit would result in banking organizations maintaining overly conservative capital requirements in relation to the risk of trade finance exposures, which could reduce the availability of trade finance and increase the cost of providing trade VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 finance for businesses globally. As a result, commenters requested that trade finance exposures be assigned a separate AVC that would better reflect the product’s low default rates and low correlation. The FDIC believes that, in light of the removal of the one-year maturity floor, the proposed requirements for traderelated letters of credit are appropriate without a separate AVC. The interim final rule includes the treatment of trade-related letters of credit as proposed. Under the interim final rule, trade finance exposures that meet the stated requirements above may be assigned a maturity lower than one year. Section 324.32 of the interim final rule includes a provision that similarly recognizes the low default rates of these exposures. 8. Defaulted Exposures That Are Guaranteed by the U.S. Government Under the current advanced approaches rule, a banking organization is required to apply an 8.0 percent capital requirement to the EAD for each wholesale exposure to a defaulted obligor and for each segment of defaulted retail exposures. The advanced approaches rule does not recognize yet-to-be paid protection in the form of guarantees or insurance on defaulted exposures. For example, under certain programs, a U.S. government agency that provides a guarantee or insurance is not required to pay on claims on exposures to defaulted obligors or segments of defaulted retail exposures until the collateral is sold. The time period from default to sale of collateral can be significant and the exposure amount covered by such U.S. sovereign guarantees or insurance can be substantial. In order to make the treatment for exposures to defaulted obligors and segments of defaulted retail exposures more risk sensitive, the FDIC has decided to amend the advanced approaches rule by assigning a 1.6 percent capital requirement to the portion of the EAD for each wholesale exposure to a defaulted obligor and each segment of defaulted retail exposures that is covered by an eligible guarantee from the U.S. government. The portion of the exposure amount for each wholesale exposure to a defaulted obligor and each segment of defaulted retail exposures not covered by an eligible guarantee from the U.S. government continues to be assigned an 8.0 percent capital requirement. 9. Stable Value Wraps The FDIC is clarifying that an FDICsupervised institution that provides PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 stable value protection, such as through a stable value wrap that has provisions and conditions that minimize the wrap’s exposure to credit risk of the underlying assets in the fund, must treat the exposure as if it were an equity derivative on an investment fund and determine the adjusted carrying value of the exposure as the sum of the adjusted carrying values of any on-balance sheet asset component determined according to section 324.151(b)(1) and the offbalance sheet component determined according to section 324.151(b)(2). That is, the adjusted carrying value is the effective notional principal amount of the exposure, the size of which is equivalent to a hypothetical on-balance sheet position in the underlying equity instrument that would evidence the same change in fair value (measured in dollars) given a small change in the price of the underlying equity instrument without subtracting the adjusted carrying value of the onbalance sheet component of the exposure as calculated under the same paragraph. Risk-weighted assets for such an exposure is determined by applying one of the three look-through approaches as provided in section 324.154 of the interim final rule. 10. Treatment of Pre-Sold Construction Loans and Multi-Family Residential Loans The interim final rule assigns either a 50 percent or a 100 percent risk weight to certain one-to-four family residential pre-sold construction loans under the advanced approaches rule, consistent with provisions of the RTCRRI Act.183 This treatment is consistent with the treatment under the general risk-based capital rules and under the standardized approach. F. Pillar 3 Disclosures 1. Frequency and Timeliness of Disclosures For purposes of the interim final rule, an FDIC-supervised institution is required to provide certain qualitative and quantitative public disclosures on a quarterly, or in some cases, annual basis, and these disclosures must be ‘‘timely.’’ Qualitative disclosures that provide a general summary of an FDICsupervised institution’s riskmanagement objectives and policies, reporting system, and definitions may be disclosed annually after the end of the fourth calendar quarter, provided any significant changes are disclosed in the interim. In the preamble to the advanced approaches rule, the FDIC 183 See E:\FR\FM\10SER2.SGM 12 U.S.C. 1831n, note. 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 indicated that quarterly disclosures would be timely if they were provided within 45 days after calendar quarterend. The preamble did not specify expectations regarding annual disclosures. The FDIC acknowledges that timing of disclosures required under the federal banking laws may not always coincide with the timing of disclosures under other federal laws, including federal securities laws and their implementing regulations by the SEC. The FDIC also indicated that an FDIC-supervised institution may use disclosures made pursuant to SEC, regulatory reporting, and other disclosure requirements to help meet its public disclosure requirements under the advanced approaches rule. For calendar quarters that do not correspond to fiscal year end, the FDIC considers those disclosures that are made within 45 days of the end of the calendar quarter (or within 60 days for the limited purpose of the FDIC-supervised institution’s first reporting period in which it is subject to the public disclosure requirements) as timely. In general, where an FDIC-supervised institution’s fiscal year-end coincides with the end of a calendar quarter, the FDIC considers qualitative and quantitative disclosures to be timely if they are made no later than the applicable SEC disclosure deadline for the corresponding Form 10–K annual report. In cases where an institution’s fiscal year end does not coincide with the end of a calendar quarter, the FDIC would consider the timeliness of disclosures on a case-by-case basis. In some cases, management may determine that a significant change has occurred, such that the most recent reported amounts do not reflect the FDICsupervised institution’s capital adequacy and risk profile. In those cases, an FDIC-supervised institution needs to disclose the general nature of these changes and briefly describe how they are likely to affect public disclosures going forward. An FDICsupervised institution should make these interim disclosures as soon as practicable after the determination that a significant change has occurred. 2. Enhanced Securitization Disclosure Requirements In view of the significant market uncertainty during the recent financial crisis caused by the lack of disclosures regarding banking organizations’ securitization-related exposures, the FDIC believes that enhanced disclosure requirements are appropriate. Consistent with the disclosures introduced by the 2009 Enhancements, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the proposal amended the qualitative section for Table 9 disclosures (Securitization) under section 324.173 to include the following: D The nature of the risks inherent in a banking organization’s securitized assets, D A description of the policies that monitor changes in the credit and market risk of a banking organization’s securitization exposures, D A description of a banking organization’s policy regarding the use of credit risk mitigation for securitization exposures, D A list of the special purpose entities a banking organization uses to securitize exposures and the affiliated entities that a bank manages or advises and that invest in securitization exposures or the referenced SPEs, and D A summary of the banking organization’s accounting policies for securitization activities. To the extent possible, the FDIC is implementing the disclosure requirements included in the 2009 Enhancements in the interim final rule. However, consistent with section 939A of the Dodd-Frank Act, the tables do not include those disclosure requirements that are tied to the use of ratings. 3. Equity Holdings That Are Not Covered Positions The current advanced approaches rule requires banking organizations to include in their public disclosures a discussion of ‘‘important policies covering the valuation of and accounting for equity holdings in the banking book.’’ Since ‘‘banking book’’ is not a defined term under the interim final rule, the FDIC refers to such exposures as equity holdings that are not covered positions in the interim final rule. XII. Market Risk Rule On August 30, 2012, the agencies revised their respective market risk rules to better capture positions subject to market risk, reduce pro-cyclicality in market risk capital requirements, enhance the rule’s sensitivity to risks that were not adequately captured under the prior regulatory measurement methodologies, and increase transparency through enhanced disclosures.184 As noted in the introduction of this preamble, the agencies proposed to expand the scope of the market risk rule to include state savings associations, and to codify the market risk rule in a manner similar to the other regulatory capital rules in the three proposals. In 184 See PO 00000 77 FR 53060 (August 30, 2012). Frm 00125 Fmt 4701 Sfmt 4700 55463 the interim final rule, consistent with the proposal, the FDIC has also merged definitions and made appropriate technical changes. As a general matter, an FDICsupervised institution that is subject to the market risk rule will continue to exclude covered positions (other than certain foreign exchange and commodities positions) when calculating its risk-weighted assets under the other risk-based capital rules. Instead, the FDIC-supervised institution must determine an appropriate capital requirement for such positions using the methodologies set forth in the final market risk rule. The banking organization then must multiply its market risk capital requirement by 12.5 to determine a risk-weighted asset amount for its market risk exposures and include that amount in its standardized approach risk-weighted assets and for an advanced approaches banking organization’s advanced approaches risk-weighted assets. The market risk rule is designed to determine capital requirements for trading assets based on general and specific market risk associated with these assets. General market risk is the risk of loss in the market value of positions resulting from broad market movements, such as changes in the general level of interest rates, equity prices, foreign exchange rates, or commodity prices. Specific market risk is the risk of loss from changes in the fair value of a position due to factors other than broad market movements, including event risk (changes in market price due to unexpected events specific to a particular obligor or position) and default risk. The agencies proposed to apply the market risk rule to state savings associations. Consistent with the proposal, the FDIC in this interim final rule has expanded the scope of the market risk rule to state savings associations that meet the stated thresholds. The market risk rule applies to any state savings association whose trading activity (the gross sum of its trading assets and trading liabilities) is equal to 10 percent or more of its total assets or $1 billion or more. The FDIC retains the authority to apply its respective market risk rule to any entity under its jurisdiction, regardless of whether it meets either of the thresholds described above, if the agency deems it necessary or appropriate for safe and sound banking practices. Application of the market risk rule to all banking organizations with material exposure to market risk is particularly important because of banking organizations’ increased exposure to E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55464 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations traded credit products, such as CDSs, asset-backed securities and other structured products, as well as other less liquid products. In fact, many of the August 2012 revisions to the market risk rule were made in response to concerns that arose during the recent financial crisis when banking organizations holding certain trading assets suffered substantial losses. For example, in addition to a market risk capital requirement to account for general market risk, the revised rules apply more conservative standardized specific risk capital requirements to most securitization positions and implement an additional incremental risk capital requirement for a banking organization that models specific risk for one or more portfolios of debt or, if applicable, equity positions. Additionally, to address concerns about the appropriate treatment of traded positions that have limited price transparency, a banking organization subject to the market risk rule must have a well-defined valuation process for all covered positions. The FDIC received comments on the market risk rule. One commenter asserted that the agencies should establish standardized capital requirements for trading operations rather than relying on risk modeling techniques because there is no way for regulators or market participants to judge whether bank calculations of market risk are meaningful. Regarding the use of standardized requirements for trading operations rather than reliance on risk modeling, banking organizations’ models are subject to initial approval and ongoing review under the market risk rule. The FDIC is aware that the BCBS is considering, among other options, greater use of standardized approaches for market risk. The FDIC would consider modifications to the international market risk framework when and if it is revised. Another commenter asserted that the effective date for application of the market risk rule (and the advanced approaches rule) to SLHCs should be deferred until at least July 21, 2015. This commenter also asserted that SLHCs with substantial insurance operations should be exempt from the advanced approaches and market risk rules if their subsidiary bank or savings association comprised less than 5 percent or 10 percent of the total assets of the SLHC. As a general matter, savings associations and SLHCs do not engage in trading activity to a substantial degree. However, the FDIC believes that any state savings association whose trading activity grows to the extent that it meets either of the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 thresholds should hold capital commensurate with the risk of the trading activity and should have in place the prudential risk-management systems and processes required under the market risk rule. Therefore, it is appropriate to expand the scope of the market risk rule to apply to state savings associations as of January 1, 2015. Another commenter asserted that regulations should increase the cost of excessive use of short-term borrowing to fund long maturity assets. The FDIC is considering the implications of shortterm funding from several perspectives outside of the regulatory capital framework. Specifically, the FDIC expects short-term funding risks would be a potential area of focus in forthcoming Basel III liquidity and enhanced prudential standards regulations. The FDIC also has adopted conforming changes to certain elements of the market risk rule to reflect changes that are being made to other aspects of the regulatory capital framework. These changes are designed to correspond to the changes to the CRC references and treatment of securitization exposures under subparts D and E of the interim final rule, which are discussed more fully in the standardized and advanced approaches sections. See sections VIII.B and XII.C of this preamble for a discussion of these changes. More specifically, the market risk rule is being amended to incorporate a revised definition of parameter W in the SSFA. The agencies received comment on the existing definition, which assessed a capital penalty if borrowers exercised contractual rights to defer payment of principal or interest for more than 90 days on exposures underlying a securitization. In response to commenters, the FDIC is modifying this definition to exclude all loans issued under Federally-guaranteed student loan programs, and certain consumer loans (including nonFederally guaranteed student loans) from being included in this component of parameter W. The FDIC has made a technical amendment to the market risk rule with respect to the covered position definition. Previously, the definition of covered position excluded equity positions that are not publicly traded. The FDIC has refined this exception such that a covered position may include a position in a non-publicly traded investment company, as defined in and registered with the SEC under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) (or its non-U.S. equivalent), provided that all the underlying equities held by the PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 investment company are publicly traded. The FDIC believes that a ‘‘lookthrough’’ approach is appropriate in these circumstances because of the liquidity of the underlying positions, so long as the other conditions of a covered position are satisfied. The FDIC also has clarified where an FDIC-supervised institution subject to the market risk rule must make its required market risk disclosures and require that these disclosures be timely. The FDIC-supervised institution must provide its quantitative disclosures after each calendar quarter. In addition, the interim final rule clarifies that an FDICsupervised institution must provide its qualitative disclosures at least annually, after the end of the fourth calendar quarter, provided any significant changes are disclosed in the interim. The FDIC acknowledges that the timing of disclosures under the federal banking laws may not always coincide with the timing of disclosures required under other federal laws, including disclosures required under the federal securities laws and their implementing regulations by the SEC. For calendar quarters that do not correspond to fiscal year end, the FDIC considers those disclosures that are made within 45 days of the end of the calendar quarter (or within 60 days for the limited purpose of the FDIC-supervised institution’s first reporting period in which it is subject to the rule) as timely. In general, where an FDIC-supervised institution’s fiscal year-end coincides with the end of a calendar quarter, the FDIC considers qualitative and quantitative disclosures to be timely if they are made no later than the applicable SEC disclosure deadline for the corresponding Form 10–K annual report. In cases where an institution’s fiscal year end does not coincide with the end of a calendar quarter, the FDIC would consider the timeliness of disclosures on a case-by-case basis. In some cases, management may determine that a significant change has occurred, such that the most recent reported amounts do not reflect the FDICsupervised institution’s capital adequacy and risk profile. In those cases, an FDIC-supervised institution needs to disclose the general nature of these changes and briefly describe how they are likely to affect public disclosures going forward. An FDICsupervised institution should make these interim disclosures as soon as practicable after the determination that a significant change has occurred. The interim final rule also clarifies that an FDIC-supervised institution’s management may provide all of the disclosures required by the market risk E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations rule in one place on the FDICsupervised institution’s public Web site or may provide the disclosures in more than one public financial report or other regulatory reports, provided that the FDIC-supervised institution publicly provides a summary table specifically indicating the location(s) of all such disclosures. emcdonald on DSK67QTVN1PROD with RULES2 XIII. Abbreviations ABCP Asset-Backed Commercial Paper ADC Acquisition, Development, or Construction AFS Available For Sale ALLL Allowance for Loan and Lease Losses AOCI Accumulated Other Comprehensive Income AVC Asset Value Correlation BCBS Basel Committee on Banking Supervision BCBS FAQ Basel Committee on Banking Supervision Frequently Asked Questions BHC Bank Holding Company CCF Credit Conversion Factor CCP Central Counterparty CDFI Community Development Financial Institution CDS Credit Default Swap CDSind Index Credit Default Swap CEIO Credit-Enhancing Interest-Only Strip CEM Current Exposure Method CFR Code of Federal Regulations CFPB Consumer Financial Protection Bureau CFTC Commodity Futures Trading Commission CPSS Committee on Payment and Settlement Systems CRC Country Risk Classifications CUSIP Committee on Uniform Securities Identification Procedures CVA Credit Valuation Adjustment DAC Deferred Acquisition Cost DCO Derivatives Clearing Organizations DTA Deferred Tax Asset DTL Deferred Tax Liability DvP Delivery-versus-Payment E Measure of Effectiveness EAD Exposure at Default ECL Expected Credit Loss EE Expected Exposure EPE Expected Positive Exposure ERISA Employee Retirement Income Security Act of 1974 ESOP Employee Stock Ownership Plan FDIC Federal Deposit Insurance Corporation FDICIA Federal Deposit Insurance Corporation Improvement Act of 1991 FFIEC Federal Financial Institutions Examination Council FHA Federal Housing Administration FHLB Federal Home Loan Bank FHLMC Federal Home Loan Mortgage Corporation FIRREA Financial Institutions, Reform, Recovery and Enforcement Act FMU Financial Market Utility FNMA Federal National Mortgage Association FRFA Final Regulatory Flexibility Act GAAP U.S. Generally Accepted Accounting Principles GNMA Government National Mortgage Association VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 GSE Government-sponsored Enterprise HAMP Home Affordable Mortgage Program HOLA Home Owners’ Loan Act HTM Held-To-Maturity HVCRE High-Volatility Commercial Real Estate IFRS International Financial Reporting Standards IMM Internal Models Methodology IOSCO International Organization of Securities Commissions IRB Internal Ratings-Based IRFA Initial Regulatory Flexibility Analysis LGD Loss Given Default LTV Loan-to-Value Ratio M Effective Maturity MBS Mortgage-backed Security MDB Multilateral Development Bank MDI Minority Depository Institution MHC Mutual Holding Company MSA Mortgage Servicing Assets NPR Notice of Proposed Rulemaking NRSRO Nationally Recognized Statistical Rating Organization OCC Office of the Comptroller of the Currency OECD Organization for Economic Cooperation and Development OMB Office of Management and Budget OTC Over-the-Counter OTS Office of Thrift Supervision PCA Prompt Corrective Action PCCR Purchased Credit Card Relationship PD Probability of Default PFE Potential Future Exposure PMI Private Mortgage Insurance PMSR Purchased Mortgage Servicing Right PRA Paperwork Reduction Act of 1995 PSE Public Sector Entities PvP Payment-versus-Payment QCCP Qualifying Central Counterparty QIS Quantitative Impact Study QM Qualified Mortgages QRE Qualifying Revolving Exposure RBA Ratings-Based Approach RBC Risk-Based Capital REIT Real Estate Investment Trust Re-REMIC Resecuritization of Real Estate Mortgage Investment Conduit RFA Regulatory Flexibility Act RTCRRI Act Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991 RVC Ratio of Value Change SAP Statutory Accounting Principles SEC U.S. Securities and Exchange Commission SFA Supervisory Formula Approach SLHC Savings and Loan Holding Company SPE Special Purpose Entity SR Supervision and Regulation Letter SRWA Simple Risk-Weight Approach SSFA Simplified Supervisory Formula Approach TruPS Trust Preferred Security TruPS CDO Trust Preferred Security Collateralized Debt Obligation UMRA Unfunded Mandates Reform Act of 1995 U.S.C. United States Code VA Veterans Administration VaR Value-at-Risk VOBA Value of Business Acquired WAM Weighted Average Maturity PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 55465 XIV. Regulatory Flexibility Act In general, section 4 of the Regulatory Flexibility Act (5 U.S.C. 604) (RFA) requires an agency to prepare a final regulatory flexibility analysis (FRFA), for a final rule unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include banking entities with total assets of $175 million or less and after July 22, 2013, total assets of $500 million or less). Pursuant to the RFA, the agency must make the FRFA available to members of the public and must publish the FRFA, or a summary thereof, in the Federal Register. In accordance with section 4 of the RFA, the FDIC is publishing the following summary of its FRFA.185 For purposes of the FRFA, the FDIC analyzed the potential economic impact on the entities it regulates with total assets of $175 million or less and $500 million or less, including state nonmember banks and state savings associations (small FDIC-supervised institutions). As discussed in more detail in section E, below, the FDIC believes that this interim final rule may have a significant economic impact on a substantial number of the small entities under its jurisdiction. Accordingly, the FDIC has prepared the following FRFA pursuant to the RFA. A. Statement of the Need for, and Objectives of, the Interim Final Rule As discussed in the Supplementary Information of the preamble to this interim final rule, the FDIC is revising its regulatory capital requirements to promote safe and sound banking practices, implement Basel III and other aspects of the Basel capital framework, harmonize capital requirements between types of FDIC-supervised institutions, and codify capital requirements. Additionally, this interim final rule satisfies certain requirements under the 185 The FDIC published a summary of its initial regulatory flexibility analysis (IRFA) in connection with each of the proposed rules in accordance with Section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. 603 (RFA). In the IRFAs provided in connection with the proposed rules, the FDIC requested comment on all aspects of the IRFAs, and, in particular, on any significant alternatives to the proposed rules applicable to covered small FDIC-supervised institutions that would minimize their impact on those entities. In the IRFA provided by the FDIC in connection with the advanced approach proposed rule, the FDIC determined that there would not be a significant economic impact on a substantial number of small FDIC-supervised institutions and published a certification and a short explanatory statement pursuant to section 605(b) of the RFA. E:\FR\FM\10SER2.SGM 10SER2 55466 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 Dodd-Frank Act by: (1) Revising regulatory capital requirements to remove references to, and requirements of reliance on, credit ratings,186 and (2) imposing new or revised minimum capital requirements on certain FDICsupervised institutions.187 Under section 38(c)(1) of the Federal Deposit Insurance Act, the FDIC may prescribe capital standards for depository institutions that it regulates.188 The FDIC also must establish capital requirements under the International Lending Supervision Act for institutions that it regulates.189 B. Summary and Assessment of Significant Issues Raised by Public Comments in Response to the IRFAs, and a Statement of Changes Made as a Result of These Comments The FDIC received three public comments directly addressing the IRFAs. One commenter questioned the FDIC’s assumption that risk-weighted assets would increase only 10 percent and questioned reliance on Call Report data for this assumption, as the commenter asserted that existing Call Report data does not contain the information required to accurately analyze the proposal’s impact on riskweighted assets (for example, under the Standardized Approach NPR, an increase in the risk weights for 1–4 family residential mortgage exposures that are balloon mortgages). The commenters also expressed general concern that the FDIC was underestimating the compliance cost of the proposed rules. For instance, one commenter questioned whether small banking organizations would have the information required to determine the applicable risk weights for residential mortgage exposures, and stated that the cost of applying the proposed standards to existing exposures was underestimated. Another commenter stated that the FDIC did not adequately consider the additional costs relating to new reporting systems, assimilating data, and preparing reports required under the proposed rules. To measure the potential impact on small entities for the purposes of its IRFAs, the FDIC used the most current reporting data available and, to address information gaps, applied conservative assumptions. The FDIC considered the comments it received on the potential impact of the proposed rules, and, as discussed in Item F, below, made significant revisions to the interim final 186 See 15 U.S.C. 78o–7, note. 12 U.S.C. 5371. 188 See 12 U.S.C. 1831o(c). 189 See 12 U.S.C. 3907. 187 See VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 rule in response to the concerns expressed regarding the potential burden on small FDIC-supervised institutions. Commenters expressed concern that the FDIC, along with the OCC and Federal Reserve, did not use a uniform methodology for conducting their IRFAs and suggested that the agencies should have compared their analyses prior to publishing the proposed rules. The agencies coordinated closely in conducting the IRFAs to maximize consistency among the methodologies used for determining the potential impact on the entities regulated by each agency. However, the analyses differed as appropriate in light of the different entities each agency supervises. For their respective FRFAs, the agencies continued to coordinate closely in order to ensure maximum consistency and comparability. One commenter questioned the alternatives described in the IRFAs. This commenter asserted that the alternatives were counter-productive and added complexity to the capital framework without any meaningful benefit. As discussed throughout the preamble and in Item F, below, the FDIC has responded to commenters’ concerns and sought to reduce the compliance burden on FDIC-supervised institutions throughout this interim final rule. The FDIC also received a number of more general comments regarding the overall burden of the proposed rules. For example, many commenters expressed concern that the complexity and implementation cost of the proposed rules would exceed the expected benefit. According to these commenters, implementation of the proposed rules would require software upgrades for new internal reporting systems, increased employee training, and the hiring of additional employees for compliance purposes. A few commenters also urged the FDIC to recognize that compliance costs have increased significantly over recent years due to other regulatory changes. As discussed throughout the preamble and in Item F, below, the FDIC recognizes the potential compliance costs associated with the proposals. Accordingly, for purposes of the interim final rule the FDIC modified certain requirements of the proposals to reduce the compliance burden on small FDICsupervised institutions. The FDIC believes the interim final rule maintains its objectives regarding the implementation of the Basel III framework while reducing costs for small FDIC-supervised institutions. PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 C. Response to Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration, and Statement of Changes Made as a Result of the Comment The Chief Counsel for Advocacy of the Small Business Administration (CCA) filed a letter with the FDIC providing comments on the proposed rules. The CCA generally commended the FDIC for the IRFAs provided with the proposed rules, and specifically commended the FDIC for considering the cumulative economic impact of the proposals on small FDIC-supervised institutions. The CCA acknowledged that the FDIC provided lists of alternatives being considered, but encouraged the FDIC to provide more detailed discussion of these alternatives and the potential burden reductions associated with the alternatives. The CCA acknowledged that the FDIC had certified that the advanced approaches proposed rule would not have a significant economic impact on a substantial number of small FDICsupervised institutions. The CCA stated that small FDICsupervised institutions should be able to continue to use the current regulatory capital framework to compute their capital requirements. The FDIC recognizes that the new regulatory capital framework will carry costs, but believes that the supervisory interest in improved and uniform capital standards, and the resulting improvements in the safety and soundness of the U.S. banking system, outweighs the increased burden. The CCA also urged the FDIC to give careful consideration to comments discussing the impact of the proposed rules on small FDIC-supervised institutions and to analyze possible alternatives to reduce this impact. The FDIC gave careful consideration to all comments received, in particular the comments that discussed the potential impact of the proposed rules on small FDIC-supervised institutions and made certain changes to reduce the potential impact of the interim final rule, as discussed throughout the preamble and in Item F, below. The CCA expressed concern that aspects of the proposals could be problematic and onerous for small FDIC-supervised institutions. The CCA stated that the proposed rules were designed for large, international banks and not adapted to the circumstances of small FDIC-supervised institutions. Specifically, the CCA expressed concern over higher risk weights for certain products, which, the CCA argued, could drive small FDIC-supervised institutions E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations into products carrying additional risks. The CCA also noted heightened compliance and technology costs associated with implementing the proposed rules and raised the possibility that small FDIC-supervised institutions may exit the mortgage market. As discussed throughout the preamble and in Item F below, the FDIC has made significant revisions to the proposed rules that address the concerns raised in the CCA’s comment. D. Description and Estimate of Small FDIC-Supervised Institutions Affected by the Interim Final Rule Under regulations issued by the Small Business Administration,190 a small entity includes a depository institution with total assets of $175 million or less and beginning July 22, 2013, total assets of $500 million or less. As of March 31, 2013, the FDIC supervised approximately 2,453 small depository institutions with total assets of $175 million or less. 2,295 are small state nonmember banks, 112 are small state savings banks, and 46 are small state savings associations. As of March 31, 2013, the FDIC supervised approximately 3,711 small depository institutions with total assets of $500 million or less. 3,398 are small state nonmember banks, 259 are small state savings banks, and 54 are small state savings associations. emcdonald on DSK67QTVN1PROD with RULES2 E. Projected Reporting, Recordkeeping, and Other Compliance Requirements The interim final rule may impact small FDIC-supervised institutions in several ways. The interim final rule affects small FDIC-supervised institutions’ regulatory capital requirements by changing the qualifying criteria for regulatory capital, including required deductions and adjustments, and modifying the risk weight treatment for some exposures. The interim final rule also requires small FDIC-supervised institutions to meet new minimum common equity tier 1 to risk-weighted assets ratio of 4.5 percent and an increased minimum tier 1 capital to risk-weighted assets risk-based capital ratio of 6 percent. Under the interim final rule, all FDIC-supervised institutions would remain subject to a 4 percent minimum tier 1 leverage ratio.191 The interim final rule imposes 190 See 13 CFR 121.201. institutions subject to the advanced approaches rule also would be required in 2018 to achieve a minimum tier 1 capital to total leverage exposure ratio (the supplementary leverage ratio) of 3 percent. Advanced approaches banking organizations should refer to section 10 of subpart B of the interim final rule and section II.B of the preamble for a more detailed discussion of the applicable minimum capital ratios. 191 FDIC-supervised VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 limitations on capital distributions and discretionary bonus payments for small FDIC-supervised institutions that do not hold a buffer of common equity tier 1 capital above the minimum ratios. The interim final rule also includes changes to the general risk-based capital requirements that address the calculation of risk-weighted assets. The interim final rule: • Introduces a higher risk weight for certain past due exposures and acquisition and development real estate loans; • Provides a more risk sensitive approach to exposures to non-U.S. sovereigns and non-U.S. public sector entities; • Replaces references to credit ratings with new measures of creditworthiness; 192 • Provides more comprehensive recognition of collateral and guarantees; and • Provides a more favorable capital treatment for transactions cleared through qualifying central counterparties. As a result of the new requirements, some small FDIC-supervised institutions may have to alter their capital structure (including by raising new capital or increasing retention of earnings) in order to achieve compliance. The FDIC has excluded from its analysis any burden associated with changes to the Consolidated Reports of Income and Condition for small FDICsupervised institutions (FFIEC 031 and 041; OMB Nos. 7100–0036, 3064–0052, 1557–0081). The FDIC is proposing information collection changes to reflect the requirements of the interim final rule, and is publishing separately for comment on the regulatory reporting requirements that will include associated estimates of burden. Further analysis of the projected reporting requirements imposed by the interim final rule is located in the Paperwork Reduction Act section, below. Most small FDIC-supervised institutions hold capital in excess of the minimum leverage and risk-based capital requirements set forth in the interim final rule. Although the capital requirements under the interim final rule are not expected to significantly impact the capital structure of these institutions, the FDIC expects that some may change internal capital allocation policies and practices to accommodate the requirements of the interim final 192 Section 939A of the Dodd-Frank Act addresses the use of credit ratings in regulations of the FDIC. Accordingly, the interim final rule introduces alternative measures of creditworthiness for foreign debt, securitization positions, and resecuritization positions. PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 55467 rule. For example, an institution may elect to raise capital to return its excess capital position to the levels maintained prior to implementation of the interim final rule. A comparison of the capital requirements in the interim final rule on a fully-implemented basis to the minimum requirements under the general risk-based capital rules shows that approximately 57 small FDICsupervised institutions with total assets of $175 million or less currently do not hold sufficient capital to satisfy the requirements of the interim final rule. Those institutions, which represent approximately two percent of small FDIC-supervised institutions, collectively would need to raise approximately $83 million in regulatory capital to meet the minimum capital requirements under the interim final rule. A comparison of the capital requirements in the interim final rule on a fully-implemented basis to the minimum requirements under the general risk-based capital rules shows that approximately 96 small FDICsupervised institutions with total assets of $500 million or less currently do not hold sufficient capital to satisfy the requirements of the interim final rule. Those institutions, which represent approximately three percent of small FDIC-supervised institutions, collectively would need to raise approximately $445 million in regulatory capital to meet the minimum capital requirements under the interim final rule. To estimate the cost to FDICsupervised institutions of the new capital requirement, the FDIC examined the effect of this requirement on capital structure and the overall cost of capital.193 The cost of financing an FDIC-supervised institution is the weighted average cost of its various financing sources, which amounts to a weighted average cost of capital reflecting many different types of debt and equity financing. Because interest payments on debt are tax deductible, a more leveraged capital structure reduces corporate taxes, thereby lowering funding costs, and the weighted average cost of financing tends to decline as leverage increases. Thus, an increase in required equity capital would—all else equal—increase the cost of capital for that institution. This effect could be offset to some extent if the additional capital protection caused the riskpremium demanded by the institution’s 193 See Merton H. Miller, (1995), ‘‘Do the M & M propositions apply to banks?’’ Journal of Banking & Finance, Vol. 19, pp. 483–489. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55468 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations counterparties to decline sufficiently. The FDIC did not try to measure this effect. This increased cost in the most burdensome year would be tax benefits foregone: The capital requirement, multiplied by the interest rate on the debt displaced and by the effective marginal tax rate for the FDICsupervised institutions affected by the interim final rule. The effective marginal corporate tax rate is affected not only by the statutory federal and state rates, but also by the probability of positive earnings and the offsetting effects of personal taxes on required bond yields. Graham (2000) considers these factors and estimates a median marginal tax benefit of $9.40 per $100 of interest.194 So, using an estimated interest rate on debt of 6 percent, the FDIC estimated that for institutions with total assets of $175 million or less, the annual tax benefits foregone on $83 million of capital switching from debt to equity is approximately $469,000 per year ($83 million * 0.06 (interest rate) * 0.094 (median marginal tax savings)). Averaged across 57 institutions, the cost is approximately $8,000 per institution per year. Similarly, for institutions with total assets of $500 million or less, the annual tax benefits foregone on $445 million of capital switching from debt to equity is approximately $2.5 million per year ($445 million * 0.06 (interest rate) * 0.094 (median marginal tax savings)). Averaged across 96 institutions, the cost is approximately $26,000 per institution per year. Working with the other agencies, the FDIC also estimated the direct compliance costs related to financial reporting as a result of the interim final rule. This aspect of the interim final rule likely will require additional personnel training and expenses related to new systems (or modification of existing systems) for calculating regulatory capital ratios, in addition to updating risk weights for certain exposures. The FDIC assumes that small FDICsupervised institutions will spend approximately $43,000 per institution to update reporting system and change the classification of existing exposures. Based on comments from the industry, the FDIC increased this estimate from the $36,125 estimate used in the proposed rules. The FDIC believes that this revised cost estimate is more conservative because it has increased even though many of the labor-intensive provisions of the interim final rule have been excluded. For example, small FDIC-supervised institutions have the option to maintain the current reporting methodology for gains and losses classified as Available for Sale (AFS) thus eliminating the need to update systems. Additionally the exposures where the risk-weights are changing typically represent a small portion of assets (less than 5 percent) on institutions’ balance sheets. Additionally, small FDIC-supervised institutions can maintain existing riskweights for residential mortgage exposures, eliminating the need for those institutions to reclassify existing exposure. This estimate of direct compliance costs is the same under both the $175 million and $500 million size thresholds. The FDIC estimates that the $43,000 in direct compliance costs will represent a significant burden for approximately 37 percent of small FDICsupervised institutions with total assets of $175 million or less. The FDIC estimates that the $43,000 in direct compliance costs will represent a burden for approximately 25 percent of small FDIC-supervised institutions with total assets of $500 million or less. For purposes of this interim final rule, the FDIC defines significant burden as an estimated cost greater than 2.5 percent of total non-interest expense or 5 percent of annual salaries and employee benefits. The direct compliance costs are the most significant cost since few small FDIC-supervised institutions will need to raise capital to meet the minimum ratios, as noted above. 194 See John R. Graham, (2000), How Big Are the Tax Benefits of Debt?, Journal of Finance, Vol. 55, No. 5, pp. 1901–1941. Graham points out that ignoring the offsetting effects of personal taxes would increase the median marginal tax rate to $31.5 per $100 of interest. 195 For most non-advanced approaches banking organizations, this will be a one-time only election. However, in certain limited circumstances, such as a merger of organizations that have made different elections, the FDIC may permit the resultant entity to make a new election. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 F. Steps Taken To Minimize the Economic Impact on Small FDICSupervised Institutions; Significant Alternatives In response to commenters’ concerns about the potential implementation burden on small FDIC-supervised institutions, the FDIC has made several significant revisions to the proposals for purposes of the interim final rule. Under the interim final rule, non-advanced approaches FDIC-supervised institutions will be permitted to elect to exclude amounts reported as accumulated other comprehensive income (AOCI) when calculating regulatory capital, to the same extent currently permitted under the general risk-based capital rules.195 In addition, for purposes of calculating riskweighted assets under the standardized PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 approach, the FDIC is not adopting the proposed treatment for 1–4 family residential mortgages, which would have required small FDIC-supervised institutions to categorize residential mortgage loans into one of two categories based on certain underwriting standards and product features, and then risk-weight each loan based on its loan-to-value ratio. The FDIC also is retaining the 120-day safe harbor from recourse treatment for loans transferred pursuant to an early default provision. The FDIC believes that these changes will meaningfully reduce the compliance burden of the interim final rule for small FDIC-supervised institutions. For instance, in contrast to the proposal, the interim final rule does not require small FDIC-supervised institutions to review existing mortgage loan files, purchase new software to track loan-to-value ratios, train employees on the new risk-weight methodology, or hold more capital for exposures that would have been deemed category 2 under the proposed rule, removing the proposed distinction between risk weights for category 1 and 2 residential mortgage exposures. Similarly, the option to elect to retain the current treatment of AOCI will reduce the burden associated with managing the volatility in regulatory capital resulting from changes in the value of an FDIC-supervised institutions’ AFS debt securities portfolio due to shifting interest rate environments. The FDIC believes these modifications to the proposed rule will substantially reduce compliance burden for small FDIC-supervised institutions. XV. Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. In conjunction with the proposed rules, the FDIC submitted the information collection requirements contained therein to OMB for review. In response, OMB filed comments with the FDIC in accordance with 5 CFR 1320.11(c) withholding PRA approval and instructing that the collection should be resubmitted to OMB at the interim final rule stage. As instructed by OMB, the information collection requirements contained in this interim final rule have been submitted by the FDIC to OMB for review under the PRA, under OMB Control No. 3064–0153. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations The interim final rule contains information collection requirements subject to the PRA. They are found in sections 324.3, 324.22, 324.35, 324.37, 324.41, 324.42, 324.62, 324.63 (including tables), 324.121, through 324.124, 324.132, 324.141, 324.142, 324.153, 324.173 (including tables). The information collection requirements contained in sections 324.203, through 324.210, and 324.212 concerning market risk are approved by OMB under Control No. 3604–0178. A total of nine comments were received concerning paperwork. Seven expressed concern regarding the increase in paperwork resulting from the rule. They addressed the concept of paperwork generally and not within the context of the PRA. One comment addressed cost, competitiveness, and qualitative impact statements, and noted the lack of cost estimates. It was unclear whether the commenter was referring to cost estimates for regulatory burden, which are included in the preamble to the rule, or cost estimates regarding the PRA burden, which are included in the submissions (information collection requests) made to OMB by the agencies regarding the interim final rule. All of the agencies’ submissions are publicly available at www.reginfo.gov. One commenter seemed to indicate that the agencies’ burden estimates are overstated. The commenter stated that, for their institution, the PRA burden will parallel that of interest rate risk (240 hours per year). The agencies’ estimates far exceed that figure, so no change to the estimates would be necessary. The FDIC continues to believe that its estimates are reasonable averages that are not overstated. The FDIC has an ongoing interest in your comments. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the agencies’ functions, including whether the information has practical utility; (b) The accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; (d) Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) Estimates of capital or start-up costs and costs of operation, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 maintenance, and purchase of services to provide information. XVI. Plain Language Section 722 of the Gramm-LeachBliley Act requires the FDIC to use plain language in all proposed and rules published after January 1, 2000. The agencies have sought to present the proposed rule in a simple and straightforward manner and did not receive any comments on the use of plain language. XVII. Small Business Regulatory Enforcement Fairness Act of 1996 55469 12 CFR Part 337 Banks, banking, Reporting and recordkeeping requirements, Savings associations, Securities. 12 CFR Part 347 Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Credit, Foreign banking, Investments, Reporting and recordkeeping requirements, United States investments abroad. 12 CFR Part 349 Foreign banking, Banks, banking. For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, or ‘‘SBREFA,’’ the FDIC must advise the OMB as to whether the interim final rule constitutes a ‘‘major’’ rule.196 If a rule is major, its effectiveness will generally be delayed for 60 days pending congressional review. In accordance with SBREFA, the FDIC has advised the OMB that this interim final rule is a major rule for the purpose of congressional review. Following OMB’s review, the FDIC will file the appropriate reports with Congress and the Government Accountability Office so that the final rule may be reviewed. 12 CFR Part 360 List of Subjects Administrative practice and procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Safety and soundness. 12 CFR Part 303 Administrative practice and procedure, Banks, banking, Bank merger, Branching, Foreign investments, Golden parachute payments, Insured branches, Interstate branching, Reporting and recordkeeping requirements, Savings associations. Banks, banking, Investments. 12 CFR Part 362 Administrative practice and procedure, Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Investments, Reporting and recordkeeping requirements. 12 CFR Part 363 Accounting, Administrative practice and procedure, Banks, banking, Reporting and recordkeeping requirements. 12 CFR Part 364 12 CFR Part 365 Banks, banking, Mortgages. 12 CFR Part 390 Administrative practice and procedure, Banks, banking, Claims, Crime; Equal access to justice, Ex parte communications, Hearing procedure, Lawyers, Penalties, State nonmember banks. Administrative practice and procedure, Advertising, Aged, Credit, Civil rights, Conflicts of interest, Crime, Equal employment opportunity, Ethics, Fair housing’ Governmental employees, Home mortgage disclosure, Individuals with disabilities, OTS employees, Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 324 12 CFR Part 391 Administrative practice and procedure, Banks, banking, Capital adequacy, Reporting and recordkeeping requirements, Savings associations, State non-member banks. Bank deposit insurance, Banks, banking, Savings associations. Administrative practice and procedure, Advertising, Aged, Credit, Civil rights, Conflicts of interest, Crime, Equal employment opportunity, Ethics, Fair housing, Governmental employees, Home mortgage disclosure, Individuals with disabilities, OTS employees, Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 333 Authority and Issuance 12 CFR Part 308 12 CFR Part 327 Banks, banking, Corporate powers. 196 5 PO 00000 U.S.C. 801 et seq. Frm 00131 Fmt 4701 Sfmt 4700 For the reasons set forth in the preamble, the Federal Deposit Insurance Corporation amends chapter III of title E:\FR\FM\10SER2.SGM 10SER2 55470 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 12 of the Code of Federal Regulations as follows: PART 303—FILING PROCEDURES 1. The authority citation for part 303 continues to read as follows: ■ Authority: 12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p–1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601–1607. 2. Section 303.2 is amended by revising paragraphs (b), (ee), and (ff) to read as follows: ■ § 303.2 Definitions. * * * * * (b) Adjusted part 325 total assets means adjusted 12 CFR part 325 or part 324, as applicable, total assets as calculated and reflected in the FDIC’s Report of Examination. * * * * * (ee) Tier 1 capital shall have the same meaning as provided in § 325.2(v) of this chapter (12 CFR 325.2(v)) or § 324.2, as applicable. (ff) Total assets shall have the same meaning as provided in § 325.2(x) of this chapter (12 CFR 325.2(x)) or § 324.401(g), as applicable. * * * * * ■ 3. Section 303.64 is amended by revising paragraph (a)(4)(i) to read as follows: § 303.64 Processing. (a) * * * (4) * * * (i) Immediately following the merger transaction, the resulting institution will be ‘‘well-capitalized’’ pursuant to subpart B of part 325 of this chapter (12 CFR part 325) or subpart H of part 324 of this chapter (12 CFR part 324), as applicable; and * * * * * ■ 4. Section 303.181 is amended by revising paragraph (c)(4) to read as follows: § 303.181 Definitions. emcdonald on DSK67QTVN1PROD with RULES2 * * * * * (c) * * * (4) Is well-capitalized as defined in subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable; and * * * * * ■ 5. Section 303.184 is amended by revising paragraph (d)(1)(ii) to read as follows: § 303.184 Moving an insured branch of a foreign bank. * * * (d) * * * VerDate Mar<15>2010 * * 17:14 Sep 09, 2013 Jkt 229001 (1) * * * (ii) The applicant is at least adequately capitalized as defined in subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable; * * * * * ■ 6. Section 303.200 is amended by revising paragraphs (a)(2) and (b) to read as follows: package, including all obligations held by all participants is $20 million or more, or such lower level as the FDIC may establish by order on a case-by-case basis, will be excluded from this definition. * * * * * ■ 8. Section 303.241 is amended by revising paragraph (c)(4) to read as follows: § 303.200 § 303.241 Reduce or retire capital stock or capital debt instruments. Scope. (a) * * * (2) Definitions of the capital categories referenced in this Prompt Corrective Action subpart may be found in subpart B of part 325 of this chapter, § 325.103(b) for state nonmember banks and § 325.103(c) for insured branches of foreign banks, or subpart H of part 324 of this chapter, § 324.403(b) for state nonmember banks and § 324.403(c) for insured branches of foreign banks, as applicable. (b) Institutions covered. Restrictions and prohibitions contained in subpart B of part 325 of this chapter, and subpart H of part 324 of this chapter, as applicable, apply primarily to state nonmember banks and insured branches of foreign banks, as well as to directors and senior executive officers of those institutions. Portions of subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable, also apply to all insured depository institutions that are deemed to be critically undercapitalized. ■ 7. Section 303.207 is amended by revising paragraph (b)(2) to read as follows: * * * * * (c) * * * (4) If the proposal involves a series of transactions affecting Tier 1 capital components which will be consummated over a period of time which shall not exceed twelve months, the application shall certify that the insured depository institution will maintain itself as a well-capitalized institution as defined in part 325 of this chapter or part 324 of this chapter, as applicable, both before and after each of the proposed transactions; * * * * * PART 308—RULES OF PRACTICE AND PROCEDURE 9. The authority citation for part 308 continues to read as follows: ■ § 303.207 Restricted activities for critically undercapitalized institutions. Authority: 5 U.S.C. 504, 554–557; 12 U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 1831o, 1831p–1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717, 15 U.S.C. 78(h) and (i), 78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, 78u–3, and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104–134, 110 Stat. 1321–358; and Pub. L. 109–351. * ■ * * * * (b) * * * (2) Extend credit for any highly leveraged transaction. A highly leveraged transaction means an extension of credit to or investment in a business by an insured depository institution where the financing transaction involves a buyout, acquisition, or recapitalization of an existing business and one of the following criteria is met: (i) The transaction results in a liabilities-to-assets leverage ratio higher than 75 percent; or (ii) The transaction at least doubles the subject company’s liabilities and results in a liabilities-to-assets leverage ratio higher than 50 percent; or (iii) The transaction is designated an highly leverage transaction by a syndication agent or a federal bank regulator. (iv) Loans and exposures to any obligor in which the total financing PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 10. Section 308.200 is revised to read as follows: § 308.200 Scope. The rules and procedures set forth in this subpart apply to banks, insured branches of foreign banks and senior executive officers and directors of banks that are subject to the provisions of section 38 of the Federal Deposit Insurance Act (section 38) (12 U.S.C. 1831o) and subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable. ■ 11. Section 308.202 is amended by revising paragraphs (a)(1)(i)(A) introductory text and (a)(1)(ii) to read as follows: § 308.202 Procedures for reclassifying a bank based on criteria other than capital. (a) * * * (1) * * * (i) Grounds for reclassification. (A) Pursuant to § 325.103(d) of this chapter E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations or § 324.403(d) of this chapter, as applicable, the FDIC may reclassify a well-capitalized bank as adequately capitalized or subject an adequately capitalized or undercapitalized institution to the supervisory actions applicable to the next lower capital category if: * * * * * (ii) Prior notice to institution. Prior to taking action pursuant to § 325.103(d) of this chapter or § 324.403(d) of this chapter, as applicable, the FDIC shall issue and serve on the bank a written notice of the FDIC’s intention to reclassify it. * * * * * ■ 12. Section 308.204 is amended by revising paragraphs (b)(2) and (c) to read as follows: § 308.204 Enforcement of directives. * * * * * (b) * * * (2) Failure to implement capital restoration plan. The failure of a bank to implement a capital restoration plan required under section 38, or subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable, or the failure of a company having control of a bank to fulfill a guarantee of a capital restoration plan made pursuant to section 38(e)(2) of the FDI Act shall subject the bank to the assessment of civil money penalties pursuant to section 8(i)(2)(A) of the FDI Act. (c) Other enforcement action. In addition to the actions described in paragraphs (a) and (b) of this section, the FDIC may seek enforcement of the provisions of section 38 or subpart B of part 325 of this chapter or subpart H of part 324 of this chapter, as applicable, through any other judicial or administrative proceeding authorized by law. ■ 13. Part 324 is added to read as follows: emcdonald on DSK67QTVN1PROD with RULES2 PART 324—CAPITAL ADEQUACY OF FDIC-SUPERVISED INSTITUTIONS Subpart A—General Provisions Sec. 324.1 Purpose, applicability, reservations of authority, and timing. 324.2 Definitions. 324.3 Operational requirements for counterparty credit risk. 324.4 Inadequate capital as an unsafe or unsound practice or condition. 324.5 Issuance of directives. 324.6 through 324.9 [Reserved] Subpart B—Capital Ratio Requirements and Buffers 324.10 Minimum capital requirements. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 324.11 Capital conservation buffer and countercyclical capital buffer amount. 324.12 through 324.19 [Reserved] Subpart C—Definition of Capital 324.20 Capital components and eligibility criteria for regulatory capital instruments. 324.21 Minority interest. 324.22 Regulatory capital adjustments and deductions. 324.23 through 324.29 [Reserved] Subpart D—Risk-Weighted Assets— Standardized Approach 324.30 Applicability. Risk-Weighted Assets for General Credit Risk 324.31 Mechanics for calculating riskweighted assets for general credit risk. 324.32 General risk weights. 324.33 Off-balance sheet exposures. 324.34 OTC derivative contracts. 324.35 Cleared transactions. 324.36 Guarantees and credit derivatives: substitution treatment. 324.37 Collateralized transactions. Risk-Weighted Assets for Unsettled Transactions 324.38 Unsettled transactions. 324.39 through 324.40 [Reserved] Risk-Weighted Assets for Securitization Exposures 324.41 Operational requirements for securitization exposures. 324.42 Risk-weighted assets for securitization exposures. 324.43 Simplified supervisory formula approach (SSFA) and the gross-up approach. 324.44 Securitization exposures to which the SSFA and gross-up approach do not apply. 324.45 Recognition of credit risk mitigants for securitization exposures. 324.46 through 324.50 [Reserved] Risk-Weighted Assets for Equity Exposures 324.51 Introduction and exposure measurement. 324.52 Simple risk-weight approach (SRWA). 324.53 Equity exposures to investment funds. 324.54 through 324.60 [Reserved] Disclosures 324.61 Purpose and scope. 324.62 Disclosure requirements. 324.63 Disclosures by FDIC-supervised institutions described in § 324.61. 324.64 through 324.99 [Reserved] Subpart E—Risk-Weighted Assets—Internal Ratings-Based and Advanced Measurement Approaches 324.100 Purpose, applicability, and principle of conservatism. 324.101 Definitions. 324.102 through 324.120 [Reserved] Qualification 324.121 Qualification process. 324.122 Qualification requirements. PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 55471 324.123 Ongoing qualification. 324.124 Merger and acquisition transitional arrangements. 324.125 through 324.130 [Reserved] Risk-Weighted Assets for General Credit Risk 324.131 Mechanics for calculating total wholesale and retail risk-weighted assets. 324.132 Counterparty credit risk of repostyle transactions, eligible margin loans, and OTC derivative contracts. 324.133 Cleared transactions. 324.134 Guarantees and credit derivatives: PD substitution and LGD adjustment approaches. 324.135 Guarantees and credit derivatives: double default treatment. 324.136 Unsettled transactions. 324.137 through 324.140 [Reserved] Risk-Weighted Assets for Securitization Exposures 324.141 Operational criteria for recognizing the transfer of risk. 324.142 Risk-weighted assets for securitization exposures. 324.143 Supervisory formula approach (SFA). 324.144 Simplified supervisory formula approach (SSFA). 324.145 Recognition of credit risk mitigants for securitization exposures. 324.146 through 324.150 [Reserved] Risk-Weighted Assets for Equity Exposures 324.151 Introduction and exposure measurement. 324.152 Simple risk weight approach (SRWA). 324.153 Internal models approach (IMA). 324.154 Equity exposures to investment funds. 324.155 Equity derivative contracts. 324.156 through 324.160 [Reserved] Risk-Weighted Assets for Operational Risk 324.161 Qualification requirements for incorporation of operational risk mitigants. 324.162 Mechanics of risk-weighted asset calculation. 324.163 through 324.170 [Reserved] Disclosures 324.171 Purpose and scope. 324.172 Disclosure requirements. 324.173 Disclosures by certain advanced approaches FDIC-supervised institutions. 324.174 through 324.200 [Reserved] Subpart F—Risk-Weighted Assets—Market Risk 324.201 Purpose, applicability, and reservation of authority. 324.202 Definitions. 324.203 Requirements for application of this subpart F. 324.204 Measure for market risk. 324.205 VaR-based measure. 324.206 Stressed VaR-based measure. 324.207 Specific risk. 324.208 Incremental risk. 324.209 Comprehensive risk. 324.210 Standardized measurement method for specific risk. E:\FR\FM\10SER2.SGM 10SER2 55472 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 324.211 Simplified supervisory formula approach (SSFA). 324.212 Market risk disclosures. 324.213 through 324.299 [Reserved] Subpart G—Transition Provisions 324.300 Transitions. 324.301 through 324.399 [Reserved] Subpart H—Prompt Corrective Action 324.401 Authority, purpose, scope, other supervisory authority, disclosure of capital categories, and transition procedures. 324.402 Notice of capital category. 324.403 Capital measures and capital category definitions. 324.404 Capital restoration plans. 324.405 Mandatory and discretionary supervisory actions. 324.406 through 324.999 [Reserved] Authority: 12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; 5371; 5412; Pub. L. 102–233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102–242, 105 Stat. 2236, 2355, as amended by Pub. L. 103–325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102–242, 105 Stat. 2236, 2386, as amended by Pub. L. 102–550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note); Pub. L. 111–203, 124 Stat. 1376, 1887 (15 U.S.C. 78o–7 note). Subpart A—General Provisions emcdonald on DSK67QTVN1PROD with RULES2 § 324.1 Purpose, applicability, reservations of authority, and timing. (a) Purpose. This part 324 establishes minimum capital requirements and overall capital adequacy standards for FDIC-supervised institutions. This part 324 includes methodologies for calculating minimum capital requirements, public disclosure requirements related to the capital requirements, and transition provisions for the application of this part 324. (b) Limitation of authority. Nothing in this part 324 shall be read to limit the authority of the FDIC to take action under other provisions of law, including action to address unsafe or unsound practices or conditions, deficient capital levels, or violations of law or regulation, under section 8 of the Federal Deposit Insurance Act. (c) Applicability. Subject to the requirements in paragraphs (d) and (f) of this section: (1) Minimum capital requirements and overall capital adequacy standards. Each FDIC-supervised institution must calculate its minimum capital requirements and meet the overall capital adequacy standards in subpart B of this part. (2) Regulatory capital. Each FDICsupervised institution must calculate its regulatory capital in accordance with subpart C of this part. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (3) Risk-weighted assets. (i) Each FDIC-supervised institution must use the methodologies in subpart D of this part (and subpart F of this part for a market risk FDIC-supervised institution) to calculate standardized total riskweighted assets. (ii) Each advanced approaches FDICsupervised institution must use the methodologies in subpart E (and subpart F of this part for a market risk FDICsupervised institution) to calculate advanced approaches total riskweighted assets. (4) Disclosures. (i) Except for an advanced approaches FDIC-supervised institution that is making public disclosures pursuant to the requirements in subpart E of this part, each FDIC-supervised institution with total consolidated assets of $50 billion or more must make the public disclosures described in subpart D of this part. (ii) Each market risk FDIC-supervised institution must make the public disclosures described in subpart F of this part. (iii) Each advanced approaches FDICsupervised institution must make the public disclosures described in subpart E of this part. (d) Reservation of authority. (1) Additional capital in the aggregate. The FDIC may require an FDIC-supervised institution to hold an amount of regulatory capital greater than otherwise required under this part if the FDIC determines that the FDIC-supervised institution’s capital requirements under this part are not commensurate with the FDIC-supervised institution’s credit, market, operational, or other risks. (2) Regulatory capital elements. (i) If the FDIC determines that a particular common equity tier 1, additional tier 1, or tier 2 capital element has characteristics or terms that diminish its ability to absorb losses, or otherwise present safety and soundness concerns, the FDIC may require the FDICsupervised institution to exclude all or a portion of such element from common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, as appropriate. (ii) Notwithstanding the criteria for regulatory capital instruments set forth in subpart C of this part, the FDIC may find that a capital element may be included in an FDIC-supervised institution’s common equity tier 1 capital, additional tier 1 capital, or tier 2 capital on a permanent or temporary basis consistent with the loss absorption capacity of the element and in accordance with § 324.20(e). (3) Risk-weighted asset amounts. If the FDIC determines that the riskweighted asset amount calculated under PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 this part by the FDIC-supervised institution for one or more exposures is not commensurate with the risks associated with those exposures, the FDIC may require the FDIC-supervised institution to assign a different riskweighted asset amount to the exposure(s) or to deduct the amount of the exposure(s) from its regulatory capital. (4) Total leverage. If the FDIC determines that the leverage exposure amount, or the amount reflected in the FDIC-supervised institution’s reported average total consolidated assets, for an on- or off-balance sheet exposure calculated by an FDIC-supervised institution under § 324.10 is inappropriate for the exposure(s) or the circumstances of the FDIC-supervised institution, the FDIC may require the FDIC-supervised institution to adjust this exposure amount in the numerator and the denominator for purposes of the leverage ratio calculations. (5) Consolidation of certain exposures. The FDIC may determine that the risk-based capital treatment for an exposure or the treatment provided to an entity that is not consolidated on the FDIC-supervised institution’s balance sheet is not commensurate with the risk of the exposure or the relationship of the FDIC-supervised institution to the entity. Upon making this determination, the FDIC may require the FDIC-supervised institution to treat the exposure or entity as if it were consolidated on the balance sheet of the FDIC-supervised institution for purposes of determining the FDICsupervised institution’s risk-based capital requirements and calculating the FDIC-supervised institution’s risk-based capital ratios accordingly. The FDIC will look to the substance of, and risk associated with, the transaction, as well as other relevant factors the FDIC deems appropriate in determining whether to require such treatment. (6) Other reservation of authority. With respect to any deduction or limitation required under this part, the FDIC may require a different deduction or limitation, provided that such alternative deduction or limitation is commensurate with the FDICsupervised institution’s risk and consistent with safety and soundness. (e) Notice and response procedures. In making a determination under this section, the FDIC will apply notice and response procedures in the same manner as the notice and response procedures in § 324.5(c). (f) Timing. (1) Subject to the transition provisions in subpart G of this part, an advanced approaches FDIC-supervised E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 institution that is not a savings and loan holding company must: (i) Except as described in paragraph (f)(1)(ii) of this section, beginning on January 1, 2014, calculate advanced approaches total risk-weighted assets in accordance with subpart E and, if applicable, subpart F of this part and, beginning on January 1, 2015, calculate standardized total risk-weighted assets in accordance with subpart D and, if applicable, subpart F of this part; (ii) From January 1, 2014 to December 31, 2014: (A) Calculate risk-weighted assets in accordance with the general risk-based capital rules under 12 CFR part 325, appendix A, and, if applicable appendix C (state nonmember banks), or 12 CFR part 390, subpart Z and, if applicable, 12 CFR part 325, appendix C (state savings associations) 1 and substitute such riskweighted assets for standardized total risk-weighted assets for purposes of § 324.10; (B) If applicable, calculate general market risk equivalent assets in accordance with 12 CFR part 325, appendix C, section 4(a)(3) and substitute such general market risk equivalent assets for standardized market risk-weighted assets for purposes of § 324.20(d)(3); and (C) Substitute the corresponding provision or provisions of 12 CFR part 325, appendix A, and, if applicable, appendix C (state nonmember banks), and 12 CFR part 390, subpart Z and, if applicable, 12 CFR part 325, appendix C (state savings associations) for any reference to subpart D of this part in: § 324.121(c); § 324.124(a) and (b); § 324.144(b); § 324.154(c) and (d); § 324.202(b) (definition of covered position in paragraph (b)(3)(iv)); and § 324.211(b); 2 (iii) Beginning on January 1, 2014, calculate and maintain minimum capital ratios in accordance with 1 For the purpose of calculating its general riskbased capital ratios from January 1, 2014 to December 31, 2014, an advanced approaches FDICsupervised institution shall adjust, as appropriate, its risk-weighted asset measure (as that amount is calculated under 12 CFR part 325, appendix A, (state nonmember banks), and 12 CFR part 390, subpart Z (state savings associations) in the general risk-based capital rules) by excluding those assets that are deducted from its regulatory capital under § 324.22. 2 In addition, for purposes of § 324.201(c)(3), from January 1, 2014 to December 31, 2014, for any circumstance in which the FDIC may require an FDIC-supervised institution to calculate risk-based capital requirements for specific positions or portfolios under subpart D of this part, the FDIC will instead require the FDIC-supervised institution to make such calculations according to 12 CFR part 325, appendix A, and, if applicable, appendix C (state nonmember banks), or 12 CFR part 390, subpart Z and, if applicable, 12 CFR part 325, appendix C (state savings associations). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 subparts A, B, and C of this part, provided, however, that such FDICsupervised institution must: (A) From January 1, 2014 to December 31, 2014, maintain a minimum common equity tier 1 capital ratio of 4 percent, a minimum tier 1 capital ratio of 5.5 percent, a minimum total capital ratio of 8 percent, and a minimum leverage ratio of 4 percent; and (B) From January 1, 2015 to December 31, 2017, an advanced approaches FDICsupervised institution: (1) Is not required to maintain a supplementary leverage ratio; and (2) Must calculate a supplementary leverage ratio in accordance with § 324.10(c), and must report the calculated supplementary leverage ratio on any applicable regulatory reports. (2) Subject to the transition provisions in subpart G of this part, an FDICsupervised institution that is not an advanced approaches FDIC-supervised institution or a savings and loan holding company that is an advanced approaches FDIC-supervised institution must: (i) Beginning on January 1, 2015, calculate standardized total riskweighted assets in accordance with subpart D, and if applicable, subpart F of this part; and (ii) Beginning on January 1, 2015, calculate and maintain minimum capital ratios in accordance with subparts A, B and C of this part, provided, however, that from January 1, 2015, to December 31, 2017, a savings and loan holding company that is an advanced approaches FDIC-supervised institution: (A) Is not required to maintain a supplementary leverage ratio; and (B) Must calculate a supplementary leverage ratio in accordance with § 324.10(c), and must report the calculated supplementary leverage ratio on any applicable regulatory reports. (3) Beginning on January 1, 2016, and subject to the transition provisions in subpart G of this part, an FDICsupervised institution is subject to limitations on distributions and discretionary bonus payments with respect to its capital conservation buffer and any applicable countercyclical capital buffer amount, in accordance with subpart B of this part. § 324.2 Definitions. As used in this part: Additional tier 1 capital is defined in § 324.20(c). Advanced approaches FDICsupervised institution means an FDICsupervised institution that is described in § 324.100(b)(1). Advanced approaches total riskweighted assets means: PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 55473 (1) The sum of: (i) Credit-risk-weighted assets; (ii) Credit valuation adjustment (CVA) risk-weighted assets; (iii) Risk-weighted assets for operational risk; and (iv) For a market risk FDIC-supervised institution only, advanced market riskweighted assets; minus (2) Excess eligible credit reserves not included in the FDIC-supervised institution’s tier 2 capital. Advanced market risk-weighted assets means the advanced measure for market risk calculated under § 324.204 multiplied by 12.5. Affiliate with respect to a company, means any company that controls, is controlled by, or is under common control with, the company. Allocated transfer risk reserves means reserves that have been established in accordance with section 905(a) of the International Lending Supervision Act, against certain assets whose value U.S. supervisory authorities have found to be significantly impaired by protracted transfer risk problems. Allowances for loan and lease losses (ALLL) means valuation allowances that have been established through a charge against earnings to cover estimated credit losses on loans, lease financing receivables or other extensions of credit as determined in accordance with GAAP. ALLL excludes ‘‘allocated transfer risk reserves.’’ For purposes of this part, ALLL includes allowances that have been established through a charge against earnings to cover estimated credit losses associated with off-balance sheet credit exposures as determined in accordance with GAAP. Asset-backed commercial paper (ABCP) program means a program established primarily for the purpose of issuing commercial paper that is investment grade and backed by underlying exposures held in a bankruptcy-remote special purpose entity (SPE). Asset-backed commercial paper (ABCP) program sponsor means an FDIC-supervised institution that: (1) Establishes an ABCP program; (2) Approves the sellers permitted to participate in an ABCP program; (3) Approves the exposures to be purchased by an ABCP program; or (4) Administers the ABCP program by monitoring the underlying exposures, underwriting or otherwise arranging for the placement of debt or other obligations issued by the program, compiling monthly reports, or ensuring compliance with the program documents and with the program’s credit and investment policy. Assets classified loss means: E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55474 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (1) When measured as of the date of examination of an FDIC-supervised institution, those assets that have been determined by an evaluation made by a state or Federal examiner as of that date to be a loss; and (2) When measured as of any other date, those assets: (i) That have been determined— (A) By an evaluation made by a state or Federal examiner at the most recent examination of an FDIC-supervised institution to be a loss; or (B) By evaluations made by the FDICsupervised institution since its most recent examination to be a loss; and (ii) That have not been charged off from the FDIC-supervised institution’s books or collected. Bank means an FDIC-insured, statechartered commercial or savings bank that is not a member of the Federal Reserve System and for which the FDIC is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)). Bank holding company means a bank holding company as defined in section 2 of the Bank Holding Company Act. Bank Holding Company Act means the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841 et seq.). Bankruptcy remote means, with respect to an entity or asset, that the entity or asset would be excluded from an insolvent entity’s estate in receivership, insolvency, liquidation, or similar proceeding. Call Report means Consolidated Reports of Condition and Income. Carrying value means, with respect to an asset, the value of the asset on the balance sheet of the FDIC-supervised institution, determined in accordance with GAAP. Central counterparty (CCP) means a counterparty (for example, a clearing house) that facilitates trades between counterparties in one or more financial markets by either guaranteeing trades or novating contracts. CFTC means the U.S. Commodity Futures Trading Commission. Clean-up call means a contractual provision that permits an originating FDIC-supervised institution or servicer to call securitization exposures before their stated maturity or call date. Cleared transaction means an exposure associated with an outstanding derivative contract or repo-style transaction that an FDIC-supervised institution or clearing member has entered into with a central counterparty (that is, a transaction that a central counterparty has accepted). (1) The following transactions are cleared transactions: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (i) A transaction between a CCP and an FDIC-supervised institution that is a clearing member of the CCP where the FDIC-supervised institution enters into the transaction with the CCP for the FDIC-supervised institution’s own account; (ii) A transaction between a CCP and an FDIC-supervised institution that is a clearing member of the CCP where the FDIC-supervised institution is acting as a financial intermediary on behalf of a clearing member client and the transaction offsets another transaction that satisfies the requirements set forth in § 324.3(a); (iii) A transaction between a clearing member client FDIC-supervised institution and a clearing member where the clearing member acts as a financial intermediary on behalf of the clearing member client and enters into an offsetting transaction with a CCP, provided that the requirements set forth in § 324.3(a) are met; or (iv) A transaction between a clearing member client FDIC-supervised institution and a CCP where a clearing member guarantees the performance of the clearing member client FDICsupervised institution to the CCP and the transaction meets the requirements of § 324.3(a)(2) and (3). (2) The exposure of an FDICsupervised institution that is a clearing member to its clearing member client is not a cleared transaction where the FDIC-supervised institution is either acting as a financial intermediary and enters into an offsetting transaction with a CCP or where the FDIC-supervised institution provides a guarantee to the CCP on the performance of the client.3 Clearing member means a member of, or direct participant in, a CCP that is entitled to enter into transactions with the CCP. Clearing member client means a party to a cleared transaction associated with a CCP in which a clearing member acts either as a financial intermediary with respect to the party or guarantees the performance of the party to the CCP. Collateral agreement means a legal contract that specifies the time when, and circumstances under which, a counterparty is required to pledge collateral to an FDIC-supervised institution for a single financial contract or for all financial contracts in a netting 3 For the standardized approach treatment of these exposures, see § 324.34(e) (OTC derivative contracts) or § 324.37(c) (repo-style transactions). For the advanced approaches treatment of these exposures, see § 324.132(c)(8) and (d) (OTC derivative contracts) or § 324.132(b) and 324.132(d) (repo-style transactions) and for calculation of the margin period of risk, see § 324.132(d)(5)(iii)(C) (OTC derivative contracts) and § 324.132(d)(5)(iii)(A) (repo-style transactions). PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 set and confers upon the FDICsupervised institution a perfected, firstpriority security interest (notwithstanding the prior security interest of any custodial agent), or the legal equivalent thereof, in the collateral posted by the counterparty under the agreement. This security interest must provide the FDIC-supervised institution with a right to close out the financial positions and liquidate the collateral upon an event of default of, or failure to perform by, the counterparty under the collateral agreement. A contract would not satisfy this requirement if the FDIC-supervised institution’s exercise of rights under the agreement may be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the DoddFrank Act, or under any similar insolvency law applicable to GSEs. Commitment means any legally binding arrangement that obligates an FDIC-supervised institution to extend credit or to purchase assets. Commodity derivative contract means a commodity-linked swap, purchased commodity-linked option, forward commodity-linked contract, or any other instrument linked to commodities that gives rise to similar counterparty credit risks. Commodity Exchange Act means the Commodity Exchange Act of 1936 (7 U.S.C. 1 et seq.) Common equity tier 1 capital is defined in § 324.20(b). Common equity tier 1 minority interest means the common equity tier 1 capital of a depository institution or foreign bank that is: (1) A consolidated subsidiary of an FDIC-supervised institution; and (2) Not owned by the FDIC-supervised institution. Company means a corporation, partnership, limited liability company, depository institution, business trust, special purpose entity, association, or similar organization. Control. A person or company controls a company if it: (1) Owns, controls, or holds with power to vote 25 percent or more of a class of voting securities of the company; or (2) Consolidates the company for financial reporting purposes. Core capital means Tier 1 capital, as defined in § 324.2 of subpart A of this part. Corporate exposure means an exposure to a company that is not: (1) An exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Commission, the International Monetary Fund, a multi-lateral development bank (MDB), a depository institution, a foreign bank, a credit union, or a public sector entity (PSE); (2) An exposure to a GSE; (3) A residential mortgage exposure; (4) A pre-sold construction loan; (5) A statutory multifamily mortgage; (6) A high volatility commercial real estate (HVCRE) exposure; (7) A cleared transaction; (8) A default fund contribution; (9) A securitization exposure; (10) An equity exposure; or (11) An unsettled transaction. Country risk classification (CRC) with respect to a sovereign, means the most recent consensus CRC published by the Organization for Economic Cooperation and Development (OECD) as of December 31st of the prior calendar year that provides a view of the likelihood that the sovereign will service its external debt. Covered savings and loan holding company means a top-tier savings and loan holding company other than: (1) A top-tier savings and loan holding company that is: (i) A grandfathered unitary savings and loan holding company as defined in section 10(c)(9)(A) of HOLA; and (ii) As of June 30 of the previous calendar year, derived 50 percent or more of its total consolidated assets or 50 percent of its total revenues on an enterprise-wide basis (as calculated under GAAP) from activities that are not financial in nature under section 4(k) of the Bank Holding Company Act (12 U.S.C. 1842(k)); (2) A top-tier savings and loan holding company that is an insurance underwriting company; or (3)(i) A top-tier savings and loan holding company that, as of June 30 of the previous calendar year, held 25 percent or more of its total consolidated assets in subsidiaries that are insurance underwriting companies (other than assets associated with insurance for credit risk); and (ii) For purposes of paragraph 3(i) of this definition, the company must calculate its total consolidated assets in accordance with GAAP, or if the company does not calculate its total consolidated assets under GAAP for any regulatory purpose (including compliance with applicable securities laws), the company may estimate its total consolidated assets, subject to review and adjustment by the Federal Reserve. Credit derivative means a financial contract executed under standard industry credit derivative documentation that allows one party VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (the protection purchaser) to transfer the credit risk of one or more exposures (reference exposure(s)) to another party (the protection provider) for a certain period of time. Credit-enhancing interest-only strip (CEIO) means an on-balance sheet asset that, in form or in substance: (1) Represents a contractual right to receive some or all of the interest and no more than a minimal amount of principal due on the underlying exposures of a securitization; and (2) Exposes the holder of the CEIO to credit risk directly or indirectly associated with the underlying exposures that exceeds a pro rata share of the holder’s claim on the underlying exposures, whether through subordination provisions or other credit-enhancement techniques. Credit-enhancing representations and warranties means representations and warranties that are made or assumed in connection with a transfer of underlying exposures (including loan servicing assets) and that obligate an FDICsupervised institution to protect another party from losses arising from the credit risk of the underlying exposures. Creditenhancing representations and warranties include provisions to protect a party from losses resulting from the default or nonperformance of the counterparties of the underlying exposures or from an insufficiency in the value of the collateral backing the underlying exposures. Credit-enhancing representations and warranties do not include: (1) Early default clauses and similar warranties that permit the return of, or premium refund clauses covering, 1–4 family residential first mortgage loans that qualify for a 50 percent risk weight for a period not to exceed 120 days from the date of transfer. These warranties may cover only those loans that were originated within 1 year of the date of transfer; (2) Premium refund clauses that cover assets guaranteed, in whole or in part, by the U.S. Government, a U.S. Government agency or a GSE, provided the premium refund clauses are for a period not to exceed 120 days from the date of transfer; or (3) Warranties that permit the return of underlying exposures in instances of misrepresentation, fraud, or incomplete documentation. Credit risk mitigant means collateral, a credit derivative, or a guarantee. Credit-risk-weighted assets means 1.06 multiplied by the sum of: (1) Total wholesale and retail riskweighted assets as calculated under § 324.131; PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 55475 (2) Risk-weighted assets for securitization exposures as calculated under § 324.142; and (3) Risk-weighted assets for equity exposures as calculated under § 324.151. Credit union means an insured credit union as defined under the Federal Credit Union Act (12 U.S.C. 1751 et seq.). Current exposure means, with respect to a netting set, the larger of zero or the fair value of a transaction or portfolio of transactions within the netting set that would be lost upon default of the counterparty, assuming no recovery on the value of the transactions. Current exposure is also called replacement cost. Current exposure methodology means the method of calculating the exposure amount for over-the-counter derivative contracts in § 324.34(a) and exposure at default (EAD) in § 324.132(c)(5) or (6), as applicable. Custodian means a financial institution that has legal custody of collateral provided to a CCP. Default fund contribution means the funds contributed or commitments made by a clearing member to a CCP’s mutualized loss sharing arrangement. Depository institution means a depository institution as defined in section 3 of the Federal Deposit Insurance Act. Depository institution holding company means a bank holding company or savings and loan holding company. Derivative contract means a financial contract whose value is derived from the values of one or more underlying assets, reference rates, or indices of asset values or reference rates. Derivative contracts include interest rate derivative contracts, exchange rate derivative contracts, equity derivative contracts, commodity derivative contracts, credit derivative contracts, and any other instrument that poses similar counterparty credit risks. Derivative contracts also include unsettled securities, commodities, and foreign exchange transactions with a contractual settlement or delivery lag that is longer than the lesser of the market standard for the particular instrument or five business days. Discretionary bonus payment means a payment made to an executive officer of an FDIC-supervised institution, where: (1) The FDIC-supervised institution retains discretion as to whether to make, and the amount of, the payment until the payment is awarded to the executive officer; (2) The amount paid is determined by the FDIC-supervised institution without E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55476 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations prior promise to, or agreement with, the executive officer; and (3) The executive officer has no contractual right, whether express or implied, to the bonus payment. Distribution means: (1) A reduction of tier 1 capital through the repurchase of a tier 1 capital instrument or by other means, except when an FDIC-supervised institution, within the same quarter when the repurchase is announced, fully replaces a tier 1 capital instrument it has repurchased by issuing another capital instrument that meets the eligibility criteria for: (i) A common equity tier 1 capital instrument if the instrument being repurchased was part of the FDICsupervised institution’s common equity tier 1 capital, or (ii) A common equity tier 1 or additional tier 1 capital instrument if the instrument being repurchased was part of the FDIC-supervised institution’s tier 1 capital; (2) A reduction of tier 2 capital through the repurchase, or redemption prior to maturity, of a tier 2 capital instrument or by other means, except when an FDIC-supervised institution, within the same quarter when the repurchase or redemption is announced, fully replaces a tier 2 capital instrument it has repurchased by issuing another capital instrument that meets the eligibility criteria for a tier 1 or tier 2 capital instrument; (3) A dividend declaration or payment on any tier 1 capital instrument; (4) A dividend declaration or interest payment on any tier 2 capital instrument if the FDIC-supervised institution has full discretion to permanently or temporarily suspend such payments without triggering an event of default; or (5) Any similar transaction that the FDIC determines to be in substance a distribution of capital. Dodd-Frank Act means the DoddFrank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. 111–203, 124 Stat. 1376). Early amortization provision means a provision in the documentation governing a securitization that, when triggered, causes investors in the securitization exposures to be repaid before the original stated maturity of the securitization exposures, unless the provision: (1) Is triggered solely by events not directly related to the performance of the underlying exposures or the originating FDIC-supervised institution (such as material changes in tax laws or regulations); or VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) Leaves investors fully exposed to future draws by borrowers on the underlying exposures even after the provision is triggered. Effective notional amount means for an eligible guarantee or eligible credit derivative, the lesser of the contractual notional amount of the credit risk mitigant and the exposure amount (or EAD for purposes of subpart E of this part) of the hedged exposure, multiplied by the percentage coverage of the credit risk mitigant. Eligible ABCP liquidity facility means a liquidity facility supporting ABCP, in form or in substance, that is subject to an asset quality test at the time of draw that precludes funding against assets that are 90 days or more past due or in default. Notwithstanding the preceding sentence, a liquidity facility is an eligible ABCP liquidity facility if the assets or exposures funded under the liquidity facility that do not meet the eligibility requirements are guaranteed by a sovereign that qualifies for a 20 percent risk weight or lower. Eligible clean-up call means a cleanup call that: (1) Is exercisable solely at the discretion of the originating FDICsupervised institution or servicer; (2) Is not structured to avoid allocating losses to securitization exposures held by investors or otherwise structured to provide credit enhancement to the securitization; and (3)(i) For a traditional securitization, is only exercisable when 10 percent or less of the principal amount of the underlying exposures or securitization exposures (determined as of the inception of the securitization) is outstanding; or (ii) For a synthetic securitization, is only exercisable when 10 percent or less of the principal amount of the reference portfolio of underlying exposures (determined as of the inception of the securitization) is outstanding. Eligible credit derivative means a credit derivative in the form of a credit default swap, nth-to-default swap, total return swap, or any other form of credit derivative approved by the FDIC, provided that: (1) The contract meets the requirements of an eligible guarantee and has been confirmed by the protection purchaser and the protection provider; (2) Any assignment of the contract has been confirmed by all relevant parties; (3) If the credit derivative is a credit default swap or nth-to-default swap, the contract includes the following credit events: (i) Failure to pay any amount due under the terms of the reference PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 exposure, subject to any applicable minimal payment threshold that is consistent with standard market practice and with a grace period that is closely in line with the grace period of the reference exposure; and (ii) Receivership, insolvency, liquidation, conservatorship or inability of the reference exposure issuer to pay its debts, or its failure or admission in writing of its inability generally to pay its debts as they become due, and similar events; (4) The terms and conditions dictating the manner in which the contract is to be settled are incorporated into the contract; (5) If the contract allows for cash settlement, the contract incorporates a robust valuation process to estimate loss reliably and specifies a reasonable period for obtaining post-credit event valuations of the reference exposure; (6) If the contract requires the protection purchaser to transfer an exposure to the protection provider at settlement, the terms of at least one of the exposures that is permitted to be transferred under the contract provide that any required consent to transfer may not be unreasonably withheld; (7) If the credit derivative is a credit default swap or nth-to-default swap, the contract clearly identifies the parties responsible for determining whether a credit event has occurred, specifies that this determination is not the sole responsibility of the protection provider, and gives the protection purchaser the right to notify the protection provider of the occurrence of a credit event; and (8) If the credit derivative is a total return swap and the FDIC-supervised institution records net payments received on the swap as net income, the FDIC-supervised institution records offsetting deterioration in the value of the hedged exposure (either through reductions in fair value or by an addition to reserves). Eligible credit reserves means all general allowances that have been established through a charge against earnings to cover estimated credit losses associated with on- or off-balance sheet wholesale and retail exposures, including the ALLL associated with such exposures, but excluding allocated transfer risk reserves established pursuant to 12 U.S.C. 3904 and other specific reserves created against recognized losses. Eligible guarantee means a guarantee from an eligible guarantor that: (1) Is written; (2) Is either: (i) Unconditional, or E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (ii) A contingent obligation of the U.S. government or its agencies, the enforceability of which is dependent upon some affirmative action on the part of the beneficiary of the guarantee or a third party (for example, meeting servicing requirements); (3) Covers all or a pro rata portion of all contractual payments of the obligated party on the reference exposure; (4) Gives the beneficiary a direct claim against the protection provider; (5) Is not unilaterally cancelable by the protection provider for reasons other than the breach of the contract by the beneficiary; (6) Except for a guarantee by a sovereign, is legally enforceable against the protection provider in a jurisdiction where the protection provider has sufficient assets against which a judgment may be attached and enforced; (7) Requires the protection provider to make payment to the beneficiary on the occurrence of a default (as defined in the guarantee) of the obligated party on the reference exposure in a timely manner without the beneficiary first having to take legal actions to pursue the obligor for payment; (8) Does not increase the beneficiary’s cost of credit protection on the guarantee in response to deterioration in the credit quality of the reference exposure; and (9) Is not provided by an affiliate of the FDIC-supervised institution, unless the affiliate is an insured depository institution, foreign bank, securities broker or dealer, or insurance company that: (i) Does not control the FDICsupervised institution; and (ii) Is subject to consolidated supervision and regulation comparable to that imposed on depository institutions, U.S. securities brokerdealers, or U.S. insurance companies (as the case may be). Eligible guarantor means: (1) A sovereign, the Bank for International Settlements, the International Monetary Fund, the European Central Bank, the European Commission, a Federal Home Loan Bank, Federal Agricultural Mortgage Corporation (Farmer Mac), a multilateral development bank (MDB), a depository institution, a bank holding company, a savings and loan holding company, a credit union, a foreign bank, or a qualifying central counterparty; or (2) An entity (other than a special purpose entity): (i) That at the time the guarantee is issued or anytime thereafter, has issued and outstanding an unsecured debt VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 security without credit enhancement that is investment grade; (ii) Whose creditworthiness is not positively correlated with the credit risk of the exposures for which it has provided guarantees; and (iii) That is not an insurance company engaged predominately in the business of providing credit protection (such as a monoline bond insurer or re-insurer). Eligible margin loan means: (1) An extension of credit where: (i) The extension of credit is collateralized exclusively by liquid and readily marketable debt or equity securities, or gold; (ii) The collateral is marked to fair value daily, and the transaction is subject to daily margin maintenance requirements; and (iii) The extension of credit is conducted under an agreement that provides the FDIC-supervised institution the right to accelerate and terminate the extension of credit and to liquidate or set off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, conservatorship, or similar proceeding, of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the DoddFrank Act, or under any similar insolvency law applicable to GSEs.4 (2) In order to recognize an exposure as an eligible margin loan for purposes of this subpart, an FDIC-supervised institution must comply with the requirements of § 324.3(b) with respect to that exposure. Eligible servicer cash advance facility means a servicer cash advance facility in which: (1) The servicer is entitled to full reimbursement of advances, except that a servicer may be obligated to make non-reimbursable advances for a particular underlying exposure if any such advance is contractually limited to an insignificant amount of the outstanding principal balance of that exposure; 4 This requirement is met where all transactions under the agreement are (i) executed under U.S. law and (ii) constitute ‘‘securities contracts’’ under section 555 of the Bankruptcy Code (11 U.S.C. 555), qualified financial contracts under section 11(e)(8) of the Federal Deposit Insurance Act, or netting contracts between or among financial institutions under sections 401–407 of the Federal Deposit Insurance Corporation Improvement Act or the Federal Reserve Board’s Regulation EE (12 CFR part 231). PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 55477 (2) The servicer’s right to reimbursement is senior in right of payment to all other claims on the cash flows from the underlying exposures of the securitization; and (3) The servicer has no legal obligation to, and does not make advances to the securitization if the servicer concludes the advances are unlikely to be repaid. Employee stock ownership plan has the same meaning as in 29 CFR 2550.407d-6. Equity derivative contract means an equity-linked swap, purchased equitylinked option, forward equity-linked contract, or any other instrument linked to equities that gives rise to similar counterparty credit risks. Equity exposure means: (1) A security or instrument (whether voting or non-voting) that represents a direct or an indirect ownership interest in, and is a residual claim on, the assets and income of a company, unless: (i) The issuing company is consolidated with the FDIC-supervised institution under GAAP; (ii) The FDIC-supervised institution is required to deduct the ownership interest from tier 1 or tier 2 capital under this part; (iii) The ownership interest incorporates a payment or other similar obligation on the part of the issuing company (such as an obligation to make periodic payments); or (iv) The ownership interest is a securitization exposure; (2) A security or instrument that is mandatorily convertible into a security or instrument described in paragraph (1) of this definition; (3) An option or warrant that is exercisable for a security or instrument described in paragraph (1) of this definition; or (4) Any other security or instrument (other than a securitization exposure) to the extent the return on the security or instrument is based on the performance of a security or instrument described in paragraph (1) of this definition. ERISA means the Employee Retirement Income and Security Act of 1974 (29 U.S.C. 1001 et seq.). Exchange rate derivative contract means a cross-currency interest rate swap, forward foreign-exchange contract, currency option purchased, or any other instrument linked to exchange rates that gives rise to similar counterparty credit risks. Executive officer means a person who holds the title or, without regard to title, salary, or compensation, performs the function of one or more of the following positions: president, chief executive officer, executive chairman, chief E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55478 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations operating officer, chief financial officer, chief investment officer, chief legal officer, chief lending officer, chief risk officer, or head of a major business line, and other staff that the board of directors of the FDIC-supervised institution deems to have equivalent responsibility. Expected credit loss (ECL) means: (1) For a wholesale exposure to a nondefaulted obligor or segment of nondefaulted retail exposures that is carried at fair value with gains and losses flowing through earnings or that is classified as held-for-sale and is carried at the lower of cost or fair value with losses flowing through earnings, zero. (2) For all other wholesale exposures to non-defaulted obligors or segments of non-defaulted retail exposures, the product of the probability of default (PD) times the loss given default (LGD) times the exposure at default (EAD) for the exposure or segment. (3) For a wholesale exposure to a defaulted obligor or segment of defaulted retail exposures, the FDICsupervised institution’s impairment estimate for allowance purposes for the exposure or segment. (4) Total ECL is the sum of expected credit losses for all wholesale and retail exposures other than exposures for which the FDIC-supervised institution has applied the double default treatment in § 324.135. Exposure amount means: (1) For the on-balance sheet component of an exposure (other than an available-for-sale or held-to-maturity security, if the FDIC-supervised institution has made an AOCI opt-out election (as defined in § 324.22(b)(2)); an OTC derivative contract; a repo-style transaction or an eligible margin loan for which the FDIC-supervised institution determines the exposure amount under § 324.37; a cleared transaction; a default fund contribution; or a securitization exposure), the FDICsupervised institution’s carrying value of the exposure. (2) For a security (that is not a securitization exposure, an equity exposure, or preferred stock classified as an equity security under GAAP) classified as available-for-sale or heldto-maturity if the FDIC-supervised institution has made an AOCI opt-out election (as defined in § 324.22(b)(2)), the FDIC-supervised institution’s carrying value (including net accrued but unpaid interest and fees) for the exposure less any net unrealized gains on the exposure and plus any net unrealized losses on the exposure. (3) For available-for-sale preferred stock classified as an equity security under GAAP if the FDIC-supervised VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 institution has made an AOCI opt-out election (as defined in § 324.22(b)(2)), the FDIC-supervised institution’s carrying value of the exposure less any net unrealized gains on the exposure that are reflected in such carrying value but excluded from the FDIC-supervised institution’s regulatory capital components. (4) For the off-balance sheet component of an exposure (other than an OTC derivative contract; a repo-style transaction or an eligible margin loan for which the FDIC-supervised institution calculates the exposure amount under § 324.37; a cleared transaction; a default fund contribution; or a securitization exposure), the notional amount of the off-balance sheet component multiplied by the appropriate credit conversion factor (CCF) in § 324.33. (5) For an exposure that is an OTC derivative contract, the exposure amount determined under § 324.34; (6) For an exposure that is a cleared transaction, the exposure amount determined under § 324.35. (7) For an exposure that is an eligible margin loan or repo-style transaction for which the FDIC-supervised institution calculates the exposure amount as provided in § 324.37, the exposure amount determined under § 324.37. (8) For an exposure that is a securitization exposure, the exposure amount determined under § 324.42. FDIC-supervised institution means any bank or state savings association. Federal Deposit Insurance Act means the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.). Federal Deposit Insurance Corporation Improvement Act means the Federal Deposit Insurance Corporation Improvement Act of 1991 ((Pub. L. 102–242, 105 Stat. 2236). Federal Reserve means the Board of Governors of the Federal Reserve System. Financial collateral means collateral: (1) In the form of: (i) Cash on deposit with the FDICsupervised institution (including cash held for the FDIC-supervised institution by a third-party custodian or trustee); (ii) Gold bullion; (iii) Long-term debt securities that are not resecuritization exposures and that are investment grade; (iv) Short-term debt instruments that are not resecuritization exposures and that are investment grade; (v) Equity securities that are publicly traded; (vi) Convertible bonds that are publicly traded; or (vii) Money market fund shares and other mutual fund shares if a price for the shares is publicly quoted daily; and PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 (2) In which the FDIC-supervised institution has a perfected, first-priority security interest or, outside of the United States, the legal equivalent thereof (with the exception of cash on deposit and notwithstanding the prior security interest of any custodial agent). Financial institution means: (1) A bank holding company; savings and loan holding company; nonbank financial institution supervised by the Federal Reserve under Title I of the Dodd-Frank Act; depository institution; foreign bank; credit union; industrial loan company, industrial bank, or other similar institution described in section 2 of the Bank Holding Company Act; national association, state member bank, or state non-member bank that is not a depository institution; insurance company; securities holding company as defined in section 618 of the DoddFrank Act; broker or dealer registered with the SEC under section 15 of the Securities Exchange Act; futures commission merchant as defined in section 1a of the Commodity Exchange Act; swap dealer as defined in section 1a of the Commodity Exchange Act; or security-based swap dealer as defined in section 3 of the Securities Exchange Act; (2) Any designated financial market utility, as defined in section 803 of the Dodd-Frank Act; (3) Any entity not domiciled in the United States (or a political subdivision thereof) that is supervised and regulated in a manner similar to entities described in paragraphs (1) or (2) of this definition; or (4) Any other company: (i) Of which the FDIC-supervised institution owns: (A) An investment in GAAP equity instruments of the company with an adjusted carrying value or exposure amount equal to or greater than $10 million; or (B) More than 10 percent of the company’s issued and outstanding common shares (or similar equity interest), and (ii) Which is predominantly engaged in the following activities: (A) Lending money, securities or other financial instruments, including servicing loans; (B) Insuring, guaranteeing, indemnifying against loss, harm, damage, illness, disability, or death, or issuing annuities; (C) Underwriting, dealing in, making a market in, or investing as principal in securities or other financial instruments; or (D) Asset management activities (not including investment or financial advisory activities). E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (5) For the purposes of this definition, a company is ‘‘predominantly engaged’’ in an activity or activities if: (i) 85 percent or more of the total consolidated annual gross revenues (as determined in accordance with applicable accounting standards) of the company is either of the two most recent calendar years were derived, directly or indirectly, by the company on a consolidated basis from the activities; or (ii) 85 percent or more of the company’s consolidated total assets (as determined in accordance with applicable accounting standards) as of the end of either of the two most recent calendar years were related to the activities. (6) Any other company that the FDIC may determine is a financial institution based on activities similar in scope, nature, or operation to those of the entities included in (1) through (4). (7) For purposes of this part, ‘‘financial institution’’ does not include the following entities: (i) GSEs; (ii) Small business investment companies, as defined in section 102 of the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.); (iii) Entities designated as Community Development Financial Institutions (CDFIs) under 12 U.S.C. 4701 et seq. and 12 CFR part 1805; (iv) Entities registered with the SEC under the Investment Company Act or foreign equivalents thereof; (v) Entities to the extent that the FDIC-supervised institution’s investment in such entities would qualify as a community development investment under section 24 (Eleventh) of the National Bank Act; and (vi) An employee benefit plan as defined in paragraphs (3) and (32) of section 3 of ERISA, a ‘‘governmental plan’’ (as defined in 29 U.S.C. 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code, or any similar employee benefit plan established under the laws of a foreign jurisdiction. First-lien residential mortgage exposure means a residential mortgage exposure secured by a first lien. Foreign bank means a foreign bank as defined in § 211.2 of the Federal Reserve’s Regulation K (12 CFR 211.2) (other than a depository institution). Forward agreement means a legally binding contractual obligation to purchase assets with certain drawdown at a specified future date, not including commitments to make residential mortgage loans or forward foreign exchange contracts. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 GAAP means generally accepted accounting principles as used in the United States. Gain-on-sale means an increase in the equity capital of an FDIC-supervised institution (as reported on Schedule RC of the Call Report) resulting from a traditional securitization (other than an increase in equity capital resulting from the FDIC-supervised institution’s receipt of cash in connection with the securitization or reporting of a mortgage servicing asset on Schedule RC of the Call Report. General obligation means a bond or similar obligation that is backed by the full faith and credit of a public sector entity (PSE). Government-sponsored enterprise (GSE) means an entity established or chartered by the U.S. government to serve public purposes specified by the U.S. Congress but whose debt obligations are not explicitly guaranteed by the full faith and credit of the U.S. government. Guarantee means a financial guarantee, letter of credit, insurance, or other similar financial instrument (other than a credit derivative) that allows one party (beneficiary) to transfer the credit risk of one or more specific exposures (reference exposure) to another party (protection provider). High volatility commercial real estate (HVCRE) exposure means a credit facility that, prior to conversion to permanent financing, finances or has financed the acquisition, development, or construction (ADC) of real property, unless the facility finances: (1) One- to four-family residential properties; (2) Real property that: (i) Would qualify as an investment in community development under 12 U.S.C. 338a or 12 U.S.C. 24 (Eleventh), as applicable, or as a ‘‘qualified investment’’ under 12 CFR part 345, and (ii) Is not an ADC loan to any entity described in 12 CFR 345.12(g)(3), unless it is otherwise described in paragraph (1), (2)(i), (3) or (4) of this definition; (3) The purchase or development of agricultural land, which includes all land known to be used or usable for agricultural purposes (such as crop and livestock production), provided that the valuation of the agricultural land is based on its value for agricultural purposes and the valuation does not take into consideration any potential use of the land for non-agricultural commercial development or residential development; or (4) Commercial real estate projects in which: (i) The loan-to-value ratio is less than or equal to the applicable maximum PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 55479 supervisory loan-to-value ratio in the FDIC’s real estate lending standards at 12 CFR part 365, subpart A (state nonmember banks), 12 CFR 390.264 and 390.265 (state savings associations); (ii) The borrower has contributed capital to the project in the form of cash or unencumbered readily marketable assets (or has paid development expenses out-of-pocket) of at least 15 percent of the real estate’s appraised ‘‘as completed’’ value; and (iii) The borrower contributed the amount of capital required by paragraph (4)(ii) of this definition before the FDICsupervised institution advances funds under the credit facility, and the capital contributed by the borrower, or internally generated by the project, is contractually required to remain in the project throughout the life of the project. The life of a project concludes only when the credit facility is converted to permanent financing or is sold or paid in full. Permanent financing may be provided by the FDIC-supervised institution that provided the ADC facility as long as the permanent financing is subject to the FDICsupervised institution’s underwriting criteria for long-term mortgage loans. Home country means the country where an entity is incorporated, chartered, or similarly established. Identified losses means: (1) When measured as of the date of examination of an FDIC-supervised institution, those items that have been determined by an evaluation made by a state or Federal examiner as of that date to be chargeable against income, capital and/or general valuation allowances such as the allowance for loan and lease losses (examples of identified losses would be assets classified loss, offbalance sheet items classified loss, any provision expenses that are necessary for the FDIC-supervised institution to record in order to replenish its general valuation allowances to an adequate level, liabilities not shown on the FDICsupervised institution’s books, estimated losses in contingent liabilities, and differences in accounts which represent shortages); and (2) When measured as of any other date, those items: (i) That have been determined— (A) By an evaluation made by a state or Federal examiner at the most recent examination of an FDIC-supervised institution to be chargeable against income, capital and/or general valuation allowances; or (B) By evaluations made by the FDICsupervised institution since its most recent examination to be chargeable against income, capital and/or general valuation allowances; and E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55480 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (ii) For which the appropriate accounting entries to recognize the loss have not yet been made on the FDICsupervised institution’s books nor has the item been collected or otherwise settled. Indirect exposure means an exposure that arises from the FDIC-supervised institution’s investment in an investment fund which holds an investment in the FDIC-supervised institution’s own capital instrument or an investment in the capital of an unconsolidated financial institution. Insurance company means an insurance company as defined in section 201 of the Dodd-Frank Act (12 U.S.C. 5381). Insurance underwriting company means an insurance company as defined in section 201 of the Dodd-Frank Act (12 U.S.C. 5381) that engages in insurance underwriting activities. Insured depository institution means an insured depository institution as defined in section 3 of the Federal Deposit Insurance Act. Interest rate derivative contract means a single-currency interest rate swap, basis swap, forward rate agreement, purchased interest rate option, whenissued securities, or any other instrument linked to interest rates that gives rise to similar counterparty credit risks. International Lending Supervision Act means the International Lending Supervision Act of 1983 (12 U.S.C. 3901 et seq.). Investing bank means, with respect to a securitization, an FDIC-supervised institution that assumes the credit risk of a securitization exposure (other than an originating FDIC-supervised institution of the securitization). In the typical synthetic securitization, the investing FDIC-supervised institution sells credit protection on a pool of underlying exposures to the originating FDIC-supervised institution. Investment Company Act means the Investment Company Act of 1940 (15 U.S.C. 80 a–1 et seq.) Investment fund means a company: (1) Where all or substantially all of the assets of the company are financial assets; and (2) That has no material liabilities. Investment grade means that the entity to which the FDIC-supervised institution is exposed through a loan or security, or the reference entity with respect to a credit derivative, has adequate capacity to meet financial commitments for the projected life of the asset or exposure. Such an entity or reference entity has adequate capacity to meet financial commitments if the risk of its default is low and the full and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 timely repayment of principal and interest is expected. Investment in the capital of an unconsolidated financial institution means a net long position calculated in accordance with § 324.22(h) in an instrument that is recognized as capital for regulatory purposes by the primary supervisor of an unconsolidated regulated financial institution and is an instrument that is part of the GAAP equity of an unconsolidated unregulated financial institution, including direct, indirect, and synthetic exposures to capital instruments, excluding underwriting positions held by the FDIC-supervised institution for five or fewer business days. Investment in the FDIC-supervised institution’s own capital instrument means a net long position calculated in accordance with § 324.22(h) in the FDIC-supervised institution’s own common stock instrument, own additional tier 1 capital instrument or own tier 2 capital instrument, including direct, indirect, or synthetic exposures to such capital instruments. An investment in the FDIC-supervised institution’s own capital instrument includes any contractual obligation to purchase such capital instrument. Junior-lien residential mortgage exposure means a residential mortgage exposure that is not a first-lien residential mortgage exposure. Main index means the Standard & Poor’s 500 Index, the FTSE All-World Index, and any other index for which the FDIC-supervised institution can demonstrate to the satisfaction of the FDIC that the equities represented in the index have comparable liquidity, depth of market, and size of bid-ask spreads as equities in the Standard & Poor’s 500 Index and FTSE All-World Index. Market risk FDIC-supervised institution means an FDIC-supervised institution that is described in § 324.201(b). Money market fund means an investment fund that is subject to 17 CFR 270.2a–7 or any foreign equivalent thereof. Mortgage servicing assets (MSAs) means the contractual rights owned by an FDIC-supervised institution to service for a fee mortgage loans that are owned by others. Multilateral development bank (MDB) means the International Bank for Reconstruction and Development, the Multilateral Investment Guarantee Agency, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development, PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 the European Investment Bank, the European Investment Fund, the Nordic Investment Bank, the Caribbean Development Bank, the Islamic Development Bank, the Council of Europe Development Bank, and any other multilateral lending institution or regional development bank in which the U.S. government is a shareholder or contributing member or which the FDIC determines poses comparable credit risk. National Bank Act means the National Bank Act (12 U.S.C. 1 et seq.). Netting set means a group of transactions with a single counterparty that are subject to a qualifying master netting agreement or a qualifying crossproduct master netting agreement. For purposes of calculating risk-based capital requirements using the internal models methodology in subpart E of this part, this term does not cover a transaction: (1) That is not subject to such a master netting agreement, or (2) Where the FDIC-supervised institution has identified specific wrong-way risk. Non-significant investment in the capital of an unconsolidated financial institution means an investment in the capital of an unconsolidated financial institution where the FDIC-supervised institution owns 10 percent or less of the issued and outstanding common stock of the unconsolidated financial institution. Nth-to-default credit derivative means a credit derivative that provides credit protection only for the nth-defaulting reference exposure in a group of reference exposures. OCC means the Office of the Comptroller of the Currency, U.S. Treasury. Operating entity means a company established to conduct business with clients with the intention of earning a profit in its own right. Original maturity with respect to an off-balance sheet commitment means the length of time between the date a commitment is issued and: (1) For a commitment that is not subject to extension or renewal, the stated expiration date of the commitment; or (2) For a commitment that is subject to extension or renewal, the earliest date on which the FDIC-supervised institution can, at its option, unconditionally cancel the commitment. Originating FDIC-supervised institution, with respect to a securitization, means an FDICsupervised institution that: E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (1) Directly or indirectly originated or securitized the underlying exposures included in the securitization; or (2) Serves as an ABCP program sponsor to the securitization. Over-the-counter (OTC) derivative contract means a derivative contract that is not a cleared transaction. An OTC derivative includes a transaction: (1) Between an FDIC-supervised institution that is a clearing member and a counterparty where the FDICsupervised institution is acting as a financial intermediary and enters into a cleared transaction with a CCP that offsets the transaction with the counterparty; or (2) In which an FDIC-supervised institution that is a clearing member provides a CCP a guarantee on the performance of the counterparty to the transaction. Performance standby letter of credit (or performance bond) means an irrevocable obligation of an FDICsupervised institution to pay a thirdparty beneficiary when a customer (account party) fails to perform on any contractual nonfinancial or commercial obligation. To the extent permitted by law or regulation, performance standby letters of credit include arrangements backing, among other things, subcontractors’ and suppliers’ performance, labor and materials contracts, and construction bids. Pre-sold construction loan means any one-to-four family residential construction loan to a builder that meets the requirements of section 618(a)(1) or (2) of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991 (Pub. L. 102– 233, 105 Stat. 1761) and the following criteria: (1) The loan is made in accordance with prudent underwriting standards, meaning that the FDIC-supervised institution has obtained sufficient documentation that the buyer of the home has a legally binding written sales contract and has a firm written commitment for permanent financing of the home upon completion; (2) The purchaser is an individual(s) that intends to occupy the residence and is not a partnership, joint venture, trust, corporation, or any other entity (including an entity acting as a sole proprietorship) that is purchasing one or more of the residences for speculative purposes; (3) The purchaser has entered into a legally binding written sales contract for the residence; (4) The purchaser has not terminated the contract; (5) The purchaser has made a substantial earnest money deposit of no VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 less than 3 percent of the sales price, which is subject to forfeiture if the purchaser terminates the sales contract; provided that, the earnest money deposit shall not be subject to forfeiture by reason of breach or termination of the sales contract on the part of the builder; (6) The earnest money deposit must be held in escrow by the FDICsupervised institution or an independent party in a fiduciary capacity, and the escrow agreement must provide that in an event of default arising from the cancellation of the sales contract by the purchaser of the residence, the escrow funds shall be used to defray any cost incurred by the FDIC-supervised institution; (7) The builder must incur at least the first 10 percent of the direct costs of construction of the residence (that is, actual costs of the land, labor, and material) before any drawdown is made under the loan; (8) The loan may not exceed 80 percent of the sales price of the presold residence; and (9) The loan is not more than 90 days past due, or on nonaccrual. Protection amount (P) means, with respect to an exposure hedged by an eligible guarantee or eligible credit derivative, the effective notional amount of the guarantee or credit derivative, reduced to reflect any currency mismatch, maturity mismatch, or lack of restructuring coverage (as provided in § 324.36 or § 324.134, as appropriate). Publicly-traded means traded on: (1) Any exchange registered with the SEC as a national securities exchange under section 6 of the Securities Exchange Act; or (2) Any non-U.S.-based securities exchange that: (i) Is registered with, or approved by, a national securities regulatory authority; and (ii) Provides a liquid, two-way market for the instrument in question. Public sector entity (PSE) means a state, local authority, or other governmental subdivision below the sovereign level. Qualifying central counterparty (QCCP) means a central counterparty that: (1)(i) Is a designated financial market utility (FMU) under Title VIII of the Dodd-Frank Act; (ii) If not located in the United States, is regulated and supervised in a manner equivalent to a designated FMU; or (iii) Meets the following standards: (A) The central counterparty requires all parties to contracts cleared by the counterparty to be fully collateralized on a daily basis; PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 55481 (B) The FDIC-supervised institution demonstrates to the satisfaction of the FDIC that the central counterparty: (1) Is in sound financial condition; (2) Is subject to supervision by the Federal Reserve, the CFTC, or the Securities Exchange Commission (SEC), or, if the central counterparty is not located in the United States, is subject to effective oversight by a national supervisory authority in its home country; and (3) Meets or exceeds the riskmanagement standards for central counterparties set forth in regulations established by the Federal Reserve, the CFTC, or the SEC under Title VII or Title VIII of the Dodd-Frank Act; or if the central counterparty is not located in the United States, meets or exceeds similar risk-management standards established under the law of its home country that are consistent with international standards for central counterparty risk management as established by the relevant standard setting body of the Bank of International Settlements; and (2)(i) Provides the FDIC-supervised institution with the central counterparty’s hypothetical capital requirement or the information necessary to calculate such hypothetical capital requirement, and other information the FDIC-supervised institution is required to obtain under §§ 324.35(d)(3) and 324.133(d)(3); (ii) Makes available to the FDIC and the CCP’s regulator the information described in paragraph (2)(i) of this definition; and (iii) Has not otherwise been determined by the FDIC to not be a QCCP due to its financial condition, risk profile, failure to meet supervisory risk management standards, or other weaknesses or supervisory concerns that are inconsistent with the risk weight assigned to qualifying central counterparties under §§ 324.35 and 324.133. (3) Exception. A QCCP that fails to meet the requirements of a QCCP in the future may still be treated as a QCCP under the conditions specified in § 324.3(f). Qualifying master netting agreement means a written, legally enforceable agreement provided that: (1) The agreement creates a single legal obligation for all individual transactions covered by the agreement upon an event of default, including upon an event of receivership, insolvency, liquidation, or similar proceeding, of the counterparty; (2) The agreement provides the FDICsupervised institution the right to accelerate, terminate, and close-out on a E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55482 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations net basis all transactions under the agreement and to liquidate or set off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, or similar proceeding, of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs; (3) The agreement does not contain a walkaway clause (that is, a provision that permits a non-defaulting counterparty to make a lower payment than it otherwise would make under the agreement, or no payment at all, to a defaulter or the estate of a defaulter, even if the defaulter or the estate of the defaulter is a net creditor under the agreement); and (4) In order to recognize an agreement as a qualifying master netting agreement for purposes of this subpart, an FDICsupervised institution must comply with the requirements of § 324.3(d) with respect to that agreement. Regulated financial institution means a financial institution subject to consolidated supervision and regulation comparable to that imposed on the following U.S. financial institutions: Depository institutions, depository institution holding companies, nonbank financial companies supervised by the Federal Reserve, designated financial market utilities, securities brokerdealers, credit unions, or insurance companies. Repo-style transaction means a repurchase or reverse repurchase transaction, or a securities borrowing or securities lending transaction, including a transaction in which the FDICsupervised institution acts as agent for a customer and indemnifies the customer against loss, provided that: (1) The transaction is based solely on liquid and readily marketable securities, cash, or gold; (2) The transaction is marked-to-fair value daily and subject to daily margin maintenance requirements; (3)(i) The transaction is a ‘‘securities contract’’ or ‘‘repurchase agreement’’ under section 555 or 559, respectively, of the Bankruptcy Code (11 U.S.C. 555 or 559), a qualified financial contract under section 11(e)(8) of the Federal Deposit Insurance Act, or a netting contract between or among financial institutions under sections 401–407 of the Federal Deposit Insurance Corporation Improvement Act or the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Federal Reserve’s Regulation EE (12 CFR part 231); or (ii) If the transaction does not meet the criteria set forth in paragraph (3)(i) of this definition, then either: (A) The transaction is executed under an agreement that provides the FDICsupervised institution the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, or similar proceeding, of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs; or (B) The transaction is: (1) Either overnight or unconditionally cancelable at any time by the FDIC-supervised institution; and (2) Executed under an agreement that provides the FDIC-supervised institution the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set off collateral promptly upon an event of counterparty default; and (4) In order to recognize an exposure as a repo-style transaction for purposes of this subpart, an FDIC-supervised institution must comply with the requirements of § 324.3(e) of this part with respect to that exposure. Resecuritization means a securitization which has more than one underlying exposure and in which one or more of the underlying exposures is a securitization exposure. Resecuritization exposure means: (1) An on- or off-balance sheet exposure to a resecuritization; (2) An exposure that directly or indirectly references a resecuritization exposure. (3) An exposure to an asset-backed commercial paper program is not a resecuritization exposure if either: (i) The program-wide credit enhancement does not meet the definition of a resecuritization exposure; or (ii) The entity sponsoring the program fully supports the commercial paper through the provision of liquidity so that the commercial paper holders effectively are exposed to the default risk of the sponsor instead of the underlying exposures. Residential mortgage exposure means an exposure (other than a securitization PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 exposure, equity exposure, statutory multifamily mortgage, or presold construction loan) that is: (1) An exposure that is primarily secured by a first or subsequent lien on one-to-four family residential property; or (2)(i) An exposure with an original and outstanding amount of $1 million or less that is primarily secured by a first or subsequent lien on residential property that is not one-to-four family; and (ii) For purposes of calculating capital requirements under subpart E of this part, is managed as part of a segment of exposures with homogeneous risk characteristics and not on an individualexposure basis. Revenue obligation means a bond or similar obligation that is an obligation of a PSE, but which the PSE is committed to repay with revenues from the specific project financed rather than general tax funds. Savings and loan holding company means a savings and loan holding company as defined in section 10 of the Home Owners’ Loan Act (12 U.S.C. 1467a). Securities and Exchange Commission (SEC) means the U.S. Securities and Exchange Commission. Securities Exchange Act means the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.). Securitization exposure means: (1) An on-balance sheet or off-balance sheet credit exposure (including creditenhancing representations and warranties) that arises from a traditional securitization or synthetic securitization (including a resecuritization), or (2) An exposure that directly or indirectly references a securitization exposure described in paragraph (1) of this definition. Securitization special purpose entity (securitization SPE) means a corporation, trust, or other entity organized for the specific purpose of holding underlying exposures of a securitization, the activities of which are limited to those appropriate to accomplish this purpose, and the structure of which is intended to isolate the underlying exposures held by the entity from the credit risk of the seller of the underlying exposures to the entity. Separate account means a legally segregated pool of assets owned and held by an insurance company and maintained separately from the insurance company’s general account assets for the benefit of an individual contract holder. To be a separate account: E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (1) The account must be legally recognized as a separate account under applicable law; (2) The assets in the account must be insulated from general liabilities of the insurance company under applicable law in the event of the insurance company’s insolvency; (3) The insurance company must invest the funds within the account as directed by the contract holder in designated investment alternatives or in accordance with specific investment objectives or policies; and (4) All investment gains and losses, net of contract fees and assessments, must be passed through to the contract holder, provided that the contract may specify conditions under which there may be a minimum guarantee but must not include contract terms that limit the maximum investment return available to the policyholder. Servicer cash advance facility means a facility under which the servicer of the underlying exposures of a securitization may advance cash to ensure an uninterrupted flow of payments to investors in the securitization, including advances made to cover foreclosure costs or other expenses to facilitate the timely collection of the underlying exposures. Significant investment in the capital of an unconsolidated financial institution means an investment in the capital of an unconsolidated financial institution where the FDIC-supervised institution owns more than 10 percent of the issued and outstanding common stock of the unconsolidated financial institution. Small Business Act means the Small Business Act (15 U.S.C. 631 et seq.). Small Business Investment Act means the Small Business Investment Act of 1958 (15 U.S.C. 681 et seq.). Sovereign means a central government (including the U.S. government) or an agency, department, ministry, or central bank of a central government. Sovereign default means noncompliance by a sovereign with its external debt service obligations or the inability or unwillingness of a sovereign government to service an existing loan according to its original terms, as evidenced by failure to pay principal and interest timely and fully, arrearages, or restructuring. Sovereign exposure means: (1) A direct exposure to a sovereign; or (2) An exposure directly and unconditionally backed by the full faith and credit of a sovereign. Specific wrong-way risk means wrongway risk that arises when either: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (1) The counterparty and issuer of the collateral supporting the transaction; or (2) The counterparty and the reference asset of the transaction, are affiliates or are the same entity. Standardized market risk-weighted assets means the standardized measure for market risk calculated under § 324.204 multiplied by 12.5. Standardized total risk-weighted assets means: (1) The sum of: (i) Total risk-weighted assets for general credit risk as calculated under § 324.31; (ii) Total risk-weighted assets for cleared transactions and default fund contributions as calculated under § 324.35; (iii) Total risk-weighted assets for unsettled transactions as calculated under § 324.38; (iv) Total risk-weighted assets for securitization exposures as calculated under § 324.42; (v) Total risk-weighted assets for equity exposures as calculated under §§ 324.52 and 324.53; and (vi) For a market risk FDIC-supervised institution only, standardized market risk-weighted assets; minus (2) Any amount of the FDICsupervised institution’s allowance for loan and lease losses that is not included in tier 2 capital and any amount of allocated transfer risk reserves. State savings association means a State savings association as defined in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3)), the deposits of which are insured by the Corporation. It includes a building and loan, savings and loan, or homestead association, or a cooperative bank (other than a cooperative bank which is a state bank as defined in section 3(a)(2) of the Federal Deposit Insurance Act) organized and operating according to the laws of the State in which it is chartered or organized, or a corporation (other than a bank as defined in section 3(a)(1) of the Federal Deposit Insurance Act) that the Board of Directors of the Federal Deposit Insurance Corporation determine to be operating substantially in the same manner as a state savings association. Statutory multifamily mortgage means a loan secured by a multifamily residential property that meets the requirements under section 618(b)(1) of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991, and that meets the following criteria: 5 5 The types of loans that qualify as loans secured by multifamily residential properties are listed in the instructions for preparation of the Call Report. PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 55483 (1) The loan is made in accordance with prudent underwriting standards; (2) The principal amount of the loan at origination does not exceed 80 percent of the value of the property (or 75 percent of the value of the property if the loan is based on an interest rate that changes over the term of the loan) where the value of the property is the lower of the acquisition cost of the property or the appraised (or, if appropriate, evaluated) value of the property; (3) All principal and interest payments on the loan must have been made on a timely basis in accordance with the terms of the loan for at least one year prior to applying a 50 percent risk weight to the loan, or in the case where an existing owner is refinancing a loan on the property, all principal and interest payments on the loan being refinanced must have been made on a timely basis in accordance with the terms of the loan for at least one year prior to applying a 50 percent risk weight to the loan; (4) Amortization of principal and interest on the loan must occur over a period of not more than 30 years and the minimum original maturity for repayment of principal must not be less than 7 years; (5) Annual net operating income (before making any payment on the loan) generated by the property securing the loan during its most recent fiscal year must not be less than 120 percent of the loan’s current annual debt service (or 115 percent of current annual debt service if the loan is based on an interest rate that changes over the term of the loan) or, in the case of a cooperative or other not-for-profit housing project, the property must generate sufficient cash flow to provide comparable protection to the FDIC-supervised institution; and (6) The loan is not more than 90 days past due, or on nonaccrual. Subsidiary means, with respect to a company, a company controlled by that company. Synthetic exposure means an exposure whose value is linked to the value of an investment in the FDICsupervised institution’s own capital instrument or to the value of an investment in the capital of an unconsolidated financial institution. Synthetic securitization means a transaction in which: (1) All or a portion of the credit risk of one or more underlying exposures is retained or transferred to one or more third parties through the use of one or more credit derivatives or guarantees (other than a guarantee that transfers only the credit risk of an individual retail exposure); E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55484 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (2) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority; (3) Performance of the securitization exposures depends upon the performance of the underlying exposures; and (4) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities). Tangible capital means the amount of core capital (Tier 1 capital), as defined in accordance with § 324.2, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. Tangible equity means the amount of Tier 1 capital, as calculated in accordance with § 324.2, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. Tier 1 capital means the sum of common equity tier 1 capital and additional tier 1 capital. Tier 1 minority interest means the tier 1 capital of a consolidated subsidiary of an FDIC-supervised institution that is not owned by the FDIC-supervised institution. Tier 2 capital is defined in § 324.20(d). Total capital means the sum of tier 1 capital and tier 2 capital. Total capital minority interest means the total capital of a consolidated subsidiary of an FDIC-supervised institution that is not owned by the FDIC-supervised institution. Total leverage exposure means the sum of the following: (1) The balance sheet carrying value of all of the FDIC-supervised institution’s on-balance sheet assets, less amounts deducted from tier 1 capital under § 324.22(a), (c), and (d); (2) The potential future credit exposure (PFE) amount for each derivative contract to which the FDICsupervised institution is a counterparty (or each single-product netting set of such transactions) determined in accordance with § 324.34, but without regard to § 324.34(b); (3) 10 percent of the notional amount of unconditionally cancellable commitments made by the FDICsupervised institution; and (4) The notional amount of all other off-balance sheet exposures of the FDICsupervised institution (excluding securities lending, securities borrowing, reverse repurchase transactions, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 derivatives and unconditionally cancellable commitments). Traditional securitization means a transaction in which: (1) All or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties other than through the use of credit derivatives or guarantees; (2) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority; (3) Performance of the securitization exposures depends upon the performance of the underlying exposures; (4) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities); (5) The underlying exposures are not owned by an operating company; (6) The underlying exposures are not owned by a small business investment company defined in section 302 of the Small Business Investment Act; (7) The underlying exposures are not owned by a firm an investment in which qualifies as a community development investment under section 24 (Eleventh) of the National Bank Act; (8) The FDIC may determine that a transaction in which the underlying exposures are owned by an investment firm that exercises substantially unfettered control over the size and composition of its assets, liabilities, and off-balance sheet exposures is not a traditional securitization based on the transaction’s leverage, risk profile, or economic substance; (9) The FDIC may deem a transaction that meets the definition of a traditional securitization, notwithstanding paragraph (5), (6), or (7) of this definition, to be a traditional securitization based on the transaction’s leverage, risk profile, or economic substance; and (10) The transaction is not: (i) An investment fund; (ii) A collective investment fund (as defined in 12 CFR 344.3 (state nonmember bank), and 12 CFR 390.203 (state savings association); (iii) An employee benefit plan (as defined in paragraphs (3) and (32) of section 3 of ERISA), a ‘‘governmental plan’’ (as defined in 29 U.S.C. 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code, or any similar employee benefit plan established under the laws of a foreign jurisdiction; PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 (iv) A synthetic exposure to the capital of a financial institution to the extent deducted from capital under § 324.22; or (v) Registered with the SEC under the Investment Company Act or foreign equivalents thereof. Tranche means all securitization exposures associated with a securitization that have the same seniority level. Two-way market means a market where there are independent bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined within one day and settled at that price within a relatively short time frame conforming to trade custom. Unconditionally cancelable means with respect to a commitment, that an FDIC-supervised institution may, at any time, with or without cause, refuse to extend credit under the commitment (to the extent permitted under applicable law). Underlying exposures means one or more exposures that have been securitized in a securitization transaction. Unregulated financial institution means, for purposes of § 324.131, a financial institution that is not a regulated financial institution, including any financial institution that would meet the definition of ‘‘financial institution’’ under this section but for the ownership interest thresholds set forth in paragraph (4)(i) of that definition. U.S. Government agency means an instrumentality of the U.S. Government whose obligations are fully and explicitly guaranteed as to the timely payment of principal and interest by the full faith and credit of the U.S. Government. Value-at-Risk (VaR) means the estimate of the maximum amount that the value of one or more exposures could decline due to market price or rate movements during a fixed holding period within a stated confidence interval. Wrong-way risk means the risk that arises when an exposure to a particular counterparty is positively correlated with the probability of default of such counterparty itself. § 324.3 Operational requirements for counterparty credit risk. For purposes of calculating riskweighted assets under subparts D and E of this part: (a) Cleared transaction. In order to recognize certain exposures as cleared transactions pursuant to paragraphs E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (1)(ii), (iii), or (iv) of the definition of ‘‘cleared transaction’’ in § 324.2, the exposures must meet the applicable requirements set forth in this paragraph. (1) The offsetting transaction must be identified by the CCP as a transaction for the clearing member client. (2) The collateral supporting the transaction must be held in a manner that prevents the FDIC-supervised institution from facing any loss due to an event of default, including from a liquidation, receivership, insolvency, or similar proceeding of either the clearing member or the clearing member’s other clients. Omnibus accounts established under 17 CFR parts 190 and 300 satisfy the requirements of this paragraph (a). (3) The FDIC-supervised institution must conduct sufficient legal review to conclude with a well-founded basis (and maintain sufficient written documentation of that legal review) that in the event of a legal challenge (including one resulting from a default or receivership, insolvency, liquidation, or similar proceeding) the relevant court and administrative authorities would find the arrangements of paragraph (a)(2) of this section to be legal, valid, binding and enforceable under the law of the relevant jurisdictions. (4) The offsetting transaction with a clearing member must be transferable under the transaction documents and applicable laws in the relevant jurisdiction(s) to another clearing member should the clearing member default, become insolvent, or enter receivership, insolvency, liquidation, or similar proceedings. (b) Eligible margin loan. In order to recognize an exposure as an eligible margin loan as defined in § 324.2, an FDIC-supervised institution must conduct sufficient legal review to conclude with a well-founded basis (and maintain sufficient written documentation of that legal review) that the agreement underlying the exposure: (1) Meets the requirements of paragraph (1)(iii) of the definition of eligible margin loan in § 324.2, and (2) Is legal, valid, binding, and enforceable under applicable law in the relevant jurisdictions. (c) Qualifying cross-product master netting agreement. In order to recognize an agreement as a qualifying crossproduct master netting agreement as defined in § 324.101, an FDICsupervised institution must obtain a written legal opinion verifying the validity and enforceability of the agreement under applicable law of the relevant jurisdictions if the counterparty fails to perform upon an event of default, including upon receivership, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 insolvency, liquidation, or similar proceeding. (d) Qualifying master netting agreement. In order to recognize an agreement as a qualifying master netting agreement as defined in § 324.2, an FDIC-supervised institution must: (1) Conduct sufficient legal review to conclude with a well-founded basis (and maintain sufficient written documentation of that legal review) that: (i) The agreement meets the requirements of paragraph (2) of the definition of qualifying master netting agreement in § 324.2; and (ii) In the event of a legal challenge (including one resulting from default or from receivership, insolvency, liquidation, or similar proceeding) the relevant court and administrative authorities would find the agreement to be legal, valid, binding, and enforceable under the law of the relevant jurisdictions; and (2) Establish and maintain written procedures to monitor possible changes in relevant law and to ensure that the agreement continues to satisfy the requirements of the definition of qualifying master netting agreement in § 324.2. (e) Repo-style transaction. In order to recognize an exposure as a repo-style transaction as defined in § 324.2, an FDIC-supervised institution must conduct sufficient legal review to conclude with a well-founded basis (and maintain sufficient written documentation of that legal review) that the agreement underlying the exposure: (1) Meets the requirements of paragraph (3) of the definition of repostyle transaction in § 324.2, and (2) Is legal, valid, binding, and enforceable under applicable law in the relevant jurisdictions. (f) Failure of a QCCP to satisfy the rule’s requirements. If an FDICsupervised institution determines that a CCP ceases to be a QCCP due to the failure of the CCP to satisfy one or more of the requirements set forth in paragraphs (2)(i) through (2)(iii) of the definition of a QCCP in § 324.2, the FDIC-supervised institution may continue to treat the CCP as a QCCP for up to three months following the determination. If the CCP fails to remedy the relevant deficiency within three months after the initial determination, or the CCP fails to satisfy the requirements set forth in paragraphs (2)(i) through (2)(iii) of the definition of a QCCP continuously for a three-month period after remedying the relevant deficiency, an FDIC-supervised institution may not treat the CCP as a QCCP for the purposes of this part until after the FDIC-supervised institution has PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 55485 determined that the CCP has satisfied the requirements in paragraphs (2)(i) through (2)(iii) of the definition of a QCCP for three continuous months. § 324.4 Inadequate capital as an unsafe or unsound practice or condition. (a) General. As a condition of Federal deposit insurance, all insured depository institutions must remain in a safe and sound condition. (b) Unsafe or unsound practice. Any insured depository institution which has less than its minimum leverage capital requirement is deemed to be engaged in an unsafe or unsound practice pursuant to section 8(b)(1) and/ or 8(c) of the Federal Deposit Insurance Act (12 U.S.C. 1818(b)(1) and/or 1818(c)). Except that such an insured depository institution which has entered into and is in compliance with a written agreement with the FDIC or has submitted to the FDIC and is in compliance with a plan approved by the FDIC to increase its leverage capital ratio to such level as the FDIC deems appropriate and to take such other action as may be necessary for the insured depository institution to be operated so as not to be engaged in such an unsafe or unsound practice will not be deemed to be engaged in an unsafe or unsound practice pursuant to section 8(b)(1) and/or 8(c) of the Federal Deposit Insurance Act (12 U.S.C. 1818(b)(1) and/or 1818(c)) on account of its capital ratios. The FDIC is not precluded from taking action under section 8(b)(1), section 8(c) or any other enforcement action against an insured depository institution with capital above the minimum requirement if the specific circumstances deem such action to be appropriate. (c) Unsafe or unsound condition. Any insured depository institution with a ratio of tier 1 capital to total assets 6 that is less than two percent is deemed to be operating in an unsafe or unsound condition pursuant to section 8(a) of the Federal Deposit Insurance Act (12 U.S.C. 1818(a)). (1) An insured depository institution with a ratio of tier 1 capital to total assets of less than two percent which has entered into and is in compliance with a written agreement with the FDIC (or any other insured depository institution with a ratio of tier 1 capital to total assets of less than two percent which has entered into and is in compliance with a written agreement with its primary Federal regulator and 6 For purposes of this paragraph (c), until January 1, 2015, the term total assets shall have the same meaning as provided in 12 CFR 325.2(x). As of January 1, 2015, the term total assets shall have the same meaning as provided in 12 CFR 324.401(g). E:\FR\FM\10SER2.SGM 10SER2 55486 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations to which agreement the FDIC is a party) to increase its tier 1 leverage capital ratio to such level as the FDIC deems appropriate and to take such other action as may be necessary for the insured depository institution to be operated in a safe and sound manner, will not be subject to a proceeding by the FDIC pursuant to 12 U.S.C. 1818(a) on account of its capital ratios. (2) An insured depository institution with a ratio of tier 1 capital to total assets that is equal to or greater than two percent may be operating in an unsafe or unsound condition. The FDIC is not precluded from bringing an action pursuant to 12 U.S.C. 1818(a) where an insured depository institution has a ratio of tier 1 capital to total assets that is equal to or greater than two percent. emcdonald on DSK67QTVN1PROD with RULES2 § 324.5 Issuance of directives. (a) General. A directive is a final order issued to an FDIC-supervised institution that fails to maintain capital at or above the minimum leverage capital requirement as set forth in §§ 324.4 and 324.10. A directive issued pursuant to this section, including a plan submitted under a directive, is enforceable in the same manner and to the same extent as a final cease-and-desist order issued under section 8(b) of the Federal Deposit Insurance Act (12 U.S.C. 1818(b)). (b) Issuance of directives. If an FDICsupervised institution is operating with less than the minimum leverage capital requirement established by this regulation, the FDIC Board of Directors, or its designee(s), may issue and serve upon any FDIC-supervised institution a directive requiring the FDIC-supervised institution to restore its capital to the minimum leverage capital requirement within a specified time period. The directive may require the FDICsupervised institution to submit to the appropriate FDIC regional director, or other specified official, for review and approval, a plan describing the means and timing by which the FDICsupervised institution shall achieve the minimum leverage capital requirement. After the FDIC has approved the plan, the FDIC-supervised institution may be required under the terms of the directive to adhere to and monitor compliance with the plan. The directive may be issued during the course of an examination of the FDIC-supervised institution, or at any other time that the FDIC deems appropriate, if the FDICsupervised institution is found to be operating with less than the minimum leverage capital requirement. (c) Notice and opportunity to respond to issuance of a directive. (1) If the FDIC makes an initial determination that a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 directive should be issued to an FDICsupervised institution pursuant to paragraph (b) of this section, the FDIC, through the appropriate designated official(s), shall serve written notification upon the FDIC-supervised institution of its intent to issue a directive. The notice shall include the current leverage capital ratio, the basis upon which said ratio was calculated, the proposed capital injection, the proposed date for achieving the minimum leverage capital requirement and any other relevant information concerning the decision to issue a directive. When deemed appropriate, specific requirements of a proposed plan for meeting the minimum leverage capital requirement may be included in the notice. (2) Within 14 days of receipt of notification, the FDIC-supervised institution may file with the appropriate designated FDIC official(s) a written response, explaining why the directive should not be issued, seeking modification of its terms, or other appropriate relief. The FDIC-supervised institution’s response shall include any information, mitigating circumstances, documentation, or other relevant evidence which supports its position, and may include a plan for attaining the minimum leverage capital requirement. (3)(i) After considering the FDICsupervised institution’s response, the appropriate designated FDIC official(s) shall serve upon the FDIC-supervised institution a written determination addressing the FDIC-supervised institution’s response and setting forth the FDIC’s findings and conclusions in support of any decision to issue or not to issue a directive. The directive may be issued as originally proposed or in modified form. The directive may order the FDIC-supervised institution to: (A) Achieve the minimum leverage capital requirement established by this regulation by a certain date; (B) Submit for approval and adhere to a plan for achieving the minimum leverage capital requirement; (C) Take other action as is necessary to achieve the minimum leverage capital requirement; or (D) A combination of the above actions. (ii) If a directive is to be issued, it may be served upon the FDIC-supervised institution along with the final determination. (4) Any FDIC-supervised institution, upon a change in circumstances, may request the FDIC to reconsider the terms of a directive and may propose changes in the plan under which it is operating to meet the minimum leverage capital requirement. The directive and plan PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 continue in effect while such request is pending before the FDIC. (5) All papers filed with the FDIC must be postmarked or received by the appropriate designated FDIC official(s) within the prescribed time limit for filing. (6) Failure by the FDIC-supervised institution to file a written response to notification of intent to issue a directive within the specified time period shall constitute consent to the issuance of such directive. (d) Enforcement of a directive. (1) Whenever an FDIC-supervised institution fails to follow the directive or to submit or adhere to its capital adequacy plan, the FDIC may seek enforcement of the directive in the appropriate United States district court, pursuant to 12 U.S.C. 3907(b)(2)(B)(ii), in the same manner and to the same extent as if the directive were a final cease-and-desist order. In addition to enforcement of the directive, the FDIC may seek assessment of civil money penalties for violation of the directive against any FDIC-supervised institution, any officer, director, employee, agent, or other person participating in the conduct of the affairs of the FDICsupervised institution, pursuant to 12 U.S.C. 3909(d). (2) The directive may be issued separately, in conjunction with, or in addition to, any other enforcement mechanisms available to the FDIC, including cease-and-desist orders, orders of correction, the approval or denial of applications, or any other actions authorized by law. In addition to addressing an FDIC-supervised institution’s minimum leverage capital requirement, the capital directive may also address minimum risk-based capital requirements that are to be maintained and calculated in accordance with § 324.10, and, for state savings associations, the minimum tangible capital requirements set for in § 324.10. §§ 324.6 through 324.9 [Reserved] Subpart B—Capital Ratio Requirements and Buffers § 324.10 Minimum capital requirements. (a) Minimum capital requirements. An FDIC-supervised institution must maintain the following minimum capital ratios: (1) A common equity tier 1 capital ratio of 4.5 percent. (2) A tier 1 capital ratio of 6 percent. (3) A total capital ratio of 8 percent. (4) A leverage ratio of 4 percent. (5) For advanced approaches FDICsupervised institutions, a E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations supplementary leverage ratio of 3 percent. (6) For state savings associations, a tangible capital ratio of 1.5 percent. (b) Standardized capital ratio calculations. Other than as provided in paragraph (c) of this section: (1) Common equity tier 1 capital ratio. An FDIC-supervised institution’s common equity tier 1 capital ratio is the ratio of the FDIC-supervised institution’s common equity tier 1 capital to standardized total riskweighted assets; (2) Tier 1 capital ratio. An FDICsupervised institution’s tier 1 capital ratio is the ratio of the FDIC-supervised institution’s tier 1 capital to standardized total risk-weighted assets; (3) Total capital ratio. An FDICsupervised institution’s total capital ratio is the ratio of the FDIC-supervised institution’s total capital to standardized total risk-weighted assets; and (4) Leverage ratio. An FDICsupervised institution’s leverage ratio is the ratio of the FDIC-supervised institution’s tier 1 capital to the FDICsupervised institution’s average total consolidated assets as reported on the FDIC-supervised institution’s Call Report minus amounts deducted from tier 1 capital under §§ 324.22(a), (c), and (d). (5) State savings association tangible capital ratio. (i) Until January 1, 2015, a state savings association shall determine its tangible capital ratio in accordance with 12 CFR 390.468. (ii) As of January 1, 2015, a state savings association’s tangible capital ratio is the ratio of the state savings association’s core capital (tier 1 capital) to total assets. For purposes of this paragraph, the term total assets shall have the meaning provided in § 324.401(g). (c) Advanced approaches capital ratio calculations. An advanced approaches FDIC-supervised institution that has completed the parallel run process and received notification from the FDIC pursuant to § 324.121(d) must determine its regulatory capital ratios as described in this paragraph (c). (1) Common equity tier 1 capital ratio. The FDIC-supervised institution’s common equity tier 1 capital ratio is the lower of: (i) The ratio of the FDIC-supervised institution’s common equity tier 1 capital to standardized total riskweighted assets; and (ii) The ratio of the FDIC-supervised institution’s common equity tier 1 capital to advanced approaches total risk-weighted assets. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) Tier 1 capital ratio. The FDICsupervised institution’s tier 1 capital ratio is the lower of: (i) The ratio of the FDIC-supervised institution’s tier 1 capital to standardized total risk-weighted assets; and (ii) The ratio of the FDIC-supervised institution’s tier 1 capital to advanced approaches total risk-weighted assets. (3) Total capital ratio. The FDICsupervised institution’s total capital ratio is the lower of: (i) The ratio of the FDIC-supervised institution’s total capital to standardized total risk-weighted assets; and (ii) The ratio of the FDIC-supervised institution’s advanced-approachesadjusted total capital to advanced approaches total risk-weighted assets. An FDIC-supervised institution’s advanced-approaches-adjusted total capital is the FDIC-supervised institution’s total capital after being adjusted as follows: (A) An advanced approaches FDICsupervised institution must deduct from its total capital any allowance for loan and lease losses included in its tier 2 capital in accordance with § 324.20(d)(3); and (B) An advanced approaches FDICsupervised institution must add to its total capital any eligible credit reserves that exceed the FDIC-supervised institution’s total expected credit losses to the extent that the excess reserve amount does not exceed 0.6 percent of the FDIC-supervised institution’s credit risk-weighted assets. (4) Supplementary leverage ratio. An advanced approaches FDIC-supervised institution’s supplementary leverage ratio is the simple arithmetic mean of the ratio of its tier 1 capital to total leverage exposure calculated as of the last day of each month in the reporting quarter. (5) State savings association tangible capital ratio. (i) Until January 1, 2014, a state savings association shall determine its tangible capital ratio in accordance with 12 CFR 390.468. (ii) As of January 1, 2014, a state savings association’s tangible capital ratio is the ratio of the state savings association’s core capital (tier 1 capital) to total assets. For purposes of this paragraph, the term total assets shall have the meaning provided in 12 CFR 324.401(g). (d) Capital adequacy. (1) Notwithstanding the minimum requirements in this part, An FDICsupervised institution must maintain capital commensurate with the level and nature of all risks to which the FDIC-supervised institution is exposed. PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 55487 (2) An FDIC-supervised institution must have a process for assessing its overall capital adequacy in relation to its risk profile and a comprehensive strategy for maintaining an appropriate level of capital. (3) Insured depository institutions with less than the minimum leverage capital requirement. (i) An insured depository institution making an application to the FDIC operating with less than the minimum leverage capital requirement does not have adequate capital and therefore has inadequate financial resources. (ii) Any insured depository institution operating with an inadequate capital structure, and therefore inadequate financial resources, will not receive approval for an application requiring the FDIC to consider the adequacy of its capital structure or its financial resources. (iii) In any merger, acquisition, or other type of business combination where the FDIC must give its approval, where it is required to consider the adequacy of the financial resources of the existing and proposed institutions, and where the resulting entity is either insured by the FDIC or not otherwise federally insured, approval will not be granted when the resulting entity does not meet the minimum leverage capital requirement. (iv) Exceptions. Notwithstanding the provisions of paragraphs (d)(3)(i), (ii) and (iii) of this section: (A) The FDIC, in its discretion, may approve an application pursuant to the Federal Deposit Insurance Act where it is required to consider the adequacy of capital if it finds that such approval must be taken to prevent the closing of a depository institution or to facilitate the acquisition of a closed depository institution, or, when severe financial conditions exist which threaten the stability of an insured depository institution or of a significant number of depository institutions insured by the FDIC or of insured depository institutions possessing significant financial resources, if such action is taken to lessen the risk to the FDIC posed by an insured depository institution under such threat of instability. (B) The FDIC, in its discretion, may approve an application pursuant to the Federal Deposit Insurance Act where it is required to consider the adequacy of capital or the financial resources of the insured depository institution where it finds that the applicant has committed to and is in compliance with a reasonable plan to meet its minimum leverage capital requirements within a reasonable period of time. E:\FR\FM\10SER2.SGM 10SER2 55488 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations § 324.11 Capital conservation buffer and countercyclical capital buffer amount. (a) Capital conservation buffer. (1) Composition of the capital conservation buffer. The capital conservation buffer is composed solely of common equity tier 1 capital. (2) Definitions. For purposes of this section, the following definitions apply: (i) Eligible retained income. The eligible retained income of an FDICsupervised institution is the FDICsupervised institution’s net income for the four calendar quarters preceding the current calendar quarter, based on the FDIC-supervised institution’s quarterly Call Reports, net of any distributions and associated tax effects not already reflected in net income. (ii) Maximum payout ratio. The maximum payout ratio is the percentage of eligible retained income that an FDICsupervised institution can pay out in the form of distributions and discretionary bonus payments during the current calendar quarter. The maximum payout ratio is based on the FDIC-supervised institution’s capital conservation buffer, calculated as of the last day of the previous calendar quarter, as set forth in Table 1 to § 324.11. (iii) Maximum payout amount. An FDIC-supervised institution’s maximum payout amount for the current calendar quarter is equal to the FDIC-supervised institution’s eligible retained income, multiplied by the applicable maximum payout ratio, as set forth in Table 1 to § 324.11. (iv) Private sector credit exposure. Private sector credit exposure means an exposure to a company or an individual that is not an exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, an MDB, a PSE, or a GSE. (3) Calculation of capital conservation buffer. (i) An FDIC-supervised institution’s capital conservation buffer is equal to the lowest of the following ratios, calculated as of the last day of the previous calendar quarter based on the FDIC-supervised institution’s most recent Call Report: (A) The FDIC-supervised institution’s common equity tier 1 capital ratio minus the FDIC-supervised institution’s minimum common equity tier 1 capital ratio requirement under § 324.10; (B) The FDIC-supervised institution’s tier 1 capital ratio minus the FDICsupervised institution’s minimum tier 1 capital ratio requirement under § 324.10; and (C) The FDIC-supervised institution’s total capital ratio minus the FDICsupervised institution’s minimum total capital ratio requirement under § 324.10; or (ii) Notwithstanding paragraphs (a)(3)(i)(A)–(C) of this section, if the FDIC-supervised institution’s common equity tier 1, tier 1 or total capital ratio is less than or equal to the FDICsupervised institution’s minimum common equity tier 1, tier 1 or total capital ratio requirement under § 324.10, respectively, the FDICsupervised institution’s capital conservation buffer is zero. (4) Limits on distributions and discretionary bonus payments. (i) An FDIC-supervised institution shall not make distributions or discretionary bonus payments or create an obligation to make such distributions or payments during the current calendar quarter that, in the aggregate, exceed the maximum payout amount. (ii) An FDIC-supervised institution with a capital conservation buffer that is greater than 2.5 percent plus 100 percent of its applicable countercyclical capital buffer, in accordance with paragraph (b) of this section, is not subject to a maximum payout amount under this section. (iii) Negative eligible retained income. Except as provided in paragraph (a)(4)(iv) of this section, an FDICsupervised institution may not make distributions or discretionary bonus payments during the current calendar quarter if the FDIC-supervised institution’s: (A) Eligible retained income is negative; and (B) Capital conservation buffer was less than 2.5 percent as of the end of the previous calendar quarter. (iv) Prior approval. Notwithstanding the limitations in paragraphs (a)(4)(i) through (iii) of this section, the FDIC may permit an FDIC-supervised institution to make a distribution or discretionary bonus payment upon a request of the FDIC-supervised institution, if the FDIC determines that the distribution or discretionary bonus payment would not be contrary to the purposes of this section, or to the safety and soundness of the FDIC-supervised institution. In making such a determination, the FDIC will consider the nature and extent of the request and the particular circumstances giving rise to the request. TABLE 1 TO § 324.11—CALCULATION OF MAXIMUM PAYOUT AMOUNT Maximum payout ratio (as a percentage of eligible retained income) emcdonald on DSK67QTVN1PROD with RULES2 Capital conservation buffer Greater than 2.5 percent plus 100 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount. Less than or equal to 2.5 percent plus 100 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount, and greater than 1.875 percent plus 75 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount. Less than or equal to 1.875 percent plus 75 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount, and greater than 1.25 percent plus 50 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount. Less than or equal to 1.25 percent plus 50 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount, and greater than 0.625 percent plus 25 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount. Less than or equal to 0.625 percent plus 25 percent of the FDIC-supervised institution’s applicable countercyclical capital buffer amount. (v) Other limitations on distributions. Additional limitations on distributions may apply to an FDIC-supervised institution under 12 CFR 303.241 and subpart H of this part. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (b) Countercyclical capital buffer amount—(1) General. An advanced approaches FDIC-supervised institution must calculate a countercyclical capital buffer amount in accordance with the PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 No payout ratio limitation applies. 60 percent. 40 percent. 20 percent. 0 percent. following paragraphs for purposes of determining its maximum payout ratio under Table 1 to § 324.11. (i) Extension of capital conservation buffer. The countercyclical capital E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations buffer amount is an extension of the capital conservation buffer as described in paragraph (a) of this section. (ii) Amount. An advanced approaches FDIC-supervised institution has a countercyclical capital buffer amount determined by calculating the weighted average of the countercyclical capital buffer amounts established for the national jurisdictions where the FDICsupervised institution’s private sector credit exposures are located, as specified in paragraphs (b)(2) and (3) of this section. (iii) Weighting. The weight assigned to a jurisdiction’s countercyclical capital buffer amount is calculated by dividing the total risk-weighted assets for the FDIC-supervised institution’s private sector credit exposures located in the jurisdiction by the total risk-weighted assets for all of the FDIC-supervised institution’s private sector credit exposures. The methodology an FDICsupervised institution uses for determining risk-weighted assets for purposes of this paragraph (b) must be the methodology that determines its risk-based capital ratios under § 324.10. Notwithstanding the previous sentence, the risk-weighted asset amount for a private sector credit exposure that is a covered position under subpart F of this part is its specific risk add-on as determined under § 324.210 multiplied by 12.5. (iv) Location. (A) Except as provided in paragraphs (b)(1)(iv)(B) and (b)(1)(iv)(C) of this section, the location of a private sector credit exposure is the national jurisdiction where the borrower is located (that is, where it is incorporated, chartered, or similarly established or, if the borrower is an individual, where the borrower resides). (B) If, in accordance with subparts D or E of this part, the FDIC-supervised institution has assigned to a private sector credit exposure a risk weight associated with a protection provider on a guarantee or credit derivative, the location of the exposure is the national jurisdiction where the protection provider is located. (C) The location of a securitization exposure is the location of the underlying exposures, or, if the underlying exposures are located in more than one national jurisdiction, the national jurisdiction where the underlying exposures with the largest aggregate unpaid principal balance are located. For purposes of this paragraph, the location of an underlying exposure shall be the location of the borrower, determined consistent with paragraph (b)(1)(iv)(A) of this section. (2) Countercyclical capital buffer amount for credit exposures in the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 United States—(i) Initial countercyclical capital buffer amount with respect to credit exposures in the United States. The initial countercyclical capital buffer amount in the United States is zero. (ii) Adjustment of the countercyclical capital buffer amount. The FDIC will adjust the countercyclical capital buffer amount for credit exposures in the United States in accordance with applicable law.7 (iii) Range of countercyclical capital buffer amount. The FDIC will adjust the countercyclical capital buffer amount for credit exposures in the United States between zero percent and 2.5 percent of risk-weighted assets. (iv) Adjustment determination. The FDIC will base its decision to adjust the countercyclical capital buffer amount under this section on a range of macroeconomic, financial, and supervisory information indicating an increase in systemic risk including, but not limited to, the ratio of credit to gross domestic product, a variety of asset prices, other factors indicative of relative credit and liquidity expansion or contraction, funding spreads, credit condition surveys, indices based on credit default swap spreads, options implied volatility, and measures of systemic risk. (v) Effective date of adjusted countercyclical capital buffer amount— (A) Increase adjustment. A determination by the FDIC under paragraph (b)(2)(ii) of this section to increase the countercyclical capital buffer amount will be effective 12 months from the date of announcement, unless the FDIC establishes an earlier effective date and includes a statement articulating the reasons for the earlier effective date. (B) Decrease adjustment. A determination by the FDIC to decrease the established countercyclical capital buffer amount under paragraph (b)(2)(ii) of this section will be effective on the day following announcement of the final determination or the earliest date permissible under applicable law or regulation, whichever is later. (vi) Twelve month sunset. The countercyclical capital buffer amount will return to zero percent 12 months after the effective date that the adjusted countercyclical capital buffer amount is announced, unless the FDIC announces a decision to maintain the adjusted countercyclical capital buffer amount or adjust it again before the expiration of the 12-month period. 7 The FDIC expects that any adjustment will be based on a determination made jointly by the Board, OCC, and FDIC. PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 55489 (3) Countercyclical capital buffer amount for foreign jurisdictions. The FDIC will adjust the countercyclical capital buffer amount for private sector credit exposures to reflect decisions made by foreign jurisdictions consistent with due process requirements described in paragraph (b)(2) of this section. §§ 324.12 through 324.19 [Reserved] Subpart C—Definition of Capital § 324.20 Capital components and eligibility criteria for regulatory capital instruments. (a) Regulatory capital components. An FDIC-supervised institution’s regulatory capital components are: (1) Common equity tier 1 capital; (2) Additional tier 1 capital; and (3) Tier 2 capital. (b) Common equity tier 1 capital. Common equity tier 1 capital is the sum of the common equity tier 1 capital elements in this paragraph (b), minus regulatory adjustments and deductions in § 324.22. The common equity tier 1 capital elements are: (1) Any common stock instruments (plus any related surplus) issued by the FDIC-supervised institution, net of treasury stock, and any capital instruments issued by mutual banking organizations, that meet all the following criteria: (i) The instrument is paid-in, issued directly by the FDIC-supervised institution, and represents the most subordinated claim in a receivership, insolvency, liquidation, or similar proceeding of the FDIC-supervised institution; (ii) The holder of the instrument is entitled to a claim on the residual assets of the FDIC-supervised institution that is proportional with the holder’s share of the FDIC-supervised institution’s issued capital after all senior claims have been satisfied in a receivership, insolvency, liquidation, or similar proceeding; (iii) The instrument has no maturity date, can only be redeemed via discretionary repurchases with the prior approval of the FDIC, and does not contain any term or feature that creates an incentive to redeem; (iv) The FDIC-supervised institution did not create at issuance of the instrument through any action or communication an expectation that it will buy back, cancel, or redeem the instrument, and the instrument does not include any term or feature that might give rise to such an expectation; (v) Any cash dividend payments on the instrument are paid out of the FDICsupervised institution’s net income and retained earnings and are not subject to E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55490 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations a limit imposed by the contractual terms governing the instrument. An FDICsupervised institution must obtain prior FDIC approval for any dividend payment involving a reduction or retirement of capital stock in accordance with 12 CFR 303.241; (vi) The FDIC-supervised institution has full discretion at all times to refrain from paying any dividends and making any other distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of any other restrictions on the FDICsupervised institution; (vii) Dividend payments and any other distributions on the instrument may be paid only after all legal and contractual obligations of the FDICsupervised institution have been satisfied, including payments due on more senior claims; (viii) The holders of the instrument bear losses as they occur equally, proportionately, and simultaneously with the holders of all other common stock instruments before any losses are borne by holders of claims on the FDICsupervised institution with greater priority in a receivership, insolvency, liquidation, or similar proceeding; (ix) The paid-in amount is classified as equity under GAAP; (x) The FDIC-supervised institution, or an entity that the FDIC-supervised institution controls, did not purchase or directly or indirectly fund the purchase of the instrument; (xi) The instrument is not secured, not covered by a guarantee of the FDICsupervised institution or of an affiliate of the FDIC-supervised institution, and is not subject to any other arrangement that legally or economically enhances the seniority of the instrument; (xii) The instrument has been issued in accordance with applicable laws and regulations; and (xiii) The instrument is reported on the FDIC-supervised institution’s regulatory financial statements separately from other capital instruments. (2) Retained earnings. (3) Accumulated other comprehensive income (AOCI) as reported under GAAP.8 (4) Any common equity tier 1 minority interest, subject to the limitations in § 324.21(c). (5) Notwithstanding the criteria for common stock instruments referenced above, an FDIC-supervised institution’s common stock issued and held in trust for the benefit of its employees as part 8 See § 324.22 for specific adjustments related to AOCI. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 of an employee stock ownership plan does not violate any of the criteria in paragraph (b)(1)(iii), paragraph (b)(1)(iv) or paragraph (b)(1)(xi) of this section, provided that any repurchase of the stock is required solely by virtue of ERISA for an instrument of an FDICsupervised institution that is not publicly-traded. In addition, an instrument issued by an FDICsupervised institution to its employee stock ownership plan does not violate the criterion in paragraph (b)(1)(x) of this section. (c) Additional tier 1 capital. Additional tier 1 capital is the sum of additional tier 1 capital elements and any related surplus, minus the regulatory adjustments and deductions in § 324.22. Additional tier 1 capital elements are: (1) Instruments (plus any related surplus) that meet the following criteria: (i) The instrument is issued and paidin; (ii) The instrument is subordinated to depositors, general creditors, and subordinated debt holders of the FDICsupervised institution in a receivership, insolvency, liquidation, or similar proceeding; (iii) The instrument is not secured, not covered by a guarantee of the FDICsupervised institution or of an affiliate of the FDIC-supervised institution, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument; (iv) The instrument has no maturity date and does not contain a dividend step-up or any other term or feature that creates an incentive to redeem; and (v) If callable by its terms, the instrument may be called by the FDICsupervised institution only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called earlier than five years upon the occurrence of a regulatory event that precludes the instrument from being included in additional tier 1 capital, a tax event, or if the issuing entity is required to register as an investment company pursuant to the Investment Company Act. In addition: (A) The FDIC-supervised institution must receive prior approval from the FDIC to exercise a call option on the instrument. (B) The FDIC-supervised institution does not create at issuance of the instrument, through any action or communication, an expectation that the call option will be exercised. (C) Prior to exercising the call option, or immediately thereafter, the FDICsupervised institution must either: Replace the instrument to be called with PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 an equal amount of instruments that meet the criteria under paragraph (b) of this section or this paragraph (c); 9 or demonstrate to the satisfaction of the FDIC that following redemption, the FDIC-supervised institution will continue to hold capital commensurate with its risk. (vi) Redemption or repurchase of the instrument requires prior approval from the FDIC. (vii) The FDIC-supervised institution has full discretion at all times to cancel dividends or other distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of other restrictions on the FDICsupervised institution except in relation to any distributions to holders of common stock or instruments that are pari passu with the instrument. (viii) Any cash dividend payments on the instrument are paid out of the FDICsupervised institution’s net income and retained earnings and are not subject to a limit imposed by the contractual terms governing the instrument. An FDICsupervised institution must obtain prior FDIC approval for any dividend payment involving a reduction or retirement of capital stock in accordance with 12 CFR 303.241. (ix) The instrument does not have a credit-sensitive feature, such as a dividend rate that is reset periodically based in whole or in part on the FDICsupervised institution’s credit quality, but may have a dividend rate that is adjusted periodically independent of the FDIC-supervised institution’s credit quality, in relation to general market interest rates or similar adjustments. (x) The paid-in amount is classified as equity under GAAP. (xi) The FDIC-supervised institution, or an entity that the FDIC-supervised institution controls, did not purchase or directly or indirectly fund the purchase of the instrument. (xii) The instrument does not have any features that would limit or discourage additional issuance of capital by the FDIC-supervised institution, such as provisions that require the FDIC-supervised institution to compensate holders of the instrument if a new instrument is issued at a lower price during a specified time frame. (xiii) If the instrument is not issued directly by the FDIC-supervised institution or by a subsidiary of the FDIC-supervised institution that is an operating entity, the only asset of the issuing entity is its investment in the 9 Replacement can be concurrent with redemption of existing additional tier 1 capital instruments. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations capital of the FDIC-supervised institution, and proceeds must be immediately available without limitation to the FDIC-supervised institution or to the FDIC-supervised institution’s top-tier holding company in a form which meets or exceeds all of the other criteria for additional tier 1 capital instruments.10 (xiv) For an advanced approaches FDIC-supervised institution, the governing agreement, offering circular, or prospectus of an instrument issued after the date upon which the FDICsupervised institution becomes subject to this part as set forth in § 324.1(f) must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the FDIC-supervised institution enters into a receivership, insolvency, liquidation, or similar proceeding. (2) Tier 1 minority interest, subject to the limitations in § 324.21(d), that is not included in the FDIC-supervised institution’s common equity tier 1 capital. (3) Any and all instruments that qualified as tier 1 capital under the FDIC’s general risk-based capital rules under 12 CFR part 325, appendix A (state nonmember banks) and 12 CFR part 390, subpart Z (state savings associations) as then in effect, that were issued under the Small Business Jobs Act of 2010 11 or prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008.12 (4) Notwithstanding the criteria for additional tier 1 capital instruments referenced above: (i) An instrument issued by an FDICsupervised institution and held in trust for the benefit of its employees as part of an employee stock ownership plan does not violate any of the criteria in paragraph (c)(1)(iii) of this section, provided that any repurchase is required solely by virtue of ERISA for an instrument of an FDIC-supervised institution that is not publicly-traded. In addition, an instrument issued by an FDIC-supervised institution to its employee stock ownership plan does not violate the criteria in paragraph (c)(1)(v) or paragraph (c)(1)(xi) of this section; and (ii) An instrument with terms that provide that the instrument may be called earlier than five years upon the occurrence of a rating agency event does not violate the criterion in paragraph (c)(1)(v) of this section provided that the instrument was issued and included in 10 See 77 FR 52856 (August 30, 2012). 11 Public Law 111–240; 124 Stat. 2504 (2010). 12 Public Law 110–343, 122 Stat. 3765 (2008). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 an FDIC-supervised institution’s tier 1 capital prior to the January 1, 2014, and that such instrument satisfies all other criteria under this paragraph (c). (d) Tier 2 Capital. Tier 2 capital is the sum of tier 2 capital elements and any related surplus, minus regulatory adjustments and deductions in § 324.22. Tier 2 capital elements are: (1) Instruments (plus related surplus) that meet the following criteria: (i) The instrument is issued and paidin; (ii) The instrument is subordinated to depositors and general creditors of the FDIC-supervised institution; (iii) The instrument is not secured, not covered by a guarantee of the FDICsupervised institution or of an affiliate of the FDIC-supervised institution, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument in relation to more senior claims; (iv) The instrument has a minimum original maturity of at least five years. At the beginning of each of the last five years of the life of the instrument, the amount that is eligible to be included in tier 2 capital is reduced by 20 percent of the original amount of the instrument (net of redemptions) and is excluded from regulatory capital when the remaining maturity is less than one year. In addition, the instrument must not have any terms or features that require, or create significant incentives for, the FDIC-supervised institution to redeem the instrument prior to maturity; 13 and (v) The instrument, by its terms, may be called by the FDIC-supervised institution only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called sooner upon the occurrence of an event that would preclude the instrument from being included in tier 2 capital, a tax event, or if the issuing entity is required to register as an investment company pursuant to the Investment Company Act. In addition: (A) The FDIC-supervised institution must receive the prior approval of the FDIC to exercise a call option on the instrument. (B) The FDIC-supervised institution does not create at issuance, through action or communication, an expectation the call option will be exercised. (C) Prior to exercising the call option, or immediately thereafter, the FDICsupervised institution must either: 13 An instrument that by its terms automatically converts into a tier 1 capital instrument prior to five years after issuance complies with the five-year maturity requirement of this criterion. PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 55491 Replace any amount called with an equivalent amount of an instrument that meets the criteria for regulatory capital under this section; 14 or demonstrate to the satisfaction of the FDIC that following redemption, the FDICsupervised institution would continue to hold an amount of capital that is commensurate with its risk. (vi) The holder of the instrument must have no contractual right to accelerate payment of principal or interest on the instrument, except in the event of a receivership, insolvency, liquidation, or similar proceeding of the FDICsupervised institution. (vii) The instrument has no creditsensitive feature, such as a dividend or interest rate that is reset periodically based in whole or in part on the FDICsupervised institution’s credit standing, but may have a dividend rate that is adjusted periodically independent of the FDIC-supervised institution’s credit standing, in relation to general market interest rates or similar adjustments. (viii) The FDIC-supervised institution, or an entity that the FDIC-supervised institution controls, has not purchased and has not directly or indirectly funded the purchase of the instrument. (ix) If the instrument is not issued directly by the FDIC-supervised institution or by a subsidiary of the FDIC-supervised institution that is an operating entity, the only asset of the issuing entity is its investment in the capital of the FDIC-supervised institution, and proceeds must be immediately available without limitation to the FDIC-supervised institution or the FDIC-supervised institution’s top-tier holding company in a form that meets or exceeds all the other criteria for tier 2 capital instruments under this section.15 (x) Redemption of the instrument prior to maturity or repurchase requires the prior approval of the FDIC. (xi) For an advanced approaches FDIC-supervised institution, the governing agreement, offering circular, or prospectus of an instrument issued after the date on which the advanced approaches FDIC-supervised institution becomes subject to this part under § 324.1(f) must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the FDIC-supervised institution enters into a receivership, insolvency, liquidation, or similar proceeding. 14 A FDIC-supervised institution may replace tier 2 capital instruments concurrent with the redemption of existing tier 2 capital instruments. 15 A FDIC-supervised institution may disregard de minimis assets related to the operation of the issuing entity for purposes of this criterion. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55492 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (2) Total capital minority interest, subject to the limitations set forth in § 324.21(e), that is not included in the FDIC-supervised institution’s tier 1 capital. (3) ALLL up to 1.25 percent of the FDIC-supervised institution’s standardized total risk-weighted assets not including any amount of the ALLL (and excluding in the case of a market risk FDIC-supervised institution, its standardized market risk-weighted assets). (4) Any instrument that qualified as tier 2 capital under the FDIC’s general risk-based capital rules under 12 CFR part 325, appendix A (state nonmember banks) and 12 CFR part 390, appendix Z (state saving associations) as then in effect, that were issued under the Small Business Jobs Act of 2010,16 or prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008.17 (5) For an FDIC-supervised institution that makes an AOCI opt-out election (as defined in § 324.22(b)(2), 45 percent of pretax net unrealized gains on availablefor-sale preferred stock classified as an equity security under GAAP and available-for-sale equity exposures. (6) Notwithstanding the criteria for tier 2 capital instruments referenced above, an instrument with terms that provide that the instrument may be called earlier than five years upon the occurrence of a rating agency event does not violate the criterion in paragraph (d)(1)(v) of this section provided that the instrument was issued and included in an FDIC-supervised institution’s tier 1 or tier 2 capital prior to January 1, 2014, and that such instrument satisfies all other criteria under this paragraph (d). (e) FDIC approval of a capital element. (1) An FDIC-supervised institution must receive FDIC prior approval to include a capital element (as listed in this section) in its common equity tier 1 capital, additional tier 1 capital, or tier 2 capital unless the element: (i) Was included in an FDICsupervised institution’s tier 1 capital or tier 2 capital prior to May 19, 2010, in accordance with the FDIC’s risk-based capital rules that were effective as of that date and the underlying instrument may continue to be included under the criteria set forth in this section; or (ii) Is equivalent, in terms of capital quality and ability to absorb losses with respect to all material terms, to a regulatory capital element the FDIC determined may be included in regulatory capital pursuant to paragraph (e)(3) of this section. 16 Public 17 Public Law 111–240; 124 Stat. 2504 (2010) Law 110–343, 122 Stat. 3765 (2008) VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) When considering whether an FDIC-supervised institution may include a regulatory capital element in its common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, the FDIC will consult with the OCC and the Federal Reserve. (3) After determining that a regulatory capital element may be included in an FDIC-supervised institution’s common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, the FDIC will make its decision publicly available, including a brief description of the material terms of the regulatory capital element and the rationale for the determination. § 324.21 Minority interest. (a) Applicability. For purposes of § 324.20, an FDIC-supervised institution is subject to the minority interest limitations in this section if: (1) A consolidated subsidiary of the FDIC-supervised institution has issued regulatory capital that is not owned by the FDIC-supervised institution; and (2) For each relevant regulatory capital ratio of the consolidated subsidiary, the ratio exceeds the sum of the subsidiary’s minimum regulatory capital requirements plus its capital conservation buffer. (b) Difference in capital adequacy standards at the subsidiary level. For purposes of the minority interest calculations in this section, if the consolidated subsidiary issuing the capital is not subject to capital adequacy standards similar to those of the FDICsupervised institution, the FDICsupervised institution must assume that the capital adequacy standards of the FDIC-supervised institution apply to the subsidiary. (c) Common equity tier 1 minority interest includable in the common equity tier 1 capital of the FDICsupervised institution. For each consolidated subsidiary of an FDICsupervised institution, the amount of common equity tier 1 minority interest the FDIC-supervised institution may include in common equity tier 1 capital is equal to: (1) The common equity tier 1 minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s common equity tier 1 capital that is not owned by the FDIC-supervised institution, multiplied by the difference between the common equity tier 1 capital of the subsidiary and the lower of: (i) The amount of common equity tier 1 capital the subsidiary must hold, or would be required to hold pursuant to paragraph (b) of this section, to avoid restrictions on distributions and PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the FDIC-supervised institution that relate to the subsidiary multiplied by (B) The common equity tier 1 capital ratio the subsidiary must maintain to avoid restrictions on distributions and discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor. (d) Tier 1 minority interest includable in the tier 1 capital of the FDICsupervised institution. For each consolidated subsidiary of the FDICsupervised institution, the amount of tier 1 minority interest the FDICsupervised institution may include in tier 1 capital is equal to: (1) The tier 1 minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s tier 1 capital that is not owned by the FDIC-supervised institution multiplied by the difference between the tier 1 capital of the subsidiary and the lower of: (i) The amount of tier 1 capital the subsidiary must hold, or would be required to hold pursuant to paragraph (b) of this section, to avoid restrictions on distributions and discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the FDIC-supervised institution that relate to the subsidiary multiplied by (B) The tier 1 capital ratio the subsidiary must maintain to avoid restrictions on distributions and discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor. (e) Total capital minority interest includable in the total capital of the FDIC-supervised institution. For each consolidated subsidiary of the FDICsupervised institution, the amount of total capital minority interest the FDICsupervised institution may include in total capital is equal to: (1) The total capital minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s total capital that is not owned by the FDIC-supervised institution multiplied by the difference between the total capital of the subsidiary and the lower of: (i) The amount of total capital the subsidiary must hold, or would be E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations required to hold pursuant to paragraph (b) of this section, to avoid restrictions on distributions and discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the FDIC-supervised institution that relate to the subsidiary multiplied by (B) The total capital ratio the subsidiary must maintain to avoid restrictions on distributions and discretionary bonus payments under § 324.11 or equivalent standards established by the subsidiary’s home country supervisor. emcdonald on DSK67QTVN1PROD with RULES2 § 324.22 Regulatory capital adjustments and deductions. (a) Regulatory capital deductions from common equity tier 1 capital. An FDICsupervised institution must deduct from the sum of its common equity tier 1 capital elements the items set forth in this paragraph: (1) Goodwill, net of associated deferred tax liabilities (DTLs) in accordance with paragraph (e) of this section, including goodwill that is embedded in the valuation of a significant investment in the capital of an unconsolidated financial institution in the form of common stock (and that is reflected in the consolidated financial statements of the FDIC-supervised institution), in accordance with paragraph (d) of this section; (2) Intangible assets, other than MSAs, net of associated DTLs in accordance with paragraph (e) of this section; (3) Deferred tax assets (DTAs) that arise from net operating loss and tax credit carryforwards net of any related valuation allowances and net of DTLs in accordance with paragraph (e) of this section; (4) Any gain-on-sale in connection with a securitization exposure; (5)(i) Any defined benefit pension fund net asset, net of any associated DTL in accordance with paragraph (e) of this section, held by a depository institution holding company. With the prior approval of the FDIC, this deduction is not required for any defined benefit pension fund net asset to the extent the depository institution holding company has unrestricted and unfettered access to the assets in that fund. (ii) For an insured depository institution, no deduction is required. (iii) An FDIC-supervised institution must risk weight any portion of the defined benefit pension fund asset that is not deducted under paragraphs (a)(5)(i) or (a)(5)(ii) of this section as if VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the FDIC-supervised institution directly holds a proportional ownership share of each exposure in the defined benefit pension fund. (6) For an advanced approaches FDICsupervised institution that has completed the parallel run process and that has received notification from the FDIC pursuant to § 324.121(d), the amount of expected credit loss that exceeds its eligible credit reserves; and (7) With respect to a financial subsidiary, the aggregate amount of the FDIC-supervised institution’s outstanding equity investment, including retained earnings, in its financial subsidiaries (as defined in 12 CFR 362.17). An FDIC-supervised institution must not consolidate the assets and liabilities of a financial subsidiary with those of the parent bank, and no other deduction is required under paragraph (c) of this section for investments in the capital instruments of financial subsidiaries. (8) (i) A state savings association must deduct the aggregate amount of its outstanding investments, (both equity and debt) in, and extensions of credit to, subsidiaries that are not includable subsidiaries as defined in paragraph (a)(8)(iv) of this section and may not consolidate the assets and liabilities of the subsidiary with those of the state savings association. Any such deductions shall be from assets and common equity tier 1 capital, except as provided in paragraphs (a)(8)(ii) and (iii) of this section. (ii) If a state savings association has any investments (both debt and equity) in, or extensions of credit to, one or more subsidiaries engaged in any activity that would not fall within the scope of activities in which includable subsidiaries as defined in paragraph (a)(8)(iv) of this section may engage, it must deduct such investments and extensions of credit from assets and, thus, common equity tier 1 capital in accordance with paragraph (a)(8)(i) of this section. (iii) If a state savings association holds a subsidiary (either directly or through a subsidiary) that is itself a domestic depository institution, the FDIC may, in its sole discretion upon determining that the amount of common equity tier 1 capital that would be required would be higher if the assets and liabilities of such subsidiary were consolidated with those of the parent state savings association than the amount that would be required if the parent state savings association’s investment were deducted pursuant to paragraphs (a)(8)(i) and (ii) of this section, consolidate the assets and liabilities of that subsidiary with those of the parent state savings PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 55493 association in calculating the capital adequacy of the parent state savings association, regardless of whether the subsidiary would otherwise be an includable subsidiary as defined in paragraph (a)(8)(iv) of this section. (iv) For purposes of this section, the term includable subsidiary means a subsidiary of a state savings association that is: (A) Engaged solely in activities that are permissible for a national bank; (B) Engaged in activities not permissible for a national bank, but only if acting solely as agent for its customers and such agency position is clearly documented in the state savings association’s files; (C) Engaged solely in mortgagebanking activities; (D)(1) Itself an insured depository institution or a company the sole investment of which is an insured depository institution, and (2) Was acquired by the parent state savings association prior to May 1, 1989; or (E) A subsidiary of any state savings association existing as a state savings association on August 9, 1989 that— (1) Was chartered prior to October 15, 1982, as a savings bank or a cooperative bank under state law, or (2) Acquired its principal assets from an association that was chartered prior to October 15, 1982, as a savings bank or a cooperative bank under state law. (9) Identified losses. An FDICsupervised institution must deduct identified losses (to the extent that common equity tier 1 capital would have been reduced if the appropriate accounting entries to reflect the identified losses had been recorded on the FDIC-supervised institution’s books). (b) Regulatory adjustments to common equity tier 1 capital. (1) An FDIC-supervised institution must adjust the sum of common equity tier 1 capital elements pursuant to the requirements set forth in this paragraph. Such adjustments to common equity tier 1 capital must be made net of the associated deferred tax effects. (i) An FDIC-supervised institution that makes an AOCI opt-out election (as defined in paragraph (b)(2) of this section) must make the adjustments required under § 324.22(b)(2)(i). (ii) An FDIC-supervised institution that is an advanced approaches FDICsupervised institution, and an FDICsupervised institution that has not made an AOCI opt-out election (as defined in paragraph (b)(2) of this section), must deduct any accumulated net gains and add any accumulated net losses on cash flow hedges included in AOCI that E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55494 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations relate to the hedging of items that are not recognized at fair value on the balance sheet. (iii) An FDIC-supervised institution must deduct any net gain and add any net loss related to changes in the fair value of liabilities that are due to changes in the FDIC-supervised institution’s own credit risk. An advanced approaches FDIC-supervised institution also must deduct the credit spread premium over the risk free rate for derivatives that are liabilities. (2) AOCI opt-out election. (i) An FDIC-supervised institution that is not an advanced approaches FDICsupervised institution may make a onetime election to opt out of the requirement to include all components of AOCI (with the exception of accumulated net gains and losses on cash flow hedges related to items that are not fair-valued on the balance sheet) in common equity tier 1 capital (AOCI opt-out election). An FDIC-supervised institution that makes an AOCI opt-out election in accordance with this paragraph (b)(2) must adjust common equity tier 1 capital as follows: (A) Subtract any net unrealized gains and add any net unrealized losses on available-for-sale securities; (B) Subtract any net unrealized losses on available-for-sale preferred stock classified as an equity security under GAAP and available-for-sale equity exposures; (C) Subtract any accumulated net gains and add any accumulated net losses on cash flow hedges; (D) Subtract any amounts recorded in AOCI attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (excluding, at the FDICsupervised institution’s option, the portion relating to pension assets deducted under paragraph (a)(5) of this section); and (E) Subtract any net unrealized gains and add any net unrealized losses on held-to-maturity securities that are included in AOCI. (ii) An FDIC-supervised institution that is not an advanced approaches FDIC-supervised institution must make its AOCI opt-out election in its Call Report filed for the first reporting period after the date required for such FDICsupervised institution to comply with subpart A of this part as set forth in § 324.1(f). (iii) With respect to an FDICsupervised institution that is not an advanced approaches FDIC-supervised institution, each of its subsidiary banking organizations that is subject to regulatory capital requirements issued VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 by the Federal Reserve, the FDIC, or the OCC 18 must elect the same option as the FDIC-supervised institution pursuant to this paragraph (b)(2). (iv) With prior notice to the FDIC, an FDIC-supervised institution resulting from a merger, acquisition, or purchase transaction and that is not an advanced approaches FDIC-supervised institution may change its AOCI opt-out election in its Call Report filed for the first reporting period after the date required for such FDIC-supervised institution to comply with subpart A of this part as set forth in § 324.1(f) if: (A) Other than as set forth in paragraph (b)(2)(iv)(C) of this section, the merger, acquisition, or purchase transaction involved the acquisition or purchase of all or substantially all of either the assets or voting stock of another banking organization that is subject to regulatory capital requirements issued by the Federal Reserve, the FDIC, or the OCC; (B) Prior to the merger, acquisition, or purchase transaction, only one of the banking organizations involved in the transaction made an AOCI opt-out election under this section; and (C) An FDIC-supervised institution may, with the prior approval of the FDIC, change its AOCI opt-out election under this paragraph in the case of a merger, acquisition, or purchase transaction that meets the requirements set forth at paragraph (b)(2)(iv)(B) of this section, but does not meet the requirements of paragraph (b)(2)(iv)(A). In making such a determination, the FDIC may consider the terms of the merger, acquisition, or purchase transaction, as well as the extent of any changes to the risk profile, complexity, and scope of operations of the FDICsupervised institution resulting from the merger, acquisition, or purchase transaction. (c) Deductions from regulatory capital related to investments in capital instruments—19 (1) Investment in the FDIC-supervised institution’s own capital instruments. An FDICsupervised institution must deduct an investment in the FDIC-supervised institution’s own capital instruments as follows: (i) An FDIC-supervised institution must deduct an investment in the FDICsupervised institution’s own common 18 These rules include the regulatory capital requirements set forth at 12 CFR part 3 (OCC); 12 CFR part 225 (Board); 12 CFR part 325, and 12 CFR part 390 (FDIC). 19 The FDIC-supervised institution must calculate amounts deducted under paragraphs (c) through (f) of this section after it calculates the amount of ALLL includable in tier 2 capital under § 324.20(d)(3). PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 stock instruments from its common equity tier 1 capital elements to the extent such instruments are not excluded from regulatory capital under § 324.20(b)(1); (ii) An FDIC-supervised institution must deduct an investment in the FDICsupervised institution’s own additional tier 1 capital instruments from its additional tier 1 capital elements; and (iii) An FDIC-supervised institution must deduct an investment in the FDICsupervised institution’s own tier 2 capital instruments from its tier 2 capital elements. (2) Corresponding deduction approach. For purposes of subpart C of this part, the corresponding deduction approach is the methodology used for the deductions from regulatory capital related to reciprocal cross holdings (as described in paragraph (c)(3) of this section), non-significant investments in the capital of unconsolidated financial institutions (as described in paragraph (c)(4) of this section), and non-common stock significant investments in the capital of unconsolidated financial institutions (as described in paragraph (c)(5) of this section). Under the corresponding deduction approach, an FDIC-supervised institution must make deductions from the component of capital for which the underlying instrument would qualify if it were issued by the FDIC-supervised institution itself, as described in paragraphs (c)(2)(i)–(iii) of this section. If the FDIC-supervised institution does not have a sufficient amount of a specific component of capital to effect the required deduction, the shortfall must be deducted according to paragraph (f) of this section. (i) If an investment is in the form of an instrument issued by a financial institution that is not a regulated financial institution, the FDICsupervised institution must treat the instrument as: (A) A common equity tier 1 capital instrument if it is common stock or represents the most subordinated claim in liquidation of the financial institution; and (B) An additional tier 1 capital instrument if it is subordinated to all creditors of the financial institution and is senior in liquidation only to common shareholders. (ii) If an investment is in the form of an instrument issued by a regulated financial institution and the instrument does not meet the criteria for common equity tier 1, additional tier 1 or tier 2 capital instruments under § 324.20, the FDIC-supervised institution must treat the instrument as: E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 (A) A common equity tier 1 capital instrument if it is common stock included in GAAP equity or represents the most subordinated claim in liquidation of the financial institution; (B) An additional tier 1 capital instrument if it is included in GAAP equity, subordinated to all creditors of the financial institution, and senior in a receivership, insolvency, liquidation, or similar proceeding only to common shareholders; and (C) A tier 2 capital instrument if it is not included in GAAP equity but considered regulatory capital by the primary supervisor of the financial institution. (iii) If an investment is in the form of a non-qualifying capital instrument (as defined in § 324.300(c)), the FDICsupervised institution must treat the instrument as: (A) An additional tier 1 capital instrument if such instrument was included in the issuer’s tier 1 capital prior to May 19, 2010; or (B) A tier 2 capital instrument if such instrument was included in the issuer’s tier 2 capital (but not includable in tier 1 capital) prior to May 19, 2010. (3) Reciprocal cross holdings in the capital of financial institutions. An FDIC-supervised institution must deduct investments in the capital of other financial institutions it holds reciprocally, where such reciprocal cross holdings result from a formal or informal arrangement to swap, exchange, or otherwise intend to hold each other’s capital instruments, by applying the corresponding deduction approach. (4) Non-significant investments in the capital of unconsolidated financial institutions. (i) An FDIC-supervised institution must deduct its nonsignificant investments in the capital of unconsolidated financial institutions (as defined in § 324.2) that, in the aggregate, exceed 10 percent of the sum of the FDIC-supervised institution’s common equity tier 1 capital elements minus all deductions from and adjustments to common equity tier 1 capital elements required under paragraphs (a) through (c)(3) of this section (the 10 percent threshold for non-significant investments) by applying the corresponding deduction approach.20 The deductions described in this section 20 With the prior written approval of the FDIC, for the period of time stipulated by the FDIC, a FDICsupervised institution is not required to deduct a non-significant investment in the capital instrument of an unconsolidated financial institution pursuant to this paragraph if the financial institution is in distress and if such investment is made for the purpose of providing financial support to the financial institution, as determined by the FDIC. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 are net of associated DTLs in accordance with paragraph (e) of this section. In addition, an FDIC-supervised institution that underwrites a failed underwriting, with the prior written approval of the FDIC, for the period of time stipulated by the FDIC, is not required to deduct a non-significant investment in the capital of an unconsolidated financial institution pursuant to this paragraph to the extent the investment is related to the failed underwriting.21 (ii) The amount to be deducted under this section from a specific capital component is equal to: (A) The FDIC-supervised institution’s non-significant investments in the capital of unconsolidated financial institutions exceeding the 10 percent threshold for non-significant investments, multiplied by (B) The ratio of the FDIC-supervised institution’s non-significant investments in the capital of unconsolidated financial institutions in the form of such capital component to the FDICsupervised institution’s total nonsignificant investments in unconsolidated financial institutions. (5) Significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock. An FDIC-supervised institution must deduct its significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock by applying the corresponding deduction approach.22 The deductions described in this section are net of associated DTLs in accordance with paragraph (e) of this section. In addition, with the prior written approval of the FDIC, for the period of time stipulated by the FDIC, an FDICsupervised institution that underwrites a failed underwriting is not required to deduct a significant investment in the capital of an unconsolidated financial institution pursuant to this paragraph if such investment is related to such failed underwriting. (d) Items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds. (1) An FDIC21 Any non-significant investments in the capital of unconsolidated financial institutions that do not exceed the 10 percent threshold for non-significant investments under this section must be assigned the appropriate risk weight under subparts D, E, or F of this part, as applicable. 22 With prior written approval of the FDIC, for the period of time stipulated by the FDIC, a FDICsupervised institution is not required to deduct a significant investment in the capital instrument of an unconsolidated financial institution in distress which is not in the form of common stock pursuant to this section if such investment is made for the purpose of providing financial support to the financial institution as determined by the FDIC. PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 55495 supervised institution must deduct from common equity tier 1 capital elements the amount of each of the items set forth in this paragraph that, individually, exceeds 10 percent of the sum of the FDIC-supervised institution’s common equity tier 1 capital elements, less adjustments to and deductions from common equity tier 1 capital required under paragraphs (a) through (c) of this section (the 10 percent common equity tier 1 capital deduction threshold). (i) DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks, net of any related valuation allowances and net of DTLs, in accordance with paragraph (e) of this section. An FDIC-supervised institution is not required to deduct from the sum of its common equity tier 1 capital elements DTAs (net of any related valuation allowances and net of DTLs, in accordance with § 324.22(e)) arising from timing differences that the FDIC-supervised institution could realize through net operating loss carrybacks. The FDIC-supervised institution must risk weight these assets at 100 percent. For an FDIC-supervised institution that is a member of a consolidated group for tax purposes, the amount of DTAs that could be realized through net operating loss carrybacks may not exceed the amount that the FDIC-supervised institution could reasonably expect to have refunded by its parent holding company. (ii) MSAs net of associated DTLs, in accordance with paragraph (e) of this section. (iii) Significant investments in the capital of unconsolidated financial institutions in the form of common stock, net of associated DTLs in accordance with paragraph (e) of this section.23 Significant investments in the capital of unconsolidated financial institutions in the form of common stock subject to the 10 percent common equity tier 1 capital deduction threshold may be reduced by any goodwill embedded in the valuation of such investments deducted by the FDICsupervised institution pursuant to paragraph (a)(1) of this section. In addition, with the prior written approval of the FDIC, for the period of time stipulated by the FDIC, an FDICsupervised institution that underwrites 23 With the prior written approval of the FDIC, for the period of time stipulated by the FDIC, a FDICsupervised institution is not required to deduct a significant investment in the capital instrument of an unconsolidated financial institution in distress in the form of common stock pursuant to this section if such investment is made for the purpose of providing financial support to the financial institution as determined by the FDIC. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55496 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations a failed underwriting is not required to deduct a significant investment in the capital of an unconsolidated financial institution in the form of common stock pursuant to this paragraph (d) if such investment is related to such failed underwriting. (2) An FDIC-supervised institution must deduct from common equity tier 1 capital elements the items listed in paragraph (d)(1) of this section that are not deducted as a result of the application of the 10 percent common equity tier 1 capital deduction threshold, and that, in aggregate, exceed 17.65 percent of the sum of the FDICsupervised institution’s common equity tier 1 capital elements, minus adjustments to and deductions from common equity tier 1 capital required under paragraphs (a) through (c) of this section, minus the items listed in paragraph (d)(1) of this section (the 15 percent common equity tier 1 capital deduction threshold). Any goodwill that has been deducted under paragraph (a)(1) of this section can be excluded from the significant investments in the capital of unconsolidated financial institutions in the form of common stock.24 (3) For purposes of calculating the amount of DTAs subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds, an FDICsupervised institution may exclude DTAs and DTLs relating to adjustments made to common equity tier 1 capital under § paragraph (b) of this section. An FDIC-supervised institution that elects to exclude DTAs relating to adjustments under paragraph (b) of this section also must exclude DTLs and must do so consistently in all future calculations. An FDIC-supervised institution may change its exclusion preference only after obtaining the prior approval of the FDIC. (e) Netting of DTLs against assets subject to deduction. (1) Except as described in paragraph (e)(3) of this section, netting of DTLs against assets that are subject to deduction under this section is permitted, but not required, if the following conditions are met: (i) The DTL is associated with the asset; and (ii) The DTL would be extinguished if the associated asset becomes impaired or is derecognized under GAAP. (2) A DTL may only be netted against a single asset. 24 The amount of the items in paragraph (d) of this section that is not deducted from common equity tier 1 capital pursuant to this section must be included in the risk-weighted assets of the FDICsupervised institution and assigned a 250 percent risk weight. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (3) For purposes of calculating the amount of DTAs subject to the threshold deduction in paragraph (d) of this section, the amount of DTAs that arise from net operating loss and tax credit carryforwards, net of any related valuation allowances, and of DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks, net of any related valuation allowances, may be offset by DTLs (that have not been netted against assets subject to deduction pursuant to paragraph (e)(1) of this section) subject to the conditions set forth in this paragraph. (i) Only the DTAs and DTLs that relate to taxes levied by the same taxation authority and that are eligible for offsetting by that authority may be offset for purposes of this deduction. (ii) The amount of DTLs that the FDIC-supervised institution nets against DTAs that arise from net operating loss and tax credit carryforwards, net of any related valuation allowances, and against DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks, net of any related valuation allowances, must be allocated in proportion to the amount of DTAs that arise from net operating loss and tax credit carryforwards (net of any related valuation allowances, but before any offsetting of DTLs) and of DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks (net of any related valuation allowances, but before any offsetting of DTLs), respectively. (4) An FDIC-supervised institution may offset DTLs embedded in the carrying value of a leveraged lease portfolio acquired in a business combination that are not recognized under GAAP against DTAs that are subject to paragraph (d) of this section in accordance with this paragraph (e). (5) An FDIC-supervised institution must net DTLs against assets subject to deduction under this section in a consistent manner from reporting period to reporting period. An FDIC-supervised institution may change its preference regarding the manner in which it nets DTLs against specific assets subject to deduction under § 324.22 only after obtaining the prior approval of the FDIC. (f) Insufficient amounts of a specific regulatory capital component to effect deductions. Under the corresponding deduction approach, if an FDICsupervised institution does not have a sufficient amount of a specific component of capital to effect the PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 required deduction after completing the deductions required under paragraph (d) of this section, the FDIC-supervised institution must deduct the shortfall from the next higher (that is, more subordinated) component of regulatory capital. (g) Treatment of assets that are deducted. An FDIC-supervised institution must exclude from standardized total risk-weighted assets and, as applicable, advanced approaches total risk-weighted assets any item deducted from regulatory capital under paragraphs (a), (c), and (d) of this section. (h) Net long position. (1) For purposes of calculating an investment in the FDIC-supervised institution’s own capital instrument and an investment in the capital of an unconsolidated financial institution under this section, the net long position is the gross long position in the underlying instrument determined in accordance with paragraph (h)(2) of this section, as adjusted to recognize a short position in the same instrument calculated in accordance with paragraph (h)(3) of this section. (2) Gross long position. The gross long position is determined as follows: (i) For an equity exposure that is held directly, the adjusted carrying value as that term is defined in § 324.51(b); (ii) For an exposure that is held directly and is not an equity exposure or a securitization exposure, the exposure amount as that term is defined in § 324.2; (iii) For an indirect exposure, the FDIC-supervised institution’s carrying value of the investment in the investment fund, provided that, alternatively: (A) An FDIC-supervised institution may, with the prior approval of the FDIC, use a conservative estimate of the amount of its investment in its own capital instruments or the capital of an unconsolidated financial institution held through a position in an index; or (B) An FDIC-supervised institution may calculate the gross long position for the FDIC-supervised institution’s own capital instruments or the capital of an unconsolidated financial institution by multiplying the FDIC-supervised institution’s carrying value of its investment in the investment fund by either: (1) The highest stated investment limit (in percent) for investments in the FDIC-supervised institution’s own capital instruments or the capital of unconsolidated financial institutions as stated in the prospectus, partnership agreement, or similar contract defining E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations permissible investments of the investment fund or (2) The investment fund’s actual holdings of own capital instruments or the capital of unconsolidated financial institutions. (iv) For a synthetic exposure, the amount of the FDIC-supervised institution’s loss on the exposure if the reference capital instrument were to have a value of zero. (3) Adjustments to reflect a short position. In order to adjust the gross long position to recognize a short position in the same instrument, the following criteria must be met: (i) The maturity of the short position must match the maturity of the long position, or the short position has a residual maturity of at least one year (maturity requirement), or (ii) For a position that is a trading asset or trading liability (whether on- or off-balance sheet) as reported on the FDIC-supervised institution’s Call Report, if the FDIC-supervised institution has a contractual right or obligation to sell the long position at a specific point in time and the counterparty to the contract has an obligation to purchase the long position if the FDIC-supervised institution exercises its right to sell, this point in time may be treated as the maturity of the long position such that the maturity of the long position and short position are deemed to match for purposes of the maturity requirement, even if the maturity of the short position is less than one year; and (iii) For an investment in the FDICsupervised institution’s own capital instrument under paragraph (c)(1) of this section or an investment in a capital of an unconsolidated financial institution under paragraphs (c)(4), (c)(5), and (d)(1)(iii) of this section: (A) An FDIC-supervised institution may only net a short position against a long position in the FDIC-supervised institution’s own capital instrument under paragraph (c)(1) if the short position involves no counterparty credit risk. (B) A gross long position in an FDICsupervised institution’s own capital instrument or in a capital instrument of an unconsolidated financial institution resulting from a position in an index may be netted against a short position in the same index. Long and short positions in the same index without maturity dates are considered to have matching maturities. (C) A short position in an index that is hedging a long cash or synthetic position in an FDIC-supervised institution’s own capital instrument or in a capital instrument of an VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 unconsolidated financial institution can be decomposed to provide recognition of the hedge. More specifically, the portion of the index that is composed of the same underlying instrument that is being hedged may be used to offset the long position if both the long position being hedged and the short position in the index are reported as a trading asset or trading liability (whether on- or offbalance sheet) on the FDIC-supervised institution’s Call Report, and the hedge is deemed effective by the FDICsupervised institution’s internal control processes, which have not been found to be inadequate by the FDIC. §§ 324.23 through 324.29 [Reserved] Subpart D—Risk-Weighted Assets— Standardized Approach § 324.30 Applicability. (a) This subpart sets forth methodologies for determining riskweighted assets for purposes of the generally applicable risk-based capital requirements for all FDIC-supervised institutions. (b) Notwithstanding paragraph (a) of this section, a market risk FDICsupervised institution must exclude from its calculation of risk-weighted assets under this subpart the riskweighted asset amounts of all covered positions, as defined in subpart F of this part (except foreign exchange positions that are not trading positions, OTC derivative positions, cleared transactions, and unsettled transactions). Risk-Weighted Assets for General Credit Risk § 324.31 Mechanics for calculating riskweighted assets for general credit risk. (a) General risk-weighting requirements. An FDIC-supervised institution must apply risk weights to its exposures as follows: (1) An FDIC-supervised institution must determine the exposure amount of each on-balance sheet exposure, each OTC derivative contract, and each offbalance sheet commitment, trade and transaction-related contingency, guarantee, repo-style transaction, financial standby letter of credit, forward agreement, or other similar transaction that is not: (i) An unsettled transaction subject to § 324.38; (ii) A cleared transaction subject to § 324.35; (iii) A default fund contribution subject to § 324.35; (iv) A securitization exposure subject to §§ 324.41 through 324.45; or PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 55497 (v) An equity exposure (other than an equity OTC derivative contract) subject to §§ 324.51 through 324.53. (2) The FDIC-supervised institution must multiply each exposure amount by the risk weight appropriate to the exposure based on the exposure type or counterparty, eligible guarantor, or financial collateral to determine the risk-weighted asset amount for each exposure. (b) Total risk-weighted assets for general credit risk equals the sum of the risk-weighted asset amounts calculated under this section. § 324.32 General risk weights. (a) Sovereign exposures—(1) Exposures to the U.S. government. (i) Notwithstanding any other requirement in this subpart, an FDIC-supervised institution must assign a zero percent risk weight to: (A) An exposure to the U.S. government, its central bank, or a U.S. government agency; and (B) The portion of an exposure that is directly and unconditionally guaranteed by the U.S. government, its central bank, or a U.S. government agency. This includes a deposit or other exposure, or the portion of a deposit or other exposure, that is insured or otherwise unconditionally guaranteed by the FDIC or National Credit Union Administration. (ii) An FDIC-supervised institution must assign a 20 percent risk weight to the portion of an exposure that is conditionally guaranteed by the U.S. government, its central bank, or a U.S. government agency. This includes an exposure, or the portion of an exposure, that is conditionally guaranteed by the FDIC or National Credit Union Administration. (2) Other sovereign exposures. In accordance with Table 1 to § 324.32, an FDIC-supervised institution must assign a risk weight to a sovereign exposure based on the CRC applicable to the sovereign or the sovereign’s OECD membership status if there is no CRC applicable to the sovereign. TABLE 1 TO § 324.32—RISK WEIGHTS FOR SOVEREIGN EXPOSURES Risk Weight (in percent) CRC .......................... 0–1 2 3 4–6 7 OECD Member with No CRC Non-OECD Member with No CRC .................................. E:\FR\FM\10SER2.SGM 10SER2 0 20 50 100 150 0 100 55498 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 1 TO § 324.32—RISK WEIGHTS unions. An FDIC-supervised institution FOR SOVEREIGN EXPOSURES—Con- must assign a 20 percent risk weight to an exposure to a depository institution tinued emcdonald on DSK67QTVN1PROD with RULES2 Sovereign Default ................. 150 (3) Certain sovereign exposures. Notwithstanding paragraph (a)(2) of this section, an FDIC-supervised institution may assign to a sovereign exposure a risk weight that is lower than the applicable risk weight in Table 1 to § 324.32 if: (i) The exposure is denominated in the sovereign’s currency; (ii) The FDIC-supervised institution has at least an equivalent amount of liabilities in that currency; and (iii) The risk weight is not lower than the risk weight that the home country supervisor allows FDIC-supervised institutions under its jurisdiction to assign to the same exposures to the sovereign. (4) Exposures to a non-OECD member sovereign with no CRC. Except as provided in paragraphs (a)(3), (a)(5) and (a)(6) of this section, an FDICsupervised institution must assign a 100 percent risk weight to an exposure to a sovereign if the sovereign does not have a CRC. (5) Exposures to an OECD member sovereign with no CRC. Except as provided in paragraph (a)(6) of this section, an FDIC-supervised institution must assign a 0 percent risk weight to an exposure to a sovereign that is a member of the OECD if the sovereign does not have a CRC. (6) Sovereign default. An FDICsupervised institution must assign a 150 percent risk weight to a sovereign exposure immediately upon determining that an event of sovereign default has occurred, or if an event of sovereign default has occurred during the previous five years. (b) Certain supranational entities and multilateral development banks (MDBs). An FDIC-supervised institution must assign a zero percent risk weight to an exposure to the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, or an MDB. (c) Exposures to GSEs. (1) An FDICsupervised institution must assign a 20 percent risk weight to an exposure to a GSE other than an equity exposure or preferred stock. (2) An FDIC-supervised institution must assign a 100 percent risk weight to preferred stock issued by a GSE. (d) Exposures to depository institutions, foreign banks, and credit unions—(1) Exposures to U.S. depository institutions and credit VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 or credit union that is organized under the laws of the United States or any state thereof, except as otherwise provided under paragraph (d)(3) of this section. (2) Exposures to foreign banks. (i) Except as otherwise provided under paragraphs (d)(2)(iv) and (d)(3) of this section, an FDIC-supervised institution must assign a risk weight to an exposure to a foreign bank, in accordance with Table 2 to § 324.32, based on the CRC that corresponds to the foreign bank’s home country or the OECD membership status of the foreign bank’s home country if there is no CRC applicable to the foreign bank’s home country. TABLE 2 TO § 324.32—RISK WEIGHTS FOR EXPOSURES TO FOREIGN BANKS Risk Weight (in percent) CRC .......................... 0–1 2 3 4–7 20 50 100 150 OECD Member with No CRC Non-OECD Member with No CRC .................................. Sovereign Default ................. 20 100 150 (ii) An FDIC-supervised institution must assign a 20 percent risk weight to an exposure to a foreign bank whose home country is a member of the OECD and does not have a CRC. (iii) An FDIC-supervised institution must assign a 100 percent risk weight to an exposure to a foreign bank whose home country is not a member of the OECD and does not have a CRC, with the exception of self-liquidating, traderelated contingent items that arise from the movement of goods, and that have a maturity of three months or less, which may be assigned a 20 percent risk weight. (iv) An FDIC-supervised institution must assign a 150 percent risk weight to an exposure to a foreign bank immediately upon determining that an event of sovereign default has occurred in the bank’s home country, or if an event of sovereign default has occurred in the foreign bank’s home country during the previous five years. (3) An FDIC-supervised institution must assign a 100 percent risk weight to an exposure to a financial institution if the exposure may be included in that financial institution’s capital unless the exposure is: (i) An equity exposure; PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 (ii) A significant investment in the capital of an unconsolidated financial institution in the form of common stock pursuant to § 324.22(d)(iii); (iii) Deducted from regulatory capital under § 324.22; or (iv) Subject to a 150 percent risk weight under paragraph (d)(2)(iv) or Table 2 of paragraph (d)(2) of this section. (e) Exposures to public sector entities (PSEs)—(1) Exposures to U.S. PSEs. (i) An FDIC-supervised institution must assign a 20 percent risk weight to a general obligation exposure to a PSE that is organized under the laws of the United States or any state or political subdivision thereof. (ii) An FDIC-supervised institution must assign a 50 percent risk weight to a revenue obligation exposure to a PSE that is organized under the laws of the United States or any state or political subdivision thereof. (2) Exposures to foreign PSEs. (i) Except as provided in paragraphs (e)(1) and (e)(3) of this section, an FDICsupervised institution must assign a risk weight to a general obligation exposure to a PSE, in accordance with Table 3 to § 324.32, based on the CRC that corresponds to the PSE’s home country or the OECD membership status of the PSE’s home country if there is no CRC applicable to the PSE’s home country. (ii) Except as provided in paragraphs (e)(1) and (e)(3) of this section, an FDICsupervised institution must assign a risk weight to a revenue obligation exposure to a PSE, in accordance with Table 4 to § 324.32, based on the CRC that corresponds to the PSE’s home country; or the OECD membership status of the PSE’s home country if there is no CRC applicable to the PSE’s home country. (3) An FDIC-supervised institution may assign a lower risk weight than would otherwise apply under Tables 3 or 4 to § 324.32 to an exposure to a foreign PSE if: (i) The PSE’s home country supervisor allows banks under its jurisdiction to assign a lower risk weight to such exposures; and (ii) The risk weight is not lower than the risk weight that corresponds to the PSE’s home country in accordance with Table 1 to § 324.32. TABLE 3 TO § 324.32—RISK WEIGHTS FOR NON-U.S. PSE GENERAL OBLIGATIONS Risk Weight (in percent) CRC .......................... E:\FR\FM\10SER2.SGM 10SER2 0–1 2 3 20 50 100 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (iii) Is not 90 days or more past due TABLE 3 TO § 324.32—RISK WEIGHTS FOR NON-U.S. PSE GENERAL OBLI- or carried in nonaccrual status; and (iv) Is not restructured or modified. GATIONS—Continued (2) An FDIC-supervised institution must assign a 100 percent risk weight to a first-lien residential mortgage OECD Member with No CRC 20 exposure that does not meet the criteria Non-OECD Member with No in paragraph (g)(1) of this section, and CRC .................................. 100 to junior-lien residential mortgage Sovereign Default ................. 150 exposures. (3) For the purpose of this paragraph TABLE 4 TO § 324.32—RISK WEIGHTS (g), if an FDIC-supervised institution FOR NON-U.S. PSE REVENUE OBLI- holds the first-lien and junior-lien(s) residential mortgage exposures, and no GATIONS other party holds an intervening lien, the FDIC-supervised institution must Risk Weight combine the exposures and treat them (in percent) as a single first-lien residential mortgage CRC .......................... 0–1 50 exposure. 2–3 50 (4) A loan modified or restructured 4–7 150 solely pursuant to the U.S. Treasury’s OECD Member with No CRC 50 Home Affordable Mortgage Program is Non-OECD Member with No not modified or restructured for CRC .................................. 100 purposes of this section. Sovereign Default ................. 150 (h) Pre-sold construction loans. An FDIC-supervised institution must assign (4) Exposures to PSEs from an OECD a 50 percent risk weight to a pre-sold member sovereign with no CRC. (i) An construction loan unless the purchase FDIC-supervised institution must assign contract is cancelled, in which case an a 20 percent risk weight to a general FDIC-supervised institution must assign obligation exposure to a PSE whose a 100 percent risk weight. home country is an OECD member (i) Statutory multifamily mortgages. sovereign with no CRC. An FDIC-supervised institution must (ii) An FDIC-supervised institution assign a 50 percent risk weight to a must assign a 50 percent risk weight to statutory multifamily mortgage. a revenue obligation exposure to a PSE (j) High-volatility commercial real whose home country is an OECD estate (HVCRE) exposures. An FDICmember sovereign with no CRC. supervised institution must assign a 150 (5) Exposures to PSEs whose home percent risk weight to an HVCRE country is not an OECD member exposure. sovereign with no CRC. An FDIC(k) Past due exposures. Except for a supervised institution must assign a 100 sovereign exposure or a residential percent risk weight to an exposure to a mortgage exposure, an FDIC-supervised PSE whose home country is not a institution must determine a risk weight member of the OECD and does not have for an exposure that is 90 days or more a CRC. past due or on nonaccrual according to (6) An FDIC-supervised institution the requirements set forth in this must assign a 150 percent risk weight to paragraph. a PSE exposure immediately upon (1) An FDIC-supervised institution determining that an event of sovereign must assign a 150 percent risk weight to default has occurred in a PSE’s home the portion of the exposure that is not country or if an event of sovereign guaranteed or that is unsecured. default has occurred in the PSE’s home (2) An FDIC-supervised institution country during the previous five years. may assign a risk weight to the (f) Corporate exposures. An FDICguaranteed portion of a past due supervised institution must assign a 100 exposure based on the risk weight that percent risk weight to all its corporate applies under § 324.36 if the guarantee exposures. or credit derivative meets the (g) Residential mortgage exposures. requirements of that section. (1) An FDIC-supervised institution must (3) An FDIC-supervised institution assign a 50 percent risk weight to a first- may assign a risk weight to the lien residential mortgage exposure that: collateralized portion of a past due (i) Is secured by a property that is exposure based on the risk weight that either owner-occupied or rented; applies under § 324.37 if the collateral (ii) Is made in accordance with meets the requirements of that section. prudent underwriting standards, (l) Other assets. (1) An FDICincluding standards relating to the loan supervised institution must assign a amount as a percent of the appraised zero percent risk weight to cash owned value of the property; and held in all offices of the FDIC- emcdonald on DSK67QTVN1PROD with RULES2 4–7 VerDate Mar<15>2010 17:14 Sep 09, 2013 150 Jkt 229001 PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 55499 supervised institution or in transit; to gold bullion held in the FDICsupervised institution’s own vaults or held in another depository institution’s vaults on an allocated basis, to the extent the gold bullion assets are offset by gold bullion liabilities; and to exposures that arise from the settlement of cash transactions (such as equities, fixed income, spot foreign exchange and spot commodities) with a central counterparty where there is no assumption of ongoing counterparty credit risk by the central counterparty after settlement of the trade and associated default fund contributions. (2) An FDIC-supervised institution must assign a 20 percent risk weight to cash items in the process of collection. (3) An FDIC-supervised institution must assign a 100 percent risk weight to DTAs arising from temporary differences that the FDIC-supervised institution could realize through net operating loss carrybacks. (4) An FDIC-supervised institution must assign a 250 percent risk weight to the portion of each of the following items that is not deducted from common equity tier 1 capital pursuant to § 324.22(d): (i) MSAs; and (ii) DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks. (5) An FDIC-supervised institution must assign a 100 percent risk weight to all assets not specifically assigned a different risk weight under this subpart and that are not deducted from tier 1 or tier 2 capital pursuant to § 324.22. (6) Notwithstanding the requirements of this section, an FDIC-supervised institution may assign an asset that is not included in one of the categories provided in this section to the risk weight category applicable under the capital rules applicable to bank holding companies and savings and loan holding companies at 12 CFR part 217, provided that all of the following conditions apply: (i) The FDIC-supervised institution is not authorized to hold the asset under applicable law other than debt previously contracted or similar authority; and (ii) The risks associated with the asset are substantially similar to the risks of assets that are otherwise assigned to a risk weight category of less than 100 percent under this subpart. § 324.33 Off-balance sheet exposures. (a) General. (1) An FDIC-supervised institution must calculate the exposure amount of an off-balance sheet exposure E:\FR\FM\10SER2.SGM 10SER2 55500 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations using the credit conversion factors (CCFs) in paragraph (b) of this section. (2) Where an FDIC-supervised institution commits to provide a commitment, the FDIC-supervised institution may apply the lower of the two applicable CCFs. (3) Where an FDIC-supervised institution provides a commitment structured as a syndication or participation, the FDIC-supervised institution is only required to calculate the exposure amount for its pro rata share of the commitment. (4) Where an FDIC-supervised institution provides a commitment, enters into a repurchase agreement, or provides a credit-enhancing representation and warranty, and such commitment, repurchase agreement, or credit-enhancing representation and warranty is not a securitization exposure, the exposure amount shall be no greater than the maximum contractual amount of the commitment, repurchase agreement, or creditenhancing representation and warranty, as applicable. (b) Credit conversion factors—(1) Zero percent CCF. An FDIC-supervised institution must apply a zero percent CCF to the unused portion of a commitment that is unconditionally cancelable by the FDIC-supervised institution. (2) 20 percent CCF. An FDICsupervised institution must apply a 20 percent CCF to the amount of: (i) Commitments with an original maturity of one year or less that are not unconditionally cancelable by the FDICsupervised institution; and (ii) Self-liquidating, trade-related contingent items that arise from the movement of goods, with an original maturity of one year or less. (3) 50 percent CCF. An FDICsupervised institution must apply a 50 percent CCF to the amount of: (i) Commitments with an original maturity of more than one year that are not unconditionally cancelable by the FDIC-supervised institution; and (ii) Transaction-related contingent items, including performance bonds, bid bonds, warranties, and performance standby letters of credit. (4) 100 percent CCF. An FDICsupervised institution must apply a 100 percent CCF to the amount of the following off-balance-sheet items and other similar transactions: (i) Guarantees; (ii) Repurchase agreements (the offbalance sheet component of which equals the sum of the current fair values of all positions the FDIC-supervised institution has sold subject to repurchase); (iii) Credit-enhancing representations and warranties that are not securitization exposures; (iv) Off-balance sheet securities lending transactions (the off-balance sheet component of which equals the sum of the current fair values of all positions the FDIC-supervised institution has lent under the transaction); (v) Off-balance sheet securities borrowing transactions (the off-balance sheet component of which equals the sum of the current fair values of all noncash positions the FDIC-supervised institution has posted as collateral under the transaction); (vi) Financial standby letters of credit; and (vii) Forward agreements. § 324.34 OTC derivative contracts. (a) Exposure amount—(1) Single OTC derivative contract. Except as modified by paragraph (b) of this section, the exposure amount for a single OTC derivative contract that is not subject to a qualifying master netting agreement is equal to the sum of the FDIC-supervised institution’s current credit exposure and potential future credit exposure (PFE) on the OTC derivative contract. (i) Current credit exposure. The current credit exposure for a single OTC derivative contract is the greater of the mark-to-fair value of the OTC derivative contract or zero. (ii) PFE. (A) The PFE for a single OTC derivative contract, including an OTC derivative contract with a negative mark-to-fair value, is calculated by multiplying the notional principal amount of the OTC derivative contract by the appropriate conversion factor in Table 1 to § 324.34. (B) For purposes of calculating either the PFE under this paragraph or the gross PFE under paragraph (a)(2) of this section for exchange rate contracts and other similar contracts in which the notional principal amount is equivalent to the cash flows, notional principal amount is the net receipts to each party falling due on each value date in each currency. (C) For an OTC derivative contract that does not fall within one of the specified categories in Table 1 to § 324.34, the PFE must be calculated using the appropriate ‘‘other’’ conversion factor. (D) An FDIC-supervised institution must use an OTC derivative contract’s effective notional principal amount (that is, the apparent or stated notional principal amount multiplied by any multiplier in the OTC derivative contract) rather than the apparent or stated notional principal amount in calculating PFE. (E) The PFE of the protection provider of a credit derivative is capped at the net present value of the amount of unpaid premiums. TABLE 1 TO § 324.34—CONVERSION FACTOR MATRIX FOR DERIVATIVE CONTRACTS 1 Remaining maturity 2 Foreign exchange rate and gold Interest rate One year or less ........................................... Greater than one year and less than or equal to five years ..................................... Greater than five years ................................. Credit (investment grade reference asset) 3 Credit (non-investment-grade reference asset) Precious metals (except gold) Equity Other 0.00 0.01 0.05 0.10 0.06 0.07 0.10 0.005 0.015 0.05 0.075 0.05 0.05 0.10 0.10 0.08 0.10 0.07 0.08 0.12 0.15 emcdonald on DSK67QTVN1PROD with RULES2 1 For a derivative contract with multiple exchanges of principal, the conversion factor is multiplied by the number of remaining payments in the derivative contract. 2 For an OTC derivative contract that is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that the fair value of the contract is zero, the remaining maturity equals the time until the next reset date. For an interest rate derivative contract with a remaining maturity of greater than one year that meets these criteria, the minimum conversion factor is 0.005. 3 An FDIC-supervised institution must use the column labeled ‘‘Credit (investment-grade reference asset)’’ for a credit derivative whose reference asset is an outstanding unsecured longterm debt security without credit enhancement that is investment grade. An FDIC-supervised institution must use the column labeled ‘‘Credit (non-investment-grade reference asset)’’ for all other credit derivatives. (2) Multiple OTC derivative contracts subject to a qualifying master netting agreement. Except as modified by paragraph (b) of this section, the exposure amount for multiple OTC VerDate Mar<15>2010 18:28 Sep 09, 2013 Jkt 229001 derivative contracts subject to a qualifying master netting agreement is equal to the sum of the net current credit exposure and the adjusted sum of the PFE amounts for all OTC derivative PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 contracts subject to the qualifying master netting agreement. (i) Net current credit exposure. The net current credit exposure is the greater of the net sum of all positive and E:\FR\FM\10SER2.SGM 10SER2 negative mark-to-fair values of the individual OTC derivative contracts subject to the qualifying master netting agreement or zero. (ii) Adjusted sum of the PFE amounts. The adjusted sum of the PFE amounts, Anet, is calculated as Anet = (0.4 × Agross) + (0.6 × NGR × Agross), where: (A) Agross equals the gross PFE (that is, the sum of the PFE amounts as determined under paragraph (a)(1)(ii) of this section for each individual derivative contract subject to the qualifying master netting agreement); and (B) Net-to-gross Ratio (NGR) equals the ratio of the net current credit exposure to the gross current credit exposure. In calculating the NGR, the gross current credit exposure equals the sum of the positive current credit exposures (as determined under paragraph (a)(1)(i) of this section) of all individual derivative contracts subject to the qualifying master netting agreement. (b) Recognition of credit risk mitigation of collateralized OTC derivative contracts. (1) An FDICsupervised institution may recognize the credit risk mitigation benefits of financial collateral that secures an OTC derivative contract or multiple OTC derivative contracts subject to a qualifying master netting agreement (netting set) by using the simple approach in § 324.37(b). (2) As an alternative to the simple approach, an FDIC-supervised institution may recognize the credit risk mitigation benefits of financial collateral that secures such a contract or netting set if the financial collateral is markedto-fair value on a daily basis and subject to a daily margin maintenance requirement by applying a risk weight to the exposure as if it were uncollateralized and adjusting the exposure amount calculated under paragraph (a)(1) or (2) of this section using the collateral haircut approach in § 324.37(c). The FDIC-supervised institution must substitute the exposure amount calculated under paragraph (a)(1) or (2) of this section for èE in the equation in § 324.37(c)(2). (c) Counterparty credit risk for OTC credit derivatives—(1) Protection purchasers. An FDIC-supervised institution that purchases an OTC credit derivative that is recognized under § 324.36 as a credit risk mitigant for an exposure that is not a covered position under subpart F is not required to compute a separate counterparty credit risk capital requirement under § 324.32 provided that the FDIC-supervised institution does so consistently for all such credit derivatives. The FDIC- VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 supervised institution must either include all or exclude all such credit derivatives that are subject to a qualifying master netting agreement from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. (2) Protection providers. (i) An FDICsupervised institution that is the protection provider under an OTC credit derivative must treat the OTC credit derivative as an exposure to the underlying reference asset. The FDICsupervised institution is not required to compute a counterparty credit risk capital requirement for the OTC credit derivative under § 324.32, provided that this treatment is applied consistently for all such OTC credit derivatives. The FDIC-supervised institution must either include all or exclude all such OTC credit derivatives that are subject to a qualifying master netting agreement from any measure used to determine counterparty credit risk exposure. (ii) The provisions of this paragraph (c)(2) apply to all relevant counterparties for risk-based capital purposes unless the FDIC-supervised institution is treating the OTC credit derivative as a covered position under subpart F, in which case the FDICsupervised institution must compute a supplemental counterparty credit risk capital requirement under this section. (d) Counterparty credit risk for OTC equity derivatives. (1) An FDICsupervised institution must treat an OTC equity derivative contract as an equity exposure and compute a riskweighted asset amount for the OTC equity derivative contract under §§ 324.51 through 324.53 (unless the FDIC-supervised institution is treating the contract as a covered position under subpart F of this part). (2) In addition, the FDIC-supervised institution must also calculate a riskbased capital requirement for the counterparty credit risk of an OTC equity derivative contract under this section if the FDIC-supervised institution is treating the contract as a covered position under subpart F of this part. (3) If the FDIC-supervised institution risk weights the contract under the Simple Risk-Weight Approach (SRWA) in § 324.52, the FDIC-supervised institution may choose not to hold riskbased capital against the counterparty credit risk of the OTC equity derivative contract, as long as it does so for all such contracts. Where the OTC equity derivative contracts are subject to a qualified master netting agreement, an FDIC-supervised institution using the SRWA must either include all or PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 55501 exclude all of the contracts from any measure used to determine counterparty credit risk exposure. (e) Clearing member FDIC-supervised institution’s exposure amount. A clearing member FDIC-supervised institution’s exposure amount for an OTC derivative contract or netting set of OTC derivative contracts where the FDIC-supervised institution is either acting as a financial intermediary and enters into an offsetting transaction with a QCCP or where the FDIC-supervised institution provides a guarantee to the QCCP on the performance of the client equals the exposure amount calculated according to paragraph (a)(1) or (2) of this section multiplied by the scaling factor 0.71. If the FDIC-supervised institution determines that a longer period is appropriate, the FDICsupervised institution must use a larger scaling factor to adjust for a longer holding period as follows: where H equals the holding period greater than five days. Additionally, the FDIC may require the FDIC-supervised institution to set a longer holding period if the FDIC determines that a longer period is appropriate due to the nature, structure, or characteristics of the transaction or is commensurate with the risks associated with the transaction. § 324.35 Cleared transactions. (a) General requirements—(1) Clearing member clients. An FDICsupervised institution that is a clearing member client must use the methodologies described in paragraph (b) of this section to calculate riskweighted assets for a cleared transaction. (2) Clearing members. An FDICsupervised institution that is a clearing member must use the methodologies described in paragraph (c) of this section to calculate its risk-weighted assets for a cleared transaction and paragraph (d) of this section to calculate its risk-weighted assets for its default fund contribution to a CCP. (b) Clearing member client FDICsupervised institutions—(1) Riskweighted assets for cleared transactions. (i) To determine the risk-weighted asset amount for a cleared transaction, an FDIC-supervised institution that is a clearing member client must multiply the trade exposure amount for the cleared transaction, calculated in accordance with paragraph (b)(2) of this section, by the risk weight appropriate for the cleared transaction, determined E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.014</GPH> emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 55502 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations in accordance with paragraph (b)(3) of this section. (ii) A clearing member client FDICsupervised institution’s total riskweighted assets for cleared transactions is the sum of the risk-weighted asset amounts for all its cleared transactions. (2) Trade exposure amount. (i) For a cleared transaction that is either a derivative contract or a netting set of derivative contracts, the trade exposure amount equals: (A) The exposure amount for the derivative contract or netting set of derivative contracts, calculated using the methodology used to calculate exposure amount for OTC derivative contracts under § 324.34, plus (B) The fair value of the collateral posted by the clearing member client FDIC-supervised institution and held by the CCP, clearing member, or custodian in a manner that is not bankruptcy remote. (ii) For a cleared transaction that is a repo-style transaction or netting set of repo-style transactions, the trade exposure amount equals: (A) The exposure amount for the repostyle transaction calculated using the methodologies under § 324.37(c), plus (B) The fair value of the collateral posted by the clearing member client FDIC-supervised institution and held by the CCP, clearing member, or custodian in a manner that is not bankruptcy remote. (3) Cleared transaction risk weights. (i) For a cleared transaction with a QCCP, a clearing member client FDICsupervised institution must apply a risk weight of: (A) 2 percent if the collateral posted by the FDIC-supervised institution to the QCCP or clearing member is subject to an arrangement that prevents any losses to the clearing member client FDIC-supervised institution due to the joint default or a concurrent insolvency, liquidation, or receivership proceeding of the clearing member and any other clearing member clients of the clearing member; and the clearing member client FDIC-supervised institution has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that in the event of a legal challenge (including one resulting from an event of default or from liquidation, insolvency, or receivership proceedings) the relevant court and administrative authorities would find the arrangements to be legal, valid, binding and enforceable under the law of the relevant jurisdictions; or (B) 4 percent if the requirements of § 324.35(b)(3)(A) are not met. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (ii) For a cleared transaction with a CCP that is not a QCCP, a clearing member client FDIC-supervised institution must apply the risk weight appropriate for the CCP according to § 324.32. (4) Collateral. (i) Notwithstanding any other requirements in this section, collateral posted by a clearing member client FDIC-supervised institution that is held by a custodian (in its capacity as custodian) in a manner that is bankruptcy remote from the CCP, the custodian, clearing member and other clearing member clients of the clearing member, is not subject to a capital requirement under this section. (ii) A clearing member client FDICsupervised institution must calculate a risk-weighted asset amount for any collateral provided to a CCP, clearing member, or custodian in connection with a cleared transaction in accordance with the requirements under § 324.32. (c) Clearing member FDIC-supervised institutions—(1) Risk-weighted assets for cleared transactions. (i) To determine the risk-weighted asset amount for a cleared transaction, a clearing member FDIC-supervised institution must multiply the trade exposure amount for the cleared transaction, calculated in accordance with paragraph (c)(2) of this section, by the risk weight appropriate for the cleared transaction, determined in accordance with paragraph (c)(3) of this section. (ii) A clearing member FDICsupervised institution’s total riskweighted assets for cleared transactions is the sum of the risk-weighted asset amounts for all of its cleared transactions. (2) Trade exposure amount. A clearing member FDIC-supervised institution must calculate its trade exposure amount for a cleared transaction as follows: (i) For a cleared transaction that is either a derivative contract or a netting set of derivative contracts, the trade exposure amount equals: (A) The exposure amount for the derivative contract, calculated using the methodology to calculate exposure amount for OTC derivative contracts under § 324.34, plus (B) The fair value of the collateral posted by the clearing member FDICsupervised institution and held by the CCP in a manner that is not bankruptcy remote. (ii) For a cleared transaction that is a repo-style transaction or netting set of repo-style transactions, trade exposure amount equals: PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 (A) The exposure amount for repostyle transactions calculated using methodologies under § 324.37(c), plus (B) The fair value of the collateral posted by the clearing member FDICsupervised institution and held by the CCP in a manner that is not bankruptcy remote. (3) Cleared transaction risk weight. (i) A clearing member FDIC-supervised institution must apply a risk weight of 2 percent to the trade exposure amount for a cleared transaction with a QCCP. (ii) For a cleared transaction with a CCP that is not a QCCP, a clearing member FDIC-supervised institution must apply the risk weight appropriate for the CCP according to § 324.32. (4) Collateral. (i) Notwithstanding any other requirement in this section, collateral posted by a clearing member FDIC-supervised institution that is held by a custodian in a manner that is bankruptcy remote from the CCP is not subject to a capital requirement under this section. (ii) A clearing member FDICsupervised institution must calculate a risk-weighted asset amount for any collateral provided to a CCP, clearing member, or a custodian in connection with a cleared transaction in accordance with requirements under § 324.32. (d) Default fund contributions—(1) General requirement. A clearing member FDIC-supervised institution must determine the risk-weighted asset amount for a default fund contribution to a CCP at least quarterly, or more frequently if, in the opinion of the FDICsupervised institution or the FDIC, there is a material change in the financial condition of the CCP. (2) Risk-weighted asset amount for default fund contributions to nonqualifying CCPs. A clearing member FDIC-supervised institution’s riskweighted asset amount for default fund contributions to CCPs that are not QCCPs equals the sum of such default fund contributions multiplied by 1,250 percent, or an amount determined by the FDIC, based on factors such as size, structure and membership characteristics of the CCP and riskiness of its transactions, in cases where such default fund contributions may be unlimited. (3) Risk-weighted asset amount for default fund contributions to QCCPs. A clearing member FDIC-supervised institution’s risk-weighted asset amount for default fund contributions to QCCPs equals the sum of its capital requirement, KCM for each QCCP, as calculated under the methodology set forth in paragraphs (d)(3)(i) through (iii) of this section (Method 1), multiplied by E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55503 (i) Method 1. The hypothetical capital requirement of a QCCP (KCCP) equals: Where (A) EBRMi equals the exposure amount for each transaction cleared through the QCCP by clearing member i, calculated in accordance with § 324.34 for OTC derivative contracts and § 324.37(c)(2) for repo-style transactions, provided that: (1) For purposes of this section, in calculating the exposure amount the FDIC-supervised institution may replace the formula provided in § 324.34(a)(2)(ii) with the following: Anet = (0.15 × Agross) + (0.85 × NGR × Agross); and (2) For option derivative contracts that are cleared transactions, the PFE described in § 324.34(a)(1)(ii) must be adjusted by multiplying the notional principal amount of the derivative contract by the appropriate conversion factor in Table 1 to § 324.34 and the absolute value of the option’s delta, that is, the ratio of the change in the value of the derivative contract to the corresponding change in the price of the underlying asset. (3) For repo-style transactions, when applying § 324.37(c)(2), the FDICsupervised institution must use the methodology in § 324.37(c)(3); (B) VMi equals any collateral posted by clearing member i to the QCCP that it is entitled to receive from the QCCP, but has not yet received, and any collateral that the QCCP has actually received from clearing member i; (C) IMi equals the collateral posted as initial margin by clearing member i to the QCCP; (D) DFi equals the funded portion of clearing member i’s default fund contribution that will be applied to reduce the QCCP’s loss upon a default by clearing member i; (E) RW equals 20 percent, except when the FDIC has determined that a higher risk weight is more appropriate based on the specific characteristics of the QCCP and its clearing members; and (F) Where a QCCP has provided its KCCP, an FDIC-supervised institution must rely on such disclosed figure instead of calculating KCCP under this paragraph, unless the FDIC-supervised institution determines that a more conservative figure is appropriate based on the nature, structure, or characteristics of the QCCP. Subscripts 1 and 2 denote the clearing members with the two largest ANet values. For purposes of this paragraph, for derivatives ANet is defined in § 324.34(a)(2)(ii) and for repo-style transactions, ANet means the exposure amount as defined in § 324.37(c)(2) using the methodology in § 324.37(c)(3); (B) N equals the number of clearing members in the QCCP; (C) DFCCP equals the QCCP’s own funds and other financial resources that would be used to cover its losses before clearing members’ default fund contributions are used to cover losses; (D) DFCM equals funded default fund contributions from all clearing members and any other clearing member contributed financial resources that are available to absorb mutualized QCCP losses; (E) DF = DFCCP + DFCM (that is, the total funded default fund contribution); ER10SE13.016</GPH> (ii) For an FDIC-supervised institution that is a clearing member of a QCCP with a default fund supported by funded commitments, KCM equals: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.015</GPH> emcdonald on DSK67QTVN1PROD with RULES2 1,250 percent or in paragraph (d)(3)(iv) of this section (Method 2). Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (B) For an FDIC-supervised institution that is a clearing member of a QCCP with a default fund supported by VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 unfunded commitments and is unable to calculate KCM using the methodology described in paragraph (d)(3)(iii) of this section, KCM equals: Where (1) IMi = the FDIC-supervised institution’s initial margin posted to the QCCP; PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 (2) IMCM equals the total of initial margin posted to the QCCP; and (3) K*CM as defined in paragraph (d)(3)(ii) of this section. (iv) Method 2. A clearing member FDIC-supervised institution’s riskweighted asset amount for its default fund contribution to a QCCP, RWADF, equals: RWADF = Min {12.5 * DF; 0.18 * TE} Where E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.018</GPH> Where (1) DFi equals the FDIC-supervised institution’s unfunded commitment to the default fund; (2) DFCM equals the total of all clearing members’ unfunded commitment to the default fund; and (3) K*CM as defined in paragraph (d)(3)(ii) of this section. ER10SE13.017</GPH> emcdonald on DSK67QTVN1PROD with RULES2 55504 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (A) TE equals the FDIC-supervised institution’s trade exposure amount to the QCCP, calculated according to § 324.35(c)(2); (B) DF equals the funded portion of the FDICsupervised institution’s default fund contribution to the QCCP. (4) Total risk-weighted assets for default fund contributions. Total riskweighted assets for default fund contributions is the sum of a clearing member FDIC-supervised institution’s risk-weighted assets for all of its default fund contributions to all CCPs of which the FDIC-supervised institution is a clearing member. emcdonald on DSK67QTVN1PROD with RULES2 § 324.36 Guarantees and credit derivatives: Substitution treatment. (a) Scope. (1) General. An FDICsupervised institution may recognize the credit risk mitigation benefits of an eligible guarantee or eligible credit derivative by substituting the risk weight associated with the protection provider for the risk weight assigned to an exposure, as provided under this section. (2) This section applies to exposures for which: (i) Credit risk is fully covered by an eligible guarantee or eligible credit derivative; or (ii) Credit risk is covered on a pro rata basis (that is, on a basis in which the FDIC-supervised institution and the protection provider share losses proportionately) by an eligible guarantee or eligible credit derivative. (3) Exposures on which there is a tranching of credit risk (reflecting at least two different levels of seniority) generally are securitization exposures subject to §§ 324.41 through 324.45. (4) If multiple eligible guarantees or eligible credit derivatives cover a single exposure described in this section, an FDIC-supervised institution may treat the hedged exposure as multiple separate exposures each covered by a single eligible guarantee or eligible credit derivative and may calculate a separate risk-weighted asset amount for each separate exposure as described in paragraph (c) of this section. (5) If a single eligible guarantee or eligible credit derivative covers multiple hedged exposures described in paragraph (a)(2) of this section, an FDICsupervised institution must treat each hedged exposure as covered by a separate eligible guarantee or eligible credit derivative and must calculate a separate risk-weighted asset amount for each exposure as described in paragraph (c) of this section. (b) Rules of recognition. (1) An FDICsupervised institution may only recognize the credit risk mitigation VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 benefits of eligible guarantees and eligible credit derivatives. (2) An FDIC-supervised institution may only recognize the credit risk mitigation benefits of an eligible credit derivative to hedge an exposure that is different from the credit derivative’s reference exposure used for determining the derivative’s cash settlement value, deliverable obligation, or occurrence of a credit event if: (i) The reference exposure ranks pari passu with, or is subordinated to, the hedged exposure; and (ii) The reference exposure and the hedged exposure are to the same legal entity, and legally enforceable crossdefault or cross-acceleration clauses are in place to ensure payments under the credit derivative are triggered when the obligated party of the hedged exposure fails to pay under the terms of the hedged exposure. (c) Substitution approach—(1) Full coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs (a) and (b) of this section and the protection amount (P) of the guarantee or credit derivative is greater than or equal to the exposure amount of the hedged exposure, an FDIC-supervised institution may recognize the guarantee or credit derivative in determining the riskweighted asset amount for the hedged exposure by substituting the risk weight applicable to the guarantor or credit derivative protection provider under § 324.32 for the risk weight assigned to the exposure. (2) Partial coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs(a) and (b) of this section and the protection amount (P) of the guarantee or credit derivative is less than the exposure amount of the hedged exposure, the FDIC-supervised institution must treat the hedged exposure as two separate exposures (protected and unprotected) in order to recognize the credit risk mitigation benefit of the guarantee or credit derivative. (i) The FDIC-supervised institution may calculate the risk-weighted asset amount for the protected exposure under § 324.32, where the applicable risk weight is the risk weight applicable to the guarantor or credit derivative protection provider. (ii) The FDIC-supervised institution must calculate the risk-weighted asset amount for the unprotected exposure under § 324.32, where the applicable risk weight is that of the unprotected portion of the hedged exposure. (iii) The treatment provided in this section is applicable when the credit risk of an exposure is covered on a PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 55505 partial pro rata basis and may be applicable when an adjustment is made to the effective notional amount of the guarantee or credit derivative under paragraphs (d), (e), or (f) of this section. (d) Maturity mismatch adjustment. (1) An FDIC-supervised institution that recognizes an eligible guarantee or eligible credit derivative in determining the risk-weighted asset amount for a hedged exposure must adjust the effective notional amount of the credit risk mitigant to reflect any maturity mismatch between the hedged exposure and the credit risk mitigant. (2) A maturity mismatch occurs when the residual maturity of a credit risk mitigant is less than that of the hedged exposure(s). (3) The residual maturity of a hedged exposure is the longest possible remaining time before the obligated party of the hedged exposure is scheduled to fulfil its obligation on the hedged exposure. If a credit risk mitigant has embedded options that may reduce its term, the FDICsupervised institution (protection purchaser) must use the shortest possible residual maturity for the credit risk mitigant. If a call is at the discretion of the protection provider, the residual maturity of the credit risk mitigant is at the first call date. If the call is at the discretion of the FDIC-supervised institution (protection purchaser), but the terms of the arrangement at origination of the credit risk mitigant contain a positive incentive for the FDIC-supervised institution to call the transaction before contractual maturity, the remaining time to the first call date is the residual maturity of the credit risk mitigant. (4) A credit risk mitigant with a maturity mismatch may be recognized only if its original maturity is greater than or equal to one year and its residual maturity is greater than three months. (5) When a maturity mismatch exists, the FDIC-supervised institution must apply the following adjustment to reduce the effective notional amount of the credit risk mitigant: Pm = E × (t0.25)/(T-0.25), where: (i) Pm equals effective notional amount of the credit risk mitigant, adjusted for maturity mismatch; (ii) E equals effective notional amount of the credit risk mitigant; (iii) t equals the lesser of T or the residual maturity of the credit risk mitigant, expressed in years; and (iv) T equals the lesser of five or the residual maturity of the hedged exposure, expressed in years. (e) Adjustment for credit derivatives without restructuring as a credit event. E:\FR\FM\10SER2.SGM 10SER2 55506 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations credit risk mitigant and the hedged exposure. (2) An FDIC-supervised institution must set HFX equal to eight percent unless it qualifies for the use of and uses its own internal estimates of foreign exchange volatility based on a tenbusiness-day holding period. An FDICsupervised institution qualifies for the use of its own internal estimates of foreign exchange volatility if it qualifies for the use of its own-estimates haircuts in § 324.37(c)(4). (3) An FDIC-supervised institution must adjust HFX calculated in paragraph (f)(2) of this section upward if the FDICsupervised institution revalues the guarantee or credit derivative less frequently than once every 10 business days using the following square root of time formula: risk weight to the portion of an exposure that is secured by the fair value of financial collateral (that meets the requirements of paragraph (b)(1) of this section) based on the risk weight assigned to the collateral under § 324.32. For repurchase agreements, reverse repurchase agreements, and securities lending and borrowing transactions, the collateral is the instruments, gold, and cash the FDICsupervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the transaction. Except as provided in paragraph (b)(3) of this section, the risk weight assigned to the collateralized portion of the exposure may not be less than 20 percent. (ii) An FDIC-supervised institution must apply a risk weight to the unsecured portion of the exposure based on the risk weight applicable to the exposure under this subpart. (3) Exceptions to the 20 percent riskweight floor and other requirements. Notwithstanding paragraph (b)(2)(i) of this section: (i) An FDIC-supervised institution may assign a zero percent risk weight to an exposure to an OTC derivative contract that is marked-to-market on a daily basis and subject to a daily margin maintenance requirement, to the extent the contract is collateralized by cash on deposit. (ii) An FDIC-supervised institution may assign a 10 percent risk weight to an exposure to an OTC derivative contract that is marked-to-market daily and subject to a daily margin maintenance requirement, to the extent that the contract is collateralized by an exposure to a sovereign that qualifies for a zero percent risk weight under § 324.32. (iii) An FDIC-supervised institution may assign a zero percent risk weight to the collateralized portion of an exposure where: (A) The financial collateral is cash on deposit; or (B) The financial collateral is an exposure to a sovereign that qualifies for a zero percent risk weight under § 324.32, and the FDIC-supervised institution has discounted the fair value of the collateral by 20 percent. (c) Collateral haircut approach—(1) General. An FDIC-supervised institution may recognize the credit risk mitigation benefits of financial collateral that secures an eligible margin loan, repostyle transaction, collateralized derivative contract, or single-product netting set of such transactions, and of any collateral that secures a repo-style transaction that is included in the FDICsupervised institution’s VaR-based measure under subpart F of this part by using the collateral haircut approach in this section. An FDIC-supervised Collateralized transactions. (a) General. (1) To recognize the riskmitigating effects of financial collateral, an FDIC-supervised institution may use: (i) The simple approach in paragraph (b) of this section for any exposure; or (ii) The collateral haircut approach in paragraph (c) of this section for repostyle transactions, eligible margin loans, collateralized derivative contracts, and single-product netting sets of such transactions. (2) An FDIC-supervised institution may use any approach described in this section that is valid for a particular type of exposure or transaction; however, it must use the same approach for similar exposures or transactions. (b) The simple approach. (1) General requirements. (i) An FDIC-supervised institution may recognize the credit risk mitigation benefits of financial collateral that secures any exposure. (ii) To qualify for the simple approach, the financial collateral must meet the following requirements: (A) The collateral must be subject to a collateral agreement for at least the life of the exposure; (B) The collateral must be revalued at least every six months; and (C) The collateral (other than gold) and the exposure must be denominated in the same currency. (2) Risk weight substitution. (i) An FDIC-supervised institution may apply a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.019</GPH> (f) Currency mismatch adjustment. (1) If an FDIC-supervised institution recognizes an eligible guarantee or eligible credit derivative that is denominated in a currency different from that in which the hedged exposure is denominated, the FDIC-supervised institution must apply the following formula to the effective notional amount of the guarantee or credit derivative: Pc = Pr × (1–HFX), where: (i) Pc equals effective notional amount of the credit risk mitigant, adjusted for currency mismatch (and maturity mismatch and lack of restructuring event, if applicable); (ii) Pr equals effective notional amount of the credit risk mitigant (adjusted for maturity mismatch and lack of restructuring event, if applicable); and (iii) HFX equals haircut appropriate for the currency mismatch between the § 324.37 emcdonald on DSK67QTVN1PROD with RULES2 If an FDIC-supervised institution recognizes an eligible credit derivative that does not include as a credit event a restructuring of the hedged exposure involving forgiveness or postponement of principal, interest, or fees that results in a credit loss event (that is, a chargeoff, specific provision, or other similar debit to the profit and loss account), the FDIC-supervised institution must apply the following adjustment to reduce the effective notional amount of the credit derivative: Pr = Pm × 0.60, where: (1) Pr equals effective notional amount of the credit risk mitigant, adjusted for lack of restructuring event (and maturity mismatch, if applicable); and (2) Pm equals effective notional amount of the credit risk mitigant (adjusted for maturity mismatch, if applicable). Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations institution may use the standard supervisory haircuts in paragraph (c)(3) of this section or, with prior written approval of the FDIC, its own estimates of haircuts according to paragraph (c)(4) of this section. (2) Exposure amount equation. An FDIC-supervised institution must determine the exposure amount for an eligible margin loan, repo-style transaction, collateralized derivative contract, or a single-product netting set of such transactions by setting the exposure amount equal to max {0, [(èE ¥ èC) + è(Es × Hs) + è(Efx × Hfx)]}, where: (i)(A) For eligible margin loans and repo-style transactions and netting sets thereof, èE equals the value of the exposure (the sum of the current fair values of all instruments, gold, and cash the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty under the transaction (or netting set)); and (B) For collateralized derivative contracts and netting sets thereof, èE equals the exposure amount of the OTC derivative contract (or netting set) calculated under § 324.34 (a)(1) or (2). (ii) èC equals the value of the collateral (the sum of the current fair values of all instruments, gold and cash the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the transaction (or netting set)); (iii) Es equals the absolute value of the net position in a given instrument or in gold (where the net position in the instrument or gold equals the sum of the current fair values of the instrument or gold the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current fair values of that same instrument or gold the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty); (iv) Hs equals the market price volatility haircut appropriate to the instrument or gold referenced in Es; 55507 (v) Efx equals the absolute value of the net position of instruments and cash in a currency that is different from the settlement currency (where the net position in a given currency equals the sum of the current fair values of any instruments or cash in the currency the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current fair values of any instruments or cash in the currency the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty); and (vi) Hfx equals the haircut appropriate to the mismatch between the currency referenced in Efx and the settlement currency. (3) Standard supervisory haircuts. (i) An FDIC-supervised institution must use the haircuts for market price volatility (Hs) provided in Table 1 to § 324.37, as adjusted in certain circumstances in accordance with the requirements of paragraphs (c)(3)(iii) and (iv) of this section. TABLE 1 TO § 324.37—STANDARD SUPERVISORY MARKET PRICE VOLATILITY HAIRCUTS1 Haircut (in percent) assigned based on: Sovereign issuers risk weight under § 324.32 (in percent) 2 Residual maturity Zero Less than or equal to 1 year ..................... Greater than 1 year and less than or equal to 5 years ..................................... Greater than 5 years .................................. 20 or 50 Non-sovereign issuers risk weight under § 324.32 (in percent) 100 Investment grade securitization exposures (in percent) 20 0.5 1.0 15.0 1.0 2.0 4.0 4.0 2.0 4.0 3.0 6.0 15.0 15.0 4.0 8.0 6.0 12.0 8.0 16.0 12.0 24.0 Main index equities (including convertible bonds) and gold ....................................... 15.0 Other publicly traded equities (including convertible bonds) ....................................... 25.0 Mutual funds ................................................................................................................ Highest haircut applicable to any security in which the fund can invest. Cash collateral held ..................................................................................................... Zero Other exposure types .................................................................................................. 25.0 1 The market price volatility haircuts in Table 1 to § 324.37 are based on a 10 business-day holding period. a foreign PSE that receives a zero percent risk weight. emcdonald on DSK67QTVN1PROD with RULES2 2 Includes (ii) For currency mismatches, an FDIC-supervised institution must use a haircut for foreign exchange rate volatility (Hfx) of 8.0 percent, as adjusted in certain circumstances under paragraphs (c)(3)(iii) and (iv) of this section. (iii) For repo-style transactions, an FDIC-supervised institution may multiply the standard supervisory haircuts provided in paragraphs (c)(3)(i) and (ii) of this section by the square root of 1⁄2 (which equals 0.707107). VerDate Mar<15>2010 18:28 Sep 09, 2013 Jkt 229001 (iv) If the number of trades in a netting set exceeds 5,000 at any time during a quarter, an FDIC-supervised institution must adjust the supervisory haircuts provided in paragraphs (c)(3)(i) and (ii) of this section upward on the basis of a holding period of twenty business days for the following quarter except in the calculation of the exposure amount for purposes of § 324.35. If a netting set contains one or more trades involving illiquid collateral or an OTC derivative that cannot be easily PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 replaced, an FDIC-supervised institution must adjust the supervisory haircuts upward on the basis of a holding period of twenty business days. If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the holding period, then the FDIC-supervised institution must adjust the supervisory haircuts upward for that netting set on the basis of a holding period that is at least two times the minimum holding period for that netting set. An FDIC- E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (A) TM equals a holding period of longer than 10 business days for eligible margin loans and derivative contracts or longer than 5 business days for repo-style transactions; (B) HS equals the standard supervisory haircut; and (C) TS equals 10 business days for eligible margin loans and derivative contracts or 5 business days for repo-style transactions. emcdonald on DSK67QTVN1PROD with RULES2 (v) If the instrument an FDICsupervised institution has lent, sold subject to repurchase, or posted as collateral does not meet the definition of financial collateral, the FDIC-supervised institution must use a 25.0 percent haircut for market price volatility (Hs). (4) Own internal estimates for haircuts. With the prior written approval of the FDIC, an FDICsupervised institution may calculate haircuts (Hs and Hfx) using its own internal estimates of the volatilities of market prices and foreign exchange rates: (i) To receive FDIC approval to use its own internal estimates, an FDICsupervised institution must satisfy the following minimum standards: (A) An FDIC-supervised institution must use a 99th percentile one-tailed confidence interval; (B) The minimum holding period for a repo-style transaction is five business days and for an eligible margin loan is ten business days except for transactions or netting sets for which paragraph (c)(4)(i)(C) of this section applies. When an FDIC-supervised institution calculates an own-estimates haircut on a TN-day holding period, which is different from the minimum holding period for the transaction type, the applicable haircut (HM) is calculated using the following square root of time formula: (1) TM equals 5 for repo-style transactions and 10 for eligible margin loans; (2) TN equals the holding period used by the FDIC-supervised institution to derive HN; and (3) HN equals the haircut based on the holding period TN. (C) If the number of trades in a netting set exceeds 5,000 at any time during a quarter, an FDIC-supervised institution must calculate the haircut using a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 minimum holding period of twenty business days for the following quarter except in the calculation of the exposure amount for purposes of § 324.35. If a netting set contains one or more trades involving illiquid collateral or an OTC derivative that cannot be easily replaced, an FDIC-supervised institution must calculate the haircut using a minimum holding period of twenty business days. If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the holding period, then the FDIC-supervised institution must calculate the haircut for transactions in that netting set on the basis of a holding period that is at least two times the minimum holding period for that netting set. (D) An FDIC-supervised institution is required to calculate its own internal estimates with inputs calibrated to historical data from a continuous 12month period that reflects a period of significant financial stress appropriate to the security or category of securities. (E) An FDIC-supervised institution must have policies and procedures that describe how it determines the period of significant financial stress used to calculate the FDIC-supervised institution’s own internal estimates for haircuts under this section and must be able to provide empirical support for the period used. The FDIC-supervised institution must obtain the prior approval of the FDIC for, and notify the FDIC if the FDIC-supervised institution makes any material changes to, these policies and procedures. (F) Nothing in this section prevents the FDIC from requiring an FDICsupervised institution to use a different period of significant financial stress in the calculation of own internal estimates for haircuts. (G) An FDIC-supervised institution must update its data sets and calculate haircuts no less frequently than quarterly and must also reassess data sets and haircuts whenever market prices change materially. (ii) With respect to debt securities that are investment grade, an FDICsupervised institution may calculate haircuts for categories of securities. For a category of securities, the FDICsupervised institution must calculate the haircut on the basis of internal volatility estimates for securities in that category that are representative of the securities in that category that the FDICsupervised institution has lent, sold subject to repurchase, posted as collateral, borrowed, purchased subject to resale, or taken as collateral. In determining relevant categories, the PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 FDIC-supervised institution must at a minimum take into account: (A) The type of issuer of the security; (B) The credit quality of the security; (C) The maturity of the security; and (D) The interest rate sensitivity of the security. (iii) With respect to debt securities that are not investment grade and equity securities, an FDIC-supervised institution must calculate a separate haircut for each individual security. (iv) Where an exposure or collateral (whether in the form of cash or securities) is denominated in a currency that differs from the settlement currency, the FDIC-supervised institution must calculate a separate currency mismatch haircut for its net position in each mismatched currency based on estimated volatilities of foreign exchange rates between the mismatched currency and the settlement currency. (v) An FDIC-supervised institution’s own estimates of market price and foreign exchange rate volatilities may not take into account the correlations among securities and foreign exchange rates on either the exposure or collateral side of a transaction (or netting set) or the correlations among securities and foreign exchange rates between the exposure and collateral sides of the transaction (or netting set). Risk-Weighted Assets for Unsettled Transactions § 324.38 Unsettled transactions. (a) Definitions. For purposes of this section: (1) Delivery-versus-payment (DvP) transaction means a securities or commodities transaction in which the buyer is obligated to make payment only if the seller has made delivery of the securities or commodities and the seller is obligated to deliver the securities or commodities only if the buyer has made payment. (2) Payment-versus-payment (PvP) transaction means a foreign exchange transaction in which each counterparty is obligated to make a final transfer of one or more currencies only if the other counterparty has made a final transfer of one or more currencies. (3) A transaction has a normal settlement period if the contractual settlement period for the transaction is equal to or less than the market standard for the instrument underlying the transaction and equal to or less than five business days. (4) Positive current exposure of an FDIC-supervised institution for a transaction is the difference between the transaction value at the agreed settlement price and the current market E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.021</GPH> supervised institution must adjust the standard supervisory haircuts upward using the following formula: ER10SE13.020</GPH> 55508 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations price of the transaction, if the difference results in a credit exposure of the FDICsupervised institution to the counterparty. (b) Scope. This section applies to all transactions involving securities, foreign exchange instruments, and commodities that have a risk of delayed settlement or delivery. This section does not apply to: (1) Cleared transactions that are marked-to-market daily and subject to daily receipt and payment of variation margin; (2) Repo-style transactions, including unsettled repo-style transactions; (3) One-way cash payments on OTC derivative contracts; or (4) Transactions with a contractual settlement period that is longer than the normal settlement period (which are treated as OTC derivative contracts as provided in § 324.34). (c) System-wide failures. In the case of a system-wide failure of a settlement, clearing system or central counterparty, the FDIC may waive risk-based capital requirements for unsettled and failed transactions until the situation is rectified. (d) Delivery-versus-payment (DvP) and payment-versus-payment (PvP) transactions. An FDIC-supervised institution must hold risk-based capital against any DvP or PvP transaction with a normal settlement period if the FDICsupervised institution’s counterparty has not made delivery or payment within five business days after the settlement date. The FDIC-supervised institution must determine its riskweighted asset amount for such a transaction by multiplying the positive current exposure of the transaction for the FDIC-supervised institution by the appropriate risk weight in Table 1 to § 324.38. TABLE 1 TO § 324.38—RISK WEIGHTS FOR UNSETTLED DVP AND PVP TRANSACTIONS Number of business days after contractual settlement date emcdonald on DSK67QTVN1PROD with RULES2 From From From 46 or 5 to 15 ......................... 16 to 30 ....................... 31 to 45 ....................... more ............................ Risk weight to be applied to positive current exposure (in percent) 100.0 625.0 937.5 1,250.0 (e) Non-DvP/non-PvP (non-deliveryversus-payment/non-payment-versuspayment) transactions. (1) An FDICsupervised institution must hold riskbased capital against any non-DvP/nonPvP transaction with a normal settlement period if the FDIC-supervised institution has delivered cash, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 securities, commodities, or currencies to its counterparty but has not received its corresponding deliverables by the end of the same business day. The FDICsupervised institution must continue to hold risk-based capital against the transaction until the FDIC-supervised institution has received its corresponding deliverables. (2) From the business day after the FDIC-supervised institution has made its delivery until five business days after the counterparty delivery is due, the FDIC-supervised institution must calculate the risk-weighted asset amount for the transaction by treating the current fair value of the deliverables owed to the FDIC-supervised institution as an exposure to the counterparty and using the applicable counterparty risk weight under § 324.32. (3) If the FDIC-supervised institution has not received its deliverables by the fifth business day after counterparty delivery was due, the FDIC-supervised institution must assign a 1,250 percent risk weight to the current fair value of the deliverables owed to the FDICsupervised institution. (f) Total risk-weighted assets for unsettled transactions. Total riskweighted assets for unsettled transactions is the sum of the riskweighted asset amounts of all DvP, PvP, and non-DvP/non-PvP transactions. §§ 324.39 through 324.40 [Reserved] Risk-Weighted Assets for Securitization Exposures § 324.41 Operational requirements for securitization exposures. (a) Operational criteria for traditional securitizations. An FDIC-supervised institution that transfers exposures it has originated or purchased to a securitization SPE or other third party in connection with a traditional securitization may exclude the exposures from the calculation of its risk-weighted assets only if each condition in this section is satisfied. An FDIC-supervised institution that meets these conditions must hold risk-based capital against any credit risk it retains in connection with the securitization. An FDIC-supervised institution that fails to meet these conditions must hold risk-based capital against the transferred exposures as if they had not been securitized and must deduct from common equity tier 1 capital any aftertax gain-on-sale resulting from the transaction. The conditions are: (1) The exposures are not reported on the FDIC-supervised institution’s consolidated balance sheet under GAAP; PO 00000 Frm 00171 Fmt 4701 Sfmt 4700 55509 (2) The FDIC-supervised institution has transferred to one or more third parties credit risk associated with the underlying exposures; (3) Any clean-up calls relating to the securitization are eligible clean-up calls; and (4) The securitization does not: (i) Include one or more underlying exposures in which the borrower is permitted to vary the drawn amount within an agreed limit under a line of credit; and (ii) Contain an early amortization provision. (b) Operational criteria for synthetic securitizations. For synthetic securitizations, an FDIC-supervised institution may recognize for risk-based capital purposes the use of a credit risk mitigant to hedge underlying exposures only if each condition in this paragraph is satisfied. An FDIC-supervised institution that meets these conditions must hold risk-based capital against any credit risk of the exposures it retains in connection with the synthetic securitization. An FDIC-supervised institution that fails to meet these conditions or chooses not to recognize the credit risk mitigant for purposes of this section must instead hold riskbased capital against the underlying exposures as if they had not been synthetically securitized. The conditions are: (1) The credit risk mitigant is: (i) Financial collateral; (ii) A guarantee that meets all criteria as set forth in the definition of ‘‘eligible guarantee’’ in § 324.2, except for the criteria in paragraph (3) of that definition; or (iii) A credit derivative that meets all criteria as set forth in the definition of ‘‘eligible credit derivative’’ in § 324.2, except for the criteria in paragraph (3) of the definition of ‘‘eligible guarantee’’ in § 324.2. (2) The FDIC-supervised institution transfers credit risk associated with the underlying exposures to one or more third parties, and the terms and conditions in the credit risk mitigants employed do not include provisions that: (i) Allow for the termination of the credit protection due to deterioration in the credit quality of the underlying exposures; (ii) Require the FDIC-supervised institution to alter or replace the underlying exposures to improve the credit quality of the underlying exposures; (iii) Increase the FDIC-supervised institution’s cost of credit protection in response to deterioration in the credit quality of the underlying exposures; E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55510 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (iv) Increase the yield payable to parties other than the FDIC-supervised institution in response to a deterioration in the credit quality of the underlying exposures; or (v) Provide for increases in a retained first loss position or credit enhancement provided by the FDIC-supervised institution after the inception of the securitization; (3) The FDIC-supervised institution obtains a well-reasoned opinion from legal counsel that confirms the enforceability of the credit risk mitigant in all relevant jurisdictions; and (4) Any clean-up calls relating to the securitization are eligible clean-up calls. (c) Due diligence requirements for securitization exposures. (1) Except for exposures that are deducted from common equity tier 1 capital and exposures subject to § 324.42(h), if an FDIC-supervised institution is unable to demonstrate to the satisfaction of the FDIC a comprehensive understanding of the features of a securitization exposure that would materially affect the performance of the exposure, the FDICsupervised institution must assign the securitization exposure a risk weight of 1,250 percent. The FDIC-supervised institution’s analysis must be commensurate with the complexity of the securitization exposure and the materiality of the exposure in relation to its capital. (2) An FDIC-supervised institution must demonstrate its comprehensive understanding of a securitization exposure under paragraph (c)(1) of this section, for each securitization exposure by: (i) Conducting an analysis of the risk characteristics of a securitization exposure prior to acquiring the exposure, and documenting such analysis within three business days after acquiring the exposure, considering: (A) Structural features of the securitization that would materially impact the performance of the exposure, for example, the contractual cash flow waterfall, waterfall-related triggers, credit enhancements, liquidity enhancements, fair value triggers, the performance of organizations that service the exposure, and deal-specific definitions of default; (B) Relevant information regarding the performance of the underlying credit exposure(s), for example, the percentage of loans 30, 60, and 90 days past due; default rates; prepayment rates; loans in foreclosure; property types; occupancy; average credit score or other measures of creditworthiness; average LTV ratio; and industry and geographic diversification data on the underlying exposure(s); VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (C) Relevant market data of the securitization, for example, bid-ask spread, most recent sales price and historic price volatility, trading volume, implied market rating, and size, depth and concentration level of the market for the securitization; and (D) For resecuritization exposures, performance information on the underlying securitization exposures, for example, the issuer name and credit quality, and the characteristics and performance of the exposures underlying the securitization exposures; and (ii) On an on-going basis (no less frequently than quarterly), evaluating, reviewing, and updating as appropriate the analysis required under paragraph (c)(1) of this section for each securitization exposure. § 324.42 Risk-weighted assets for securitization exposures. (a) Securitization risk weight approaches. Except as provided elsewhere in this section or in § 324.41: (1) An FDIC-supervised institution must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from a securitization and apply a 1,250 percent risk weight to the portion of a CEIO that does not constitute after-tax gain-on-sale. (2) If a securitization exposure does not require deduction under paragraph (a)(1) of this section, an FDICsupervised institution may assign a risk weight to the securitization exposure using the simplified supervisory formula approach (SSFA) in accordance with §§ 324.43(a) through 324.43(d) and subject to the limitation under paragraph (e) of this section. Alternatively, an FDIC-supervised institution that is not subject to subpart F of this part may assign a risk weight to the securitization exposure using the gross-up approach in accordance with § 324.43(e), provided, however, that such FDIC-supervised institution must apply either the SSFA or the gross-up approach consistently across all of its securitization exposures, except as provided in paragraphs (a)(1), (a)(3), and (a)(4) of this section. (3) If a securitization exposure does not require deduction under paragraph (a)(1) of this section and the FDICsupervised institution cannot, or chooses not to apply the SSFA or the gross-up approach to the exposure, the FDIC-supervised institution must assign a risk weight to the exposure as described in § 324.44. (4) If a securitization exposure is a derivative contract (other than protection provided by an FDICsupervised institution in the form of a PO 00000 Frm 00172 Fmt 4701 Sfmt 4700 credit derivative) that has a first priority claim on the cash flows from the underlying exposures (notwithstanding amounts due under interest rate or currency derivative contracts, fees due, or other similar payments), an FDICsupervised institution may choose to set the risk-weighted asset amount of the exposure equal to the amount of the exposure as determined in paragraph (c) of this section. (b) Total risk-weighted assets for securitization exposures. An FDICsupervised institution’s total riskweighted assets for securitization exposures equals the sum of the riskweighted asset amount for securitization exposures that the FDIC-supervised institution risk weights under §§ 324.41(c), 324.42(a)(1), and 324.43, 324.44, or 324.45, and paragraphs (e) through (j) of this section, as applicable. (c) Exposure amount of a securitization exposure—(1) On-balance sheet securitization exposures. The exposure amount of an on-balance sheet securitization exposure (excluding an available-for-sale or held-to-maturity security where the FDIC-supervised institution has made an AOCI opt-out election under § 324.22(b)(2), a repostyle transaction, eligible margin loan, OTC derivative contract, or cleared transaction) is equal to the carrying value of the exposure. (2) On-balance sheet securitization exposures held by an FDIC-supervised institution that has made an AOCI optout election. The exposure amount of an on-balance sheet securitization exposure that is an available-for-sale or held-tomaturity security held by an FDICsupervised institution that has made an AOCI opt-out election under § 324.22(b)(2) is the FDIC-supervised institution’s carrying value (including net accrued but unpaid interest and fees), less any net unrealized gains on the exposure and plus any net unrealized losses on the exposure. (3) Off-balance sheet securitization exposures. (i) Except as provided in paragraph (j) of this section, the exposure amount of an off-balance sheet securitization exposure that is not a repo-style transaction, eligible margin loan, cleared transaction (other than a credit derivative), or an OTC derivative contract (other than a credit derivative) is the notional amount of the exposure. For an off-balance sheet securitization exposure to an ABCP program, such as an eligible ABCP liquidity facility, the notional amount may be reduced to the maximum potential amount that the FDIC-supervised institution could be required to fund given the ABCP program’s current underlying assets E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (calculated without regard to the current credit quality of those assets). (ii) An FDIC-supervised institution must determine the exposure amount of an eligible ABCP liquidity facility for which the SSFA does not apply by multiplying the notional amount of the exposure by a CCF of 50 percent. (iii) An FDIC-supervised institution must determine the exposure amount of an eligible ABCP liquidity facility for which the SSFA applies by multiplying the notional amount of the exposure by a CCF of 100 percent. (4) Repo-style transactions, eligible margin loans, and derivative contracts. The exposure amount of a securitization exposure that is a repo-style transaction, eligible margin loan, or derivative contract (other than a credit derivative) is the exposure amount of the transaction as calculated under § 324.34 or § 324.37, as applicable. (d) Overlapping exposures. If an FDIC-supervised institution has multiple securitization exposures that provide duplicative coverage to the underlying exposures of a securitization (such as when an FDIC-supervised institution provides a program-wide credit enhancement and multiple poolspecific liquidity facilities to an ABCP program), the FDIC-supervised institution is not required to hold duplicative risk-based capital against the overlapping position. Instead, the FDIC-supervised institution may apply to the overlapping position the applicable risk-based capital treatment that results in the highest risk-based capital requirement. (e) Implicit support. If an FDICsupervised institution provides support to a securitization in excess of the FDICsupervised institution’s contractual obligation to provide credit support to the securitization (implicit support): (1) The FDIC-supervised institution must include in risk-weighted assets all of the underlying exposures associated with the securitization as if the exposures had not been securitized and must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from the securitization; and (2) The FDIC-supervised institution must disclose publicly: (i) That it has provided implicit support to the securitization; and (ii) The risk-based capital impact to the FDIC-supervised institution of providing such implicit support. (f) Undrawn portion of a servicer cash advance facility. (1) Notwithstanding any other provision of this subpart, an FDIC-supervised institution that is a servicer under an eligible servicer cash advance facility is not required to hold risk-based capital against potential VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 future cash advance payments that it may be required to provide under the contract governing the facility. (2) For an FDIC-supervised institution that acts as a servicer, the exposure amount for a servicer cash advance facility that is not an eligible servicer cash advance facility is equal to the amount of all potential future cash advance payments that the FDICsupervised institution may be contractually required to provide during the subsequent 12 month period under the contract governing the facility. (g) Interest-only mortgage-backed securities. Regardless of any other provisions in this subpart, the risk weight for a non-credit-enhancing interest-only mortgage-backed security may not be less than 100 percent. (h) Small-business loans and leases on personal property transferred with retained contractual exposure. (1) Regardless of any other provision of this subpart, an FDIC-supervised institution that has transferred small-business loans and leases on personal property (smallbusiness obligations) with recourse must include in risk-weighted assets only its contractual exposure to the small-business obligations if all the following conditions are met: (i) The transaction must be treated as a sale under GAAP. (ii) The FDIC-supervised institution establishes and maintains, pursuant to GAAP, a non-capital reserve sufficient to meet the FDIC-supervised institution’s reasonably estimated liability under the contractual obligation. (iii) The small-business obligations are to businesses that meet the criteria for a small-business concern established by the Small Business Administration under section 3(a) of the Small Business Act (15 U.S.C. 632 et seq.). (iv) The FDIC-supervised institution is well capitalized, as defined in subpart H of this part. For purposes of determining whether an FDICsupervised institution is well capitalized for purposes of this paragraph, the FDIC-supervised institution’s capital ratios must be calculated without regard to the capital treatment for transfers of small-business obligations under this paragraph. (2) The total outstanding amount of contractual exposure retained by an FDIC-supervised institution on transfers of small-business obligations receiving the capital treatment specified in paragraph (h)(1) of this section cannot exceed 15 percent of the FDICsupervised institution’s total capital. (3) If an FDIC-supervised institution ceases to be well capitalized under subpart H of this part or exceeds the 15 PO 00000 Frm 00173 Fmt 4701 Sfmt 4700 55511 percent capital limitation provided in paragraph (h)(2) of this section, the capital treatment under paragraph (h)(1) of this section will continue to apply to any transfers of small-business obligations with retained contractual exposure that occurred during the time that the FDIC-supervised institution was well capitalized and did not exceed the capital limit. (4) The risk-based capital ratios of the FDIC-supervised institution must be calculated without regard to the capital treatment for transfers of small-business obligations specified in paragraph (h)(1) of this section for purposes of: (i) Determining whether an FDICsupervised institution is adequately capitalized, undercapitalized, significantly undercapitalized, or critically undercapitalized under subpart H of this part; and (ii) Reclassifying a well-capitalized FDIC-supervised institution to adequately capitalized and requiring an adequately capitalized FDIC-supervised institution to comply with certain mandatory or discretionary supervisory actions as if the FDIC-supervised institution were in the next lower prompt-corrective-action category. (i) Nth-to-default credit derivatives— (1) Protection provider. An FDICsupervised institution may assign a risk weight using the SSFA in § 324.43 to an nth-to-default credit derivative in accordance with this paragraph. An FDIC-supervised institution must determine its exposure in the nth-todefault credit derivative as the largest notional amount of all the underlying exposures. (2) For purposes of determining the risk weight for an nth-to-default credit derivative using the SSFA, the FDICsupervised institution must calculate the attachment point and detachment point of its exposure as follows: (i) The attachment point (parameter A) is the ratio of the sum of the notional amounts of all underlying exposures that are subordinated to the FDICsupervised institution’s exposure to the total notional amount of all underlying exposures. The ratio is expressed as a decimal value between zero and one. In the case of a first-to-default credit derivative, there are no underlying exposures that are subordinated to the FDIC-supervised institution’s exposure. In the case of a second-or-subsequent-todefault credit derivative, the smallest (n1) notional amounts of the underlying exposure(s) are subordinated to the FDIC-supervised institution’s exposure. (ii) The detachment point (parameter D) equals the sum of parameter A plus the ratio of the notional amount of the FDIC-supervised institution’s exposure E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55512 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations in the nth-to-default credit derivative to the total notional amount of all underlying exposures. The ratio is expressed as a decimal value between zero and one. (3) An FDIC-supervised institution that does not use the SSFA to determine a risk weight for its nth-to-default credit derivative must assign a risk weight of 1,250 percent to the exposure. (4) Protection purchaser—(i) First-todefault credit derivatives. An FDICsupervised institution that obtains credit protection on a group of underlying exposures through a first-todefault credit derivative that meets the rules of recognition of § 324.36(b) must determine its risk-based capital requirement for the underlying exposures as if the FDIC-supervised institution synthetically securitized the underlying exposure with the smallest risk-weighted asset amount and had obtained no credit risk mitigant on the other underlying exposures. An FDICsupervised institution must calculate a risk-based capital requirement for counterparty credit risk according to § 324.34 for a first-to-default credit derivative that does not meet the rules of recognition of § 324.36(b). (ii) Second-or-subsequent-to-default credit derivatives. (A) An FDICsupervised institution that obtains credit protection on a group of underlying exposures through a nth-todefault credit derivative that meets the rules of recognition of § 324.36(b) (other than a first-to-default credit derivative) may recognize the credit risk mitigation benefits of the derivative only if: (1) The FDIC-supervised institution also has obtained credit protection on the same underlying exposures in the form of first-through-(n-1)-to-default credit derivatives; or (2) If n-1 of the underlying exposures have already defaulted. (B) If an FDIC-supervised institution satisfies the requirements of paragraph (i)(4)(ii)(A) of this section, the FDICsupervised institution must determine its risk-based capital requirement for the underlying exposures as if the FDICsupervised institution had only synthetically securitized the underlying exposure with the nth smallest riskweighted asset amount and had obtained no credit risk mitigant on the other underlying exposures. (C) An FDIC-supervised institution must calculate a risk-based capital requirement for counterparty credit risk according to § 324.34 for a nth-to-default credit derivative that does not meet the rules of recognition of § 324.36(b). (j) Guarantees and credit derivatives other than nth-to-default credit derivatives—(1) Protection provider. For VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 a guarantee or credit derivative (other than an nth-to-default credit derivative) provided by an FDIC-supervised institution that covers the full amount or a pro rata share of a securitization exposure’s principal and interest, the FDIC-supervised institution must risk weight the guarantee or credit derivative as if it holds the portion of the reference exposure covered by the guarantee or credit derivative. (2) Protection purchaser. (i) An FDICsupervised institution that purchases a guarantee or OTC credit derivative (other than an nth-to-default credit derivative) that is recognized under § 324.45 as a credit risk mitigant (including via collateral recognized under § 324.37) is not required to compute a separate counterparty credit risk capital requirement under § 324.31, in accordance with § 324.34(c). (ii) If an FDIC-supervised institution cannot, or chooses not to, recognize a purchased credit derivative as a credit risk mitigant under § 324.45, the FDICsupervised institution must determine the exposure amount of the credit derivative under § 324.34. (A) If the FDIC-supervised institution purchases credit protection from a counterparty that is not a securitization SPE, the FDIC-supervised institution must determine the risk weight for the exposure according to general risk weights under § 324.32. (B) If the FDIC-supervised institution purchases the credit protection from a counterparty that is a securitization SPE, the FDIC-supervised institution must determine the risk weight for the exposure according to section § 324.42, including § 324.42(a)(4) for a credit derivative that has a first priority claim on the cash flows from the underlying exposures of the securitization SPE (notwithstanding amounts due under interest rate or currency derivative contracts, fees due, or other similar payments). § 324.43 Simplified supervisory formula approach (SSFA) and the gross-up approach. (a) General requirements for the SSFA. To use the SSFA to determine the risk weight for a securitization exposure, an FDIC-supervised institution must have data that enables it to assign accurately the parameters described in paragraph (b) of this section. Data used to assign the parameters described in paragraph (b) of this section must be the most currently available data; if the contracts governing the underlying exposures of the securitization require payments on a monthly or quarterly basis, the data used to assign the parameters described PO 00000 Frm 00174 Fmt 4701 Sfmt 4700 in paragraph (b) of this section must be no more than 91 calendar days old. An FDIC-supervised institution that does not have the appropriate data to assign the parameters described in paragraph (b) of this section must assign a risk weight of 1,250 percent to the exposure. (b) SSFA parameters. To calculate the risk weight for a securitization exposure using the SSFA, an FDIC-supervised institution must have accurate information on the following five inputs to the SSFA calculation: (1) KG is the weighted-average (with unpaid principal used as the weight for each exposure) total capital requirement of the underlying exposures calculated using this subpart. KG is expressed as a decimal value between zero and one (that is, an average risk weight of 100 percent represents a value of KG equal to 0.08). (2) Parameter W is expressed as a decimal value between zero and one. Parameter W is the ratio of the sum of the dollar amounts of any underlying exposures of the securitization that meet any of the criteria as set forth in paragraphs (b)(2)(i) through (vi) of this section to the balance, measured in dollars, of underlying exposures: (i) Ninety days or more past due; (ii) Subject to a bankruptcy or insolvency proceeding; (iii) In the process of foreclosure; (iv) Held as real estate owned; (v) Has contractually deferred payments for 90 days or more, other than principal or interest payments deferred on: (A) Federally-guaranteed student loans, in accordance with the terms of those guarantee programs; or (B) Consumer loans, including nonfederally-guaranteed student loans, provided that such payments are deferred pursuant to provisions included in the contract at the time funds are disbursed that provide for period(s) of deferral that are not initiated based on changes in the creditworthiness of the borrower; or (vi) Is in default. (3) Parameter A is the attachment point for the exposure, which represents the threshold at which credit losses will first be allocated to the exposure. Except as provided in § 324.42(i) for nth-todefault credit derivatives, parameter A equals the ratio of the current dollar amount of underlying exposures that are subordinated to the exposure of the FDIC-supervised institution to the current dollar amount of underlying exposures. Any reserve account funded by the accumulated cash flows from the underlying exposures that is subordinated to the FDIC-supervised institution’s securitization exposure E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 may be included in the calculation of parameter A to the extent that cash is present in the account. Parameter A is expressed as a decimal value between zero and one. (4) Parameter D is the detachment point for the exposure, which represents the threshold at which credit losses of principal allocated to the exposure would result in a total loss of principal. Except as provided in § 324.42(i) for nthto-default credit derivatives, parameter D equals parameter A plus the ratio of the current dollar amount of the securitization exposures that are pari passu with the exposure (that is, have equal seniority with respect to credit risk) to the current dollar amount of the underlying exposures. Parameter D is expressed as a decimal value between zero and one. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (5) A supervisory calibration parameter, p, is equal to 0.5 for securitization exposures that are not resecuritization exposures and equal to 1.5 for resecuritization exposures. (c) Mechanics of the SSFA. KG and W are used to calculate KA, the augmented value of KG, which reflects the observed credit quality of the underlying exposures. KA is defined in paragraph (d) of this section. The values of parameters A and D, relative to KA determine the risk weight assigned to a securitization exposure as described in paragraph (d) of this section. The risk weight assigned to a securitization exposure, or portion of a securitization exposure, as appropriate, is the larger of the risk weight determined in accordance with this paragraph or PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 55513 paragraph (d) of this section and a risk weight of 20 percent. (1) When the detachment point, parameter D, for a securitization exposure is less than or equal to KA, the exposure must be assigned a risk weight of 1,250 percent. (2) When the attachment point, parameter A, for a securitization exposure is greater than or equal to KA, the FDIC-supervised institution must calculate the risk weight in accordance with paragraph (d) of this section. (3) When A is less than KA and D is greater than KA, the risk weight is a weighted-average of 1,250 percent and 1,250 percent times KSSFA calculated in accordance with paragraph (d) of this section. For the purpose of this weighted-average calculation: BILLING CODE 6714–01–P E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 BILLING CODE 6714–01–C (e) Gross-up approach—(1) Applicability. An FDIC-supervised institution that is not subject to subpart F of this part may apply the gross-up approach set forth in this section instead of the SSFA to determine the risk weight of its securitization exposures, provided that it applies the gross-up approach to all of its securitization exposures, except as otherwise provided for certain securitization exposures in §§ 324.44 and 324.45. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) To use the gross-up approach, an FDIC-supervised institution must calculate the following four inputs: (i) Pro rata share, which is the par value of the FDIC-supervised institution’s securitization exposure as a percent of the par value of the tranche in which the securitization exposure resides; (ii) Enhanced amount, which is the par value of tranches that are more senior to the tranche in which the FDICsupervised institution’s securitization resides; PO 00000 Frm 00176 Fmt 4701 Sfmt 4700 (iii) Exposure amount of the FDICsupervised institution’s securitization exposure calculated under § 324.42(c); and (iv) Risk weight, which is the weighted-average risk weight of underlying exposures of the securitization as calculated under this subpart. (3) Credit equivalent amount. The credit equivalent amount of a securitization exposure under this section equals the sum of: E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.022</GPH> 55514 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (i) The exposure amount of the FDICsupervised institution’s securitization exposure and (ii) The pro rata share multiplied by the enhanced amount, each calculated in accordance with paragraph (e)(2) of this section. (4) Risk-weighted assets. To calculate risk-weighted assets for a securitization exposure under the gross-up approach, an FDIC-supervised institution must apply the risk weight required under paragraph (e)(2) of this section to the credit equivalent amount calculated in paragraph (e)(3) of this section. (f) Limitations. Notwithstanding any other provision of this section, an FDICsupervised institution must assign a risk weight of not less than 20 percent to a securitization exposure. emcdonald on DSK67QTVN1PROD with RULES2 § 324.44 Securitization exposures to which the SSFA and gross-up approach do not apply. (a) General Requirement. An FDICsupervised institution must assign a 1,250 percent risk weight to all securitization exposures to which the FDIC-supervised institution does not apply the SSFA or the gross-up approach under § 324.43, except as set forth in this section. (b) Eligible ABCP liquidity facilities. An FDIC-supervised institution may determine the risk-weighted asset amount of an eligible ABCP liquidity facility by multiplying the exposure amount by the highest risk weight applicable to any of the individual underlying exposures covered by the facility. (c) A securitization exposure in a second loss position or better to an ABCP program—(1) Risk weighting. An FDIC-supervised institution may determine the risk-weighted asset amount of a securitization exposure that is in a second loss position or better to an ABCP program that meets the requirements of paragraph (c)(2) of this section by multiplying the exposure amount by the higher of the following risk weights: (i) 100 percent; and (ii) The highest risk weight applicable to any of the individual underlying exposures of the ABCP program. (2) Requirements. (i) The exposure is not an eligible ABCP liquidity facility; (ii) The exposure must be economically in a second loss position or better, and the first loss position must provide significant credit protection to the second loss position; (iii) The exposure qualifies as investment grade; and (iv) The FDIC-supervised institution holding the exposure must not retain or provide protection to the first loss position. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 § 324.45 Recognition of credit risk mitigants for securitization exposures. (a) General. (1) An originating FDICsupervised institution that has obtained a credit risk mitigant to hedge its exposure to a synthetic or traditional securitization that satisfies the operational criteria provided in § 324.41 may recognize the credit risk mitigant under §§ 324.36 or 324.37, but only as provided in this section. (2) An investing FDIC-supervised institution that has obtained a credit risk mitigant to hedge a securitization exposure may recognize the credit risk mitigant under §§ 324.36 or 324.37, but only as provided in this section. (b) Mismatches. An FDIC-supervised institution must make any applicable adjustment to the protection amount of an eligible guarantee or credit derivative as required in § 324.36(d), (e), and (f) for any hedged securitization exposure. In the context of a synthetic securitization, when an eligible guarantee or eligible credit derivative covers multiple hedged exposures that have different residual maturities, the FDIC-supervised institution must use the longest residual maturity of any of the hedged exposures as the residual maturity of all hedged exposures. §§ 324.46 through 324.50 [Reserved] Risk-Weighted Assets for Equity Exposures § 324.51 Introduction and exposure measurement. (a) General. (1) To calculate its riskweighted asset amounts for equity exposures that are not equity exposures to an investment fund, an FDICsupervised institution must use the Simple Risk-Weight Approach (SRWA) provided in § 324.52. An FDICsupervised institution must use the look-through approaches provided in § 324.53 to calculate its risk-weighted asset amounts for equity exposures to investment funds. (2) An FDIC-supervised institution must treat an investment in a separate account (as defined in § 324.2) as if it were an equity exposure to an investment fund as provided in § 324.53. (3) Stable value protection. (i) Stable value protection means a contract where the provider of the contract is obligated to pay: (A) The policy owner of a separate account an amount equal to the shortfall between the fair value and cost basis of the separate account when the policy owner of the separate account surrenders the policy, or (B) The beneficiary of the contract an amount equal to the shortfall between PO 00000 Frm 00177 Fmt 4701 Sfmt 4700 55515 the fair value and book value of a specified portfolio of assets. (ii) An FDIC-supervised institution that purchases stable value protection on its investment in a separate account must treat the portion of the carrying value of its investment in the separate account attributable to the stable value protection as an exposure to the provider of the protection and the remaining portion of the carrying value of its separate account as an equity exposure to an investment fund. (iii) An FDIC-supervised institution that provides stable value protection must treat the exposure as an equity derivative with an adjusted carrying value determined as the sum of paragraphs (b)(1) and (3) of this section. (b) Adjusted carrying value. For purposes of §§ 324.51 through 324.53, the adjusted carrying value of an equity exposure is: (1) For the on-balance sheet component of an equity exposure (other than an equity exposure that is classified as available-for-sale where the FDIC-supervised institution has made an AOCI opt-out election under § 324.22(b)(2)), the FDIC-supervised institution’s carrying value of the exposure; (2) For the on-balance sheet component of an equity exposure that is classified as available-for-sale where the FDIC-supervised institution has made an AOCI opt-out election under § 324.22(b)(2), the FDIC-supervised institution’s carrying value of the exposure less any net unrealized gains on the exposure that are reflected in such carrying value but excluded from the FDIC-supervised institution’s regulatory capital components; (3) For the off-balance sheet component of an equity exposure that is not an equity commitment, the effective notional principal amount of the exposure, the size of which is equivalent to a hypothetical on-balance sheet position in the underlying equity instrument that would evidence the same change in fair value (measured in dollars) given a small change in the price of the underlying equity instrument, minus the adjusted carrying value of the on-balance sheet component of the exposure as calculated in paragraph (b)(1) of this section; and (4) For a commitment to acquire an equity exposure (an equity commitment), the effective notional principal amount of the exposure is multiplied by the following conversion factors (CFs): (i) Conditional equity commitments with an original maturity of one year or less receive a CF of 20 percent. E:\FR\FM\10SER2.SGM 10SER2 55516 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (ii) Conditional equity commitments with an original maturity of over one year receive a CF of 50 percent. (iii) Unconditional equity commitments receive a CF of 100 percent. emcdonald on DSK67QTVN1PROD with RULES2 § 324.52 Simple risk-weight approach (SRWA). (a) General. Under the SRWA, an FDIC-supervised institution’s total riskweighted assets for equity exposures equals the sum of the risk-weighted asset amounts for each of the FDICsupervised institution’s individual equity exposures (other than equity exposures to an investment fund) as determined under this section and the risk-weighted asset amounts for each of the FDIC-supervised institution’s individual equity exposures to an investment fund as determined under § 324.53. (b) SRWA computation for individual equity exposures. An FDIC-supervised institution must determine the riskweighted asset amount for an individual equity exposure (other than an equity exposure to an investment fund) by multiplying the adjusted carrying value of the equity exposure or the effective portion and ineffective portion of a hedge pair (as defined in paragraph (c) of this section) by the lowest applicable risk weight in this paragraph (b). (1) Zero percent risk weight equity exposures. An equity exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, an MDB, and any other entity whose credit exposures receive a zero percent risk weight under § 324.32 may be assigned a zero percent risk weight. (2) 20 percent risk weight equity exposures. An equity exposure to a PSE, Federal Home Loan Bank or the Federal Agricultural Mortgage Corporation (Farmer Mac) must be assigned a 20 percent risk weight. (3) 100 percent risk weight equity exposures. The equity exposures set forth in this paragraph (b)(3) must be assigned a 100 percent risk weight. (i) Community development equity exposures. An equity exposure that qualifies as a community development investment under section 24 (Eleventh) of the National Bank Act, excluding equity exposures to an unconsolidated small business investment company and equity exposures held through a consolidated small business investment company described in section 302 of the Small Business Investment Act. (ii) Effective portion of hedge pairs. The effective portion of a hedge pair. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (iii) Non-significant equity exposures. Equity exposures, excluding significant investments in the capital of an unconsolidated financial institution in the form of common stock and exposures to an investment firm that would meet the definition of a traditional securitization were it not for the application of paragraph (8) of that definition in § 324.2 and has greater than immaterial leverage, to the extent that the aggregate adjusted carrying value of the exposures does not exceed 10 percent of the FDIC-supervised institution’s total capital. (A) To compute the aggregate adjusted carrying value of an FDIC-supervised institution’s equity exposures for purposes of this section, the FDICsupervised institution may exclude equity exposures described in paragraphs (b)(1), (b)(2), (b)(3)(i), and (b)(3)(ii) of this section, the equity exposure in a hedge pair with the smaller adjusted carrying value, and a proportion of each equity exposure to an investment fund equal to the proportion of the assets of the investment fund that are not equity exposures or that meet the criterion of paragraph (b)(3)(i) of this section. If an FDIC-supervised institution does not know the actual holdings of the investment fund, the FDIC-supervised institution may calculate the proportion of the assets of the fund that are not equity exposures based on the terms of the prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. If the sum of the investment limits for all exposure classes within the fund exceeds 100 percent, the FDIC-supervised institution must assume for purposes of this section that the investment fund invests to the maximum extent possible in equity exposures. (B) When determining which of an FDIC-supervised institution’s equity exposures qualify for a 100 percent risk weight under this paragraph (b), an FDIC-supervised institution first must include equity exposures to unconsolidated small business investment companies or held through consolidated small business investment companies described in section 302 of the Small Business Investment Act, then must include publicly traded equity exposures (including those held indirectly through investment funds), and then must include non-publicly traded equity exposures (including those held indirectly through investment funds). (4) 250 percent risk weight equity exposures. Significant investments in the capital of unconsolidated financial institutions in the form of common PO 00000 Frm 00178 Fmt 4701 Sfmt 4700 stock that are not deducted from capital pursuant to § 324.22(d) are assigned a 250 percent risk weight. (5) 300 percent risk weight equity exposures. A publicly traded equity exposure (other than an equity exposure described in paragraph (b)(7) of this section and including the ineffective portion of a hedge pair) must be assigned a 300 percent risk weight. (6) 400 percent risk weight equity exposures. An equity exposure (other than an equity exposure described in paragraph (b)(7) of this section) that is not publicly traded must be assigned a 400 percent risk weight. (7) 600 percent risk weight equity exposures. An equity exposure to an investment firm must be assigned a 600 percent risk weight, provided that the investment firm: (i) Would meet the definition of a traditional securitization were it not for the application of paragraph (8) of that definition; and (ii) Has greater than immaterial leverage. (c) Hedge transactions—(1) Hedge pair. A hedge pair is two equity exposures that form an effective hedge so long as each equity exposure is publicly traded or has a return that is primarily based on a publicly traded equity exposure. (2) Effective hedge. Two equity exposures form an effective hedge if the exposures either have the same remaining maturity or each has a remaining maturity of at least three months; the hedge relationship is formally documented in a prospective manner (that is, before the FDICsupervised institution acquires at least one of the equity exposures); the documentation specifies the measure of effectiveness (E) the FDIC-supervised institution will use for the hedge relationship throughout the life of the transaction; and the hedge relationship has an E greater than or equal to 0.8. An FDIC-supervised institution must measure E at least quarterly and must use one of three alternative measures of E as set forth in this paragraph (c). (i) Under the dollar-offset method of measuring effectiveness, the FDICsupervised institution must determine the ratio of value change (RVC). The RVC is the ratio of the cumulative sum of the changes in value of one equity exposure to the cumulative sum of the changes in the value of the other equity exposure. If RVC is positive, the hedge is not effective and E equals 0. If RVC is negative and greater than or equal to ¥1 (that is, between zero and ¥1), then E equals the absolute value of RVC. If RVC is negative and less than ¥1, then E equals 2 plus RVC. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55517 (iii) Under the regression method of measuring effectiveness, E equals the coefficient of determination of a regression in which the change in value of one exposure in a hedge pair is the dependent variable and the change in value of the other exposure in a hedge pair is the independent variable. However, if the estimated regression coefficient is positive, then E equals zero. (3) The effective portion of a hedge pair is E multiplied by the greater of the adjusted carrying values of the equity exposures forming a hedge pair. (4) The ineffective portion of a hedge pair is (1–E) multiplied by the greater of the adjusted carrying values of the equity exposures forming a hedge pair. emcdonald on DSK67QTVN1PROD with RULES2 § 324.53 funds. Equity exposures to investment (a) Available approaches. (1) Unless the exposure meets the requirements for a community development equity exposure under § 324.52(b)(3)(i), an FDIC-supervised institution must determine the risk-weighted asset amount of an equity exposure to an investment fund under the full lookthrough approach described in paragraph (b) of this section, the simple modified look-through approach described in paragraph (c) of this section, or the alterative modified lookthrough approach described paragraph (d) of this section, provided, however, that the minimum risk weight that may be assigned to an equity exposure under this section is 20 percent. (2) The risk-weighted asset amount of an equity exposure to an investment fund that meets the requirements for a community development equity exposure in § 324.52(b)(3)(i) is its adjusted carrying value. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (3) If an equity exposure to an investment fund is part of a hedge pair and the FDIC-supervised institution does not use the full look-through approach, the FDIC-supervised institution must use the ineffective portion of the hedge pair as determined under § 324.52(c) as the adjusted carrying value for the equity exposure to the investment fund. The risk-weighted asset amount of the effective portion of the hedge pair is equal to its adjusted carrying value. (b) Full look-through approach. An FDIC-supervised institution that is able to calculate a risk-weighted asset amount for its proportional ownership share of each exposure held by the investment fund (as calculated under this subpart as if the proportional ownership share of the adjusted carrying value of each exposure were held directly by the FDIC-supervised institution) may set the risk-weighted asset amount of the FDIC-supervised institution’s exposure to the fund equal to the product of: (1) The aggregate risk-weighted asset amounts of the exposures held by the fund as if they were held directly by the FDIC-supervised institution; and (2) The FDIC-supervised institution’s proportional ownership share of the fund. (c) Simple modified look-through approach. Under the simple modified look-through approach, the riskweighted asset amount for an FDICsupervised institution’s equity exposure to an investment fund equals the adjusted carrying value of the equity exposure multiplied by the highest risk weight that applies to any exposure the fund is permitted to hold under the prospectus, partnership agreement, or similar agreement that defines the fund’s permissible investments PO 00000 Frm 00179 Fmt 4701 Sfmt 4700 (excluding derivative contracts that are used for hedging rather than speculative purposes and that do not constitute a material portion of the fund’s exposures). (d) Alternative modified look-through approach. Under the alternative modified look-through approach, an FDIC-supervised institution may assign the adjusted carrying value of an equity exposure to an investment fund on a pro rata basis to different risk weight categories under this subpart based on the investment limits in the fund’s prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. The riskweighted asset amount for the FDICsupervised institution’s equity exposure to the investment fund equals the sum of each portion of the adjusted carrying value assigned to an exposure type multiplied by the applicable risk weight under this subpart. If the sum of the investment limits for all exposure types within the fund exceeds 100 percent, the FDIC-supervised institution must assume that the fund invests to the maximum extent permitted under its investment limits in the exposure type with the highest applicable risk weight under this subpart and continues to make investments in order of the exposure type with the next highest applicable risk weight under this subpart until the maximum total investment level is reached. If more than one exposure type applies to an exposure, the FDIC-supervised institution must use the highest applicable risk weight. An FDICsupervised institution may exclude derivative contracts held by the fund that are used for hedging rather than for speculative purposes and do not constitute a material portion of the fund’s exposures. E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.023</GPH> (ii) Under the variability-reduction method of measuring effectiveness: 55518 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations §§ 324.54 through 324.60 [Reserved] Disclosures § 324.61 Purpose and scope. Sections 324.61–324.63 of this subpart establish public disclosure requirements related to the capital requirements described in subpart B of this part for an FDIC-supervised institution with total consolidated assets of $50 billion or more as reported on the FDIC-supervised institution’s most recent year-end Call Report that is not an advanced approaches FDICsupervised institution making public disclosures pursuant to § 324.172. An advanced approaches FDIC-supervised institution that has not received approval from the FDIC to exit parallel run pursuant to § 324.121(d) is subject to the disclosure requirements described in §§ 324.62 and 324.63. Such an FDICsupervised institution must comply with § 324.62 unless it is a consolidated subsidiary of a bank holding company, savings and loan holding company, or depository institution that is subject to these disclosure requirements or a subsidiary of a non-U.S. banking organization that is subject to comparable public disclosure requirements in its home jurisdiction. For purposes of this section, total consolidated assets are determined based on the average of the FDICsupervised institution’s total consolidated assets in the four most recent quarters as reported on the Call Report; or the average of the FDICsupervised institution’s total consolidated assets in the most recent consecutive quarters as reported quarterly on the FDIC-supervised institution’s Call Report if the FDICsupervised institution has not filed such a report for each of the most recent four quarters. § 324.62 Disclosure requirements. (a) An FDIC-supervised institution described in § 324.61 must provide timely public disclosures each calendar quarter of the information in the applicable tables in § 324.63. If a significant change occurs, such that the most recent reported amounts are no longer reflective of the FDIC-supervised institution’s capital adequacy and risk profile, then a brief discussion of this change and its likely impact must be disclosed as soon as practicable thereafter. Qualitative disclosures that typically do not change each quarter (for example, a general summary of the FDIC-supervised institution’s risk management objectives and policies, reporting system, and definitions) may be disclosed annually after the end of the fourth calendar quarter, provided that any significant changes are disclosed in the interim. The FDICsupervised institution’s management may provide all of the disclosures required by §§ 324.61 through 324.63 in one place on the FDIC-supervised institution’s public Web site or may provide the disclosures in more than one public financial report or other regulatory reports, provided that the FDIC-supervised institution publicly provides a summary table specifically indicating the location(s) of all such disclosures. (b) An FDIC-supervised institution described in § 324.61 must have a formal disclosure policy approved by the board of directors that addresses its approach for determining the disclosures it makes. The policy must address the associated internal controls and disclosure controls and procedures. The board of directors and senior management are responsible for establishing and maintaining an effective internal control structure over financial reporting, including the disclosures required by this subpart, and must ensure that appropriate review of the disclosures takes place. One or more senior officers of the FDICsupervised institution must attest that the disclosures meet the requirements of this subpart. (c) If an FDIC-supervised institution described in § 324.61 concludes that specific commercial or financial information that it would otherwise be required to disclose under this section would be exempt from disclosure by the FDIC under the Freedom of Information Act (5 U.S.C. 552), then the FDICsupervised institution is not required to disclose that specific information pursuant to this section, but must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed. § 324.63 Disclosures by FDIC-supervised institutions described in § 324.61. (a) Except as provided in § 324.62, an FDIC-supervised institution described in § 324.61 must make the disclosures described in Tables 1 through 10 of this section. The FDIC-supervised institution must make these disclosures publicly available for each of the last three years (that is, twelve quarters) or such shorter period beginning on January 1, 2014. (b) An FDIC-supervised institution must publicly disclose each quarter the following: (1) Common equity tier 1 capital, additional tier 1 capital, tier 2 capital, tier 1 and total capital ratios, including the regulatory capital elements and all the regulatory adjustments and deductions needed to calculate the numerator of such ratios; (2) Total risk-weighted assets, including the different regulatory adjustments and deductions needed to calculate total risk-weighted assets; (3) Regulatory capital ratios during any transition periods, including a description of all the regulatory capital elements and all regulatory adjustments and deductions needed to calculate the numerator and denominator of each capital ratio during any transition period; and (4) A reconciliation of regulatory capital elements as they relate to its balance sheet in any audited consolidated financial statements. TABLE 1 TO § 324.63—SCOPE OF APPLICATION Qualitative Disclosures .......................... (a) ................................ emcdonald on DSK67QTVN1PROD with RULES2 (b) ................................ (c) ................................ Quantitative Disclosures ....................... VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (d) ................................ PO 00000 Frm 00180 The name of the top corporate entity in the group to which subpart D of this part applies. A brief description of the differences in the basis for consolidating entities 1 for accounting and regulatory purposes, with a description of those entities: (1) That are fully consolidated; (2) That are deconsolidated and deducted from total capital; (3) For which the total capital requirement is deducted; and (4) That are neither consolidated nor deducted (for example, where the investment in the entity is assigned a risk weight in accordance with this subpart). Any restrictions, or other major impediments, on transfer of funds or total capital within the group. The aggregate amount of surplus capital of insurance subsidiaries included in the total capital of the consolidated group. Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55519 TABLE 1 TO § 324.63—SCOPE OF APPLICATION—Continued (e) ................................ The aggregate amount by which actual total capital is less than the minimum total capital requirement in all subsidiaries, with total capital requirements and the name(s) of the subsidiaries with such deficiencies. 1 Entities include securities, insurance and other financial subsidiaries, commercial subsidiaries (where permitted), and significant minority equity investments in insurance, financial and commercial entities. TABLE 2 TO § 324.63—CAPITAL STRUCTURE Qualitative Disclosures .......................... (a) ................................ Quantitative Disclosures ....................... (b) ................................ (c) ................................ (d) ................................ Summary information on the terms and conditions of the main features of all regulatory capital instruments. The amount of common equity tier 1 capital, with separate disclosure of: (1) Common stock and related surplus; (2) Retained earnings; (3) Common equity minority interest; (4) AOCI; and (5) Regulatory adjustments and deductions made to common equity tier 1 capital. The amount of tier 1 capital, with separate disclosure of: (1) Additional tier 1 capital elements, including additional tier 1 capital instruments and tier 1 minority interest not included in common equity tier 1 capital; and (2) Regulatory adjustments and deductions made to tier 1 capital. The amount of total capital, with separate disclosure of: (1) Tier 2 capital elements, including tier 2 capital instruments and total capital minority interest not included in tier 1 capital; and (2) Regulatory adjustments and deductions made to total capital. TABLE 3 TO § 324.63—CAPITAL ADEQUACY Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ (c) ................................ (d) ................................ (e) ................................ A summary discussion of the FDIC-supervised institution’s approach to assessing the adequacy of its capital to support current and future activities. Risk-weighted assets for: (1) Exposures to sovereign entities; (2) Exposures to certain supranational entities and MDBs; (3) Exposures to depository institutions, foreign banks, and credit unions; (4) Exposures to PSEs; (5) Corporate exposures; (6) Residential mortgage exposures; (7) Statutory multifamily mortgages and pre-sold construction loans; (8) HVCRE loans; (9) Past due loans; (10) Other assets; (11) Cleared transactions; (12) Default fund contributions; (13) Unsettled transactions; (14) Securitization exposures; and (15) Equity exposures. Standardized market risk-weighted assets as calculated under subpart F of this part. Common equity tier 1, tier 1 and total risk-based capital ratios: (1) For the top consolidated group; and (2) For each depository institution subsidiary. Total standardized risk-weighted assets. TABLE 4 TO § 324.63—CAPITAL CONSERVATION BUFFER Quantitative Disclosures ....................... (a) ................................ (b) ................................ emcdonald on DSK67QTVN1PROD with RULES2 (c) ................................ (c) General qualitative disclosure requirement. For each separate risk area VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 At least quarterly, the FDIC-supervised institution must calculate and publicly disclose the capital conservation buffer as described under § 324.11. At least quarterly, the FDIC-supervised institution must calculate and publicly disclose the eligible retained income of the FDIC-supervised institution, as described under § 324.11. At least quarterly, the FDIC-supervised institution must calculate and publicly disclose any limitations it has on distributions and discretionary bonus payments resulting from the capital conservation buffer framework described under § 324.11, including the maximum payout amount for the quarter. described in Tables 5 through 10, the FDIC-supervised institution must PO 00000 Frm 00181 Fmt 4701 Sfmt 4700 describe its risk management objectives and policies, including: strategies and E:\FR\FM\10SER2.SGM 10SER2 55520 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations processes; the structure and organization of the relevant risk management function; the scope and nature of risk reporting and/or measurement systems; policies for hedging and/or mitigating risk and strategies and processes for monitoring the continuing effectiveness of hedges/ mitigants. TABLE 5 TO § 324.63—CREDIT RISK: GENERAL DISCLOSURES Qualitative Disclosures .......................... (a) ................................ Quantitative Disclosures ....................... (b) ................................ (c) ................................ (d) ................................ (e) ................................ (f) ................................. (g) ................................ (h) ................................ The general qualitative disclosure requirement with respect to credit risk (excluding counterparty credit risk disclosed in accordance with Table 6 to § 324.63), including the: (1) Policy for determining past due or delinquency status; (2) Policy for placing loans on nonaccrual; (3) Policy for returning loans to accrual status; (4) Definition of and policy for identifying impaired loans (for financial accounting purposes); (5) Description of the methodology that the FDIC-supervised institution uses to estimate its allowance for loan and lease losses, including statistical methods used where applicable; (6) Policy for charging-off uncollectible amounts; and (7) Discussion of the FDIC-supervised institution’s credit risk management policy. Total credit risk exposures and average credit risk exposures, after accounting offsets in accordance with GAAP, without taking into account the effects of credit risk mitigation techniques (for example, collateral and netting not permitted under GAAP), over the period categorized by major types of credit exposure. For example, FDIC-supervised institutions could use categories similar to that used for financial statement purposes. Such categories might include, for instance: (1) Loans, off-balance sheet commitments, and other non-derivative off-balance sheet exposures; (2) Debt securities; and (3) OTC derivatives.2 Geographic distribution of exposures, categorized in significant areas by major types of credit exposure.3 Industry or counterparty type distribution of exposures, categorized by major types of credit exposure. By major industry or counterparty type: (1) Amount of impaired loans for which there was a related allowance under GAAP; (2) Amount of impaired loans for which there was no related allowance under GAAP; (3) Amount of loans past due 90 days and on nonaccrual; (4) Amount of loans past due 90 days and still accruing; 4 (5) The balance in the allowance for loan and lease losses at the end of each period, disaggregated on the basis of the FDIC-supervised institution’s impairment method. To disaggregate the information required on the basis of impairment methodology, an entity shall separately disclose the amounts based on the requirements in GAAP; and (6) Charge-offs during the period. Amount of impaired loans and, if available, the amount of past due loans categorized by significant geographic areas including, if practical, the amounts of allowances related to each geographical area 5, further categorized as required by GAAP. Reconciliation of changes in ALLL.6 Remaining contractual maturity delineation (for example, one year or less) of the whole portfolio, categorized by credit exposure. 1 Table 5 to § 324.63 does not cover equity exposures, which should be reported in Table 9 to § 324.63. for example, ASC Topic 815–10 and 210, as they may be amended from time to time. 3 Geographical areas may consist of individual countries, groups of countries, or regions within countries. An FDIC-supervised institution might choose to define the geographical areas based on the way the FDIC-supervised institution’s portfolio is geographically managed. The criteria used to allocate the loans to geographical areas must be specified. 4 An FDIC-supervised institution is encouraged also to provide an analysis of the aging of past-due loans. 5 The portion of the general allowance that is not allocated to a geographical area should be disclosed separately. 6 The reconciliation should include the following: a description of the allowance; the opening balance of the allowance; charge-offs taken against the allowance during the period; amounts provided (or reversed) for estimated probable loan losses during the period; any other adjustments (for example, exchange rate differences, business combinations, acquisitions and disposals of subsidiaries), including transfers between allowances; and the closing balance of the allowance. Charge-offs and recoveries that have been recorded directly to the income statement should be disclosed separately. emcdonald on DSK67QTVN1PROD with RULES2 2 See, VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00182 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55521 TABLE 6 TO § 324.63—GENERAL DISCLOSURE FOR COUNTERPARTY CREDIT RISK-RELATED EXPOSURES Qualitative Disclosures .......................... (a) ................................ Quantitative Disclosures ....................... (b) ................................ (c) ................................ The general qualitative disclosure requirement with respect to OTC derivatives, eligible margin loans, and repo-style transactions, including a discussion of: (1) The methodology used to assign credit limits for counterparty credit exposures; (2) Policies for securing collateral, valuing and managing collateral, and establishing credit reserves; (3) The primary types of collateral taken; and (4) The impact of the amount of collateral the FDIC-supervised institution would have to provide given a deterioration in the FDIC-supervised institution’s own creditworthiness. Gross positive fair value of contracts, collateral held (including type, for example, cash, government securities), and net unsecured credit exposure.1 An FDIC-supervised institution also must disclose the notional value of credit derivative hedges purchased for counterparty credit risk protection and the distribution of current credit exposure by exposure type.2 Notional amount of purchased and sold credit derivatives, segregated between use for the FDIC-supervised institution’s own credit portfolio and in its intermediation activities, including the distribution of the credit derivative products used, categorized further by protection bought and sold within each product group. 1 Net unsecured credit exposure is the credit exposure after considering both the benefits from legally enforceable netting agreements and collateral arrangements without taking into account haircuts for price volatility, liquidity, etc. 2 This may include interest rate derivative contracts, foreign exchange derivative contracts, equity derivative contracts, credit derivatives, commodity or other derivative contracts, repo-style transactions, and eligible margin loans. TABLE 7 TO § 324.63—CREDIT RISK MITIGATION 1 2 Qualitative Disclosures .......................... (a) ................................ Quantitative Disclosures ....................... (b) ................................ (c) ................................ The general qualitative disclosure requirement with respect to credit risk mitigation, including: (1) Policies and processes for collateral valuation and management; (2) A description of the main types of collateral taken by the FDIC-supervised institution; (3) The main types of guarantors/credit derivative counterparties and their creditworthiness; and (4) Information about (market or credit) risk concentrations with respect to credit risk mitigation. For each separately disclosed credit risk portfolio, the total exposure that is covered by eligible financial collateral, and after the application of haircuts. For each separately disclosed portfolio, the total exposure that is covered by guarantees/credit derivatives and the risk-weighted asset amount associated with that exposure. 1 At a minimum, an FDIC-supervised institution must provide the disclosures in Table 7 in relation to credit risk mitigation that has been recognized for the purposes of reducing capital requirements under this subpart. Where relevant, FDIC-supervised institutions are encouraged to give further information about mitigants that have not been recognized for that purpose. 2 Credit derivatives that are treated, for the purposes of this subpart, as synthetic securitization exposures should be excluded from the credit risk mitigation disclosures and included within those relating to securitization (Table 8 to § 324.63). TABLE 8 TO § 324.63—SECURITIZATION emcdonald on DSK67QTVN1PROD with RULES2 Qualitative Disclosures ................................. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (a) .................................... PO 00000 Frm 00183 Fmt 4701 The general qualitative disclosure requirement with respect to a securitization (including synthetic securitizations), including a discussion of: (1) The FDIC-supervised institution’s objectives for securitizing assets, including the extent to which these activities transfer credit risk of the underlying exposures away from the FDIC-supervised institution to other entities and including the type of risks assumed and retained with resecuritization activity;1 (2) The nature of the risks (e.g. liquidity risk) inherent in the securitized assets; (3) The roles played by the FDIC-supervised institution in the securitization process 2 and an indication of the extent of the FDICsupervised institution’s involvement in each of them; (4) The processes in place to monitor changes in the credit and market risk of securitization exposures including how those processes differ for resecuritization exposures; (5) The FDIC-supervised institution’s policy for mitigating the credit risk retained through securitization and resecuritization exposures; and (6) The risk-based capital approaches that the FDIC-supervised institution follows for its securitization exposures including the type of securitization exposure to which each approach applies. Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55522 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 8 TO § 324.63—SECURITIZATION—Continued (b) .................................... (c) ..................................... (d) .................................... Quantitative Disclosures ............................... (e) .................................... (f) ..................................... (g) .................................... (h) .................................... (i) ...................................... (j) ...................................... emcdonald on DSK67QTVN1PROD with RULES2 (k) ..................................... A list of: (1) The type of securitization SPEs that the FDIC-supervised institution, as sponsor, uses to securitize third-party exposures. The FDIC-supervised institution must indicate whether it has exposure to these SPEs, either on- or off-balance sheet; and (2) Affiliated entities: (i) That the FDIC-supervised institution manages or advises; and (ii) That invest either in the securitization exposures that the FDIC-supervised institution has securitized or in securitization SPEs that the FDIC-supervised institution sponsors.3 Summary of the FDIC-supervised institution’s accounting policies for securitization activities, including: (1) Whether the transactions are treated as sales or financings; (2) Recognition of gain-on-sale; (3) Methods and key assumptions applied in valuing retained or purchased interests; (4) Changes in methods and key assumptions from the previous period for valuing retained interests and impact of the changes; (5) Treatment of synthetic securitizations; (6) How exposures intended to be securitized are valued and whether they are recorded under subpart D of this part; and (7) Policies for recognizing liabilities on the balance sheet for arrangements that could require the FDIC-supervised institution to provide financial support for securitized assets. An explanation of significant changes to any quantitative information since the last reporting period. The total outstanding exposures securitized by the FDIC-supervised institution in securitizations that meet the operational criteria provided in § 324.41 (categorized into traditional and synthetic securitizations), by exposure type, separately for securitizations of third-party exposures for which the FDIC-supervised institution acts only as sponsor.4 For exposures securitized by the FDIC-supervised institution in securitizations that meet the operational criteria in § 324.41: (1) Amount of securitized assets that are impaired/past due categorized by exposure type; 5 and (2) Losses recognized by the FDIC-supervised institution during the current period categorized by exposure type.6 The total amount of outstanding exposures intended to be securitized categorized by exposure type. Aggregate amount of: (1) On-balance sheet securitization exposures retained or purchased categorized by exposure type; and (2) Off-balance sheet securitization exposures categorized by exposure type. (1) Aggregate amount of securitization exposures retained or purchased and the associated capital requirements for these exposures, categorized between securitization and resecuritization exposures, further categorized into a meaningful number of risk weight bands and by risk-based capital approach (e.g., SSFA); and (2) Exposures that have been deducted entirely from tier 1 capital, CEIOs deducted from total capital (as described in § 324.42(a)(1)), and other exposures deducted from total capital should be disclosed separately by exposure type. Summary of current year’s securitization activity, including the amount of exposures securitized (by exposure type), and recognized gain or loss on sale by exposure type. Aggregate amount of resecuritization exposures retained or purchased categorized according to: (1) Exposures to which credit risk mitigation is applied and those not applied; and (2) Exposures to guarantors categorized according to guarantor creditworthiness categories or guarantor name. 1 The FDIC-supervised institution should describe the structure of resecuritizations in which it participates; this description should be provided for the main categories of resecuritization products in which the FDIC-supervised institution is active. 2 For example, these roles may include originator, investor, servicer, provider of credit enhancement, sponsor, liquidity provider, or swap provider. 3 Such affiliated entities may include, for example, money market funds, to be listed individually, and personal and private trusts, to be noted collectively. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00184 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55523 4 ‘‘Exposures securitized’’ include underlying exposures originated by the FDIC-supervised institution, whether generated by them or purchased, and recognized in the balance sheet, from third parties, and third-party exposures included in sponsored transactions. Securitization transactions (including underlying exposures originally on the FDIC-supervised institution’s balance sheet and underlying exposures acquired by the FDIC-supervised institution from third-party entities) in which the originating bank does not retain any securitization exposure should be shown separately but need only be reported for the year of inception. FDIC-supervised institutions are required to disclose exposures regardless of whether there is a capital charge under this part. 5 Include credit-related other than temporary impairment (OTTI). 6 For example, charge-offs/allowances (if the assets remain on the FDIC-supervised institution’s balance sheet) or credit-related OTTI of interest-only strips and other retained residual interests, as well as recognition of liabilities for probable future financial support required of the FDICsupervised institution with respect to securitized assets. TABLE 9 TO § 324.63—EQUITIES NOT SUBJECT TO SUBPART F OF THIS PART Qualitative Disclosures .......................... (a) ................................ Quantitative Disclosures ....................... (b) ................................ (c) ................................ (d) ................................ (e) ................................ (f) ................................. 1 2 The general qualitative disclosure requirement with respect to equity risk for equities not subject to subpart F of this part, including: (1) Differentiation between holdings on which capital gains are expected and those taken under other objectives including for relationship and strategic reasons; and (2) Discussion of important policies covering the valuation of and accounting for equity holdings not subject to subpart F of this part. This includes the accounting techniques and valuation methodologies used, including key assumptions and practices affecting valuation as well as significant changes in these practices. Value disclosed on the balance sheet of investments, as well as the fair value of those investments; for securities that are publicly traded, a comparison to publicly-quoted share values where the share price is materially different from fair value. The types and nature of investments, including the amount that is: (1) Publicly traded; and (2) Non publicly traded. The cumulative realized gains (losses) arising from sales and liquidations in the reporting period. (1) Total unrealized gains (losses).1 (2) Total latent revaluation gains (losses).2 (3) Any amounts of the above included in tier 1 or tier 2 capital. Capital requirements categorized by appropriate equity groupings, consistent with the FDIC-supervised institution’s methodology, as well as the aggregate amounts and the type of equity investments subject to any supervisory transition regarding regulatory capital requirements. Unrealized gains (losses) recognized on the balance sheet but not through earnings. Unrealized gains (losses) not recognized either on the balance sheet or through earnings. TABLE 10 TO § 324.63—INTEREST RATE RISK FOR NON-TRADING ACTIVITIES Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ §§ 324.64 through 324.99 [Reserved] Subpart E—Risk-Weighted Assets— Internal Ratings-Based and Advanced Measurement Approaches emcdonald on DSK67QTVN1PROD with RULES2 § 324.100 Purpose, applicability, and principle of conservatism. (a) Purpose. This subpart E establishes: (1) Minimum qualifying criteria for FDIC-supervised institutions using institution-specific internal risk measurement and management processes for calculating risk-based capital requirements; and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 The general qualitative disclosure requirement, including the nature of interest rate risk for non-trading activities and key assumptions, including assumptions regarding loan prepayments and behavior of non-maturity deposits, and frequency of measurement of interest rate risk for non-trading activities. The increase (decline) in earnings or economic value (or relevant measure used by management) for upward and downward rate shocks according to management’s method for measuring interest rate risk for non-trading activities, categorized by currency (as appropriate). (2) Methodologies for such FDICsupervised institutions to calculate their total risk-weighted assets. (b) Applicability. (1) This subpart applies to an FDIC-supervised institution that: (i) Has consolidated total assets, as reported on its most recent year-end Call Report equal to $250 billion or more; (ii) Has consolidated total on-balance sheet foreign exposure on its most recent year-end Call Report equal to $10 billion or more (where total on-balance sheet foreign exposure equals total cross-border claims less claims with a head office or guarantor located in another country plus redistributed PO 00000 Frm 00185 Fmt 4701 Sfmt 4700 guaranteed amounts to the country of head office or guarantor plus local country claims on local residents plus revaluation gains on foreign exchange and derivative products, calculated in accordance with the Federal Financial Institutions Examination Council (FFIEC) 009 Country Exposure Report); (iii) Is a subsidiary of a depository institution that uses this subpart or the advanced approaches pursuant to subpart E of 12 CFR part 3 (OCC), or 12 CFR part 217 (Federal Reserve) to calculate its total risk-weighted assets; (iv) Is a subsidiary of a bank holding company or savings and loan holding company that uses the advanced approaches pursuant to 12 CFR part 217 E:\FR\FM\10SER2.SGM 10SER2 55524 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations to calculate its total risk-weighted assets; or (v) Elects to use this subpart to calculate its total risk-weighted assets. (2) An FDIC-supervised institution that is subject to this subpart shall remain subject to this subpart unless the FDIC determines in writing that application of this subpart is not appropriate in light of the FDICsupervised institution’s asset size, level of complexity, risk profile, or scope of operations. In making a determination under this paragraph (b), the FDIC will apply notice and response procedures in the same manner and to the same extent as the notice and response procedures in § 324.5. (3) A market risk FDIC-supervised institution must exclude from its calculation of risk-weighted assets under this subpart the risk-weighted asset amounts of all covered positions, as defined in subpart F of this part (except foreign exchange positions that are not trading positions, over-thecounter derivative positions, cleared transactions, and unsettled transactions). (c) Principle of conservatism. Notwithstanding the requirements of this subpart, an FDIC-supervised institution may choose not to apply a provision of this subpart to one or more exposures provided that: (1) The FDIC-supervised institution can demonstrate on an ongoing basis to the satisfaction of the FDIC that not applying the provision would, in all circumstances, unambiguously generate a risk-based capital requirement for each such exposure greater than that which would otherwise be required under this subpart; (2) The FDIC-supervised institution appropriately manages the risk of each such exposure; (3) The FDIC-supervised institution notifies the FDIC in writing prior to applying this principle to each such exposure; and (4) The exposures to which the FDICsupervised institution applies this principle are not, in the aggregate, material to the FDIC-supervised institution. emcdonald on DSK67QTVN1PROD with RULES2 § 324.101 Definitions. (a) Terms that are set forth in § 324.2 and used in this subpart have the definitions assigned thereto in § 324.2. (b) For the purposes of this subpart, the following terms are defined as follows: Advanced internal ratings-based (IRB) systems means an advanced approaches FDIC-supervised institution’s internal risk rating and segmentation system; risk parameter quantification system; VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 data management and maintenance system; and control, oversight, and validation system for credit risk of wholesale and retail exposures. Advanced systems means an advanced approaches FDIC-supervised institution’s advanced IRB systems, operational risk management processes, operational risk data and assessment systems, operational risk quantification systems, and, to the extent used by the FDIC-supervised institution, the internal models methodology, advanced CVA approach, double default excessive correlation detection process, and internal models approach (IMA) for equity exposures. Backtesting means the comparison of an FDIC-supervised institution’s internal estimates with actual outcomes during a sample period not used in model development. In this context, backtesting is one form of out-of-sample testing. Benchmarking means the comparison of an FDIC-supervised institution’s internal estimates with relevant internal and external data or with estimates based on other estimation techniques. Bond option contract means a bond option, bond future, or any other instrument linked to a bond that gives rise to similar counterparty credit risk. Business environment and internal control factors means the indicators of an FDIC-supervised institution’s operational risk profile that reflect a current and forward-looking assessment of the FDIC-supervised institution’s underlying business risk factors and internal control environment. Credit default swap (CDS) means a financial contract executed under standard industry documentation that allows one party (the protection purchaser) to transfer the credit risk of one or more exposures (reference exposure(s)) to another party (the protection provider) for a certain period of time. Credit valuation adjustment (CVA) means the fair value adjustment to reflect counterparty credit risk in valuation of OTC derivative contracts. Default—For the purposes of calculating capital requirements under this subpart: (1) Retail. (i) A retail exposure of an FDIC-supervised institution is in default if: (A) The exposure is 180 days past due, in the case of a residential mortgage exposure or revolving exposure; (B) The exposure is 120 days past due, in the case of retail exposures that are not residential mortgage exposures or revolving exposures; or PO 00000 Frm 00186 Fmt 4701 Sfmt 4700 (C) The FDIC-supervised institution has taken a full or partial charge-off, write-down of principal, or material negative fair value adjustment of principal on the exposure for creditrelated reasons. (ii) Notwithstanding paragraph (1)(i) of this definition, for a retail exposure held by a non-U.S. subsidiary of the FDIC-supervised institution that is subject to an internal ratings-based approach to capital adequacy consistent with the Basel Committee on Banking Supervision’s ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework’’ in a non-U.S. jurisdiction, the FDIC-supervised institution may elect to use the definition of default that is used in that jurisdiction, provided that the FDIC-supervised institution has obtained prior approval from the FDIC to use the definition of default in that jurisdiction. (iii) A retail exposure in default remains in default until the FDICsupervised institution has reasonable assurance of repayment and performance for all contractual principal and interest payments on the exposure. (2) Wholesale. (i) An FDIC-supervised institution’s wholesale obligor is in default if: (A) The FDIC-supervised institution determines that the obligor is unlikely to pay its credit obligations to the FDICsupervised institution in full, without recourse by the FDIC-supervised institution to actions such as realizing collateral (if held); or (B) The obligor is past due more than 90 days on any material credit obligation(s) to the FDIC-supervised institution.25 (ii) An obligor in default remains in default until the FDIC-supervised institution has reasonable assurance of repayment and performance for all contractual principal and interest payments on all exposures of the FDICsupervised institution to the obligor (other than exposures that have been fully written-down or charged-off). Dependence means a measure of the association among operational losses across and within units of measure. Economic downturn conditions means, with respect to an exposure held by the FDIC-supervised institution, those conditions in which the aggregate default rates for that exposure’s wholesale or retail exposure subcategory (or subdivision of such subcategory selected by the FDIC-supervised 25 Overdrafts are past due once the obligor has breached an advised limit or been advised of a limit smaller than the current outstanding balance. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations institution) in the exposure’s national jurisdiction (or subdivision of such jurisdiction selected by the FDICsupervised institution) are significantly higher than average. Effective maturity (M) of a wholesale exposure means: (1) For wholesale exposures other than repo-style transactions, eligible margin loans, and OTC derivative contracts described in paragraph (2) or (3) of this definition: (i) The weighted-average remaining maturity (measured in years, whole or fractional) of the expected contractual cash flows from the exposure, using the undiscounted amounts of the cash flows as weights; or (ii) The nominal remaining maturity (measured in years, whole or fractional) of the exposure. (2) For repo-style transactions, eligible margin loans, and OTC derivative contracts subject to a qualifying master netting agreement for which the FDICsupervised institution does not apply the internal models approach in § 324.132(d), the weighted-average remaining maturity (measured in years, whole or fractional) of the individual transactions subject to the qualifying master netting agreement, with the weight of each individual transaction set equal to the notional amount of the transaction. (3) For repo-style transactions, eligible margin loans, and OTC derivative contracts for which the FDIC-supervised institution applies the internal models approach in § 324.132(d), the value determined in § 324.132(d)(4). Eligible double default guarantor, with respect to a guarantee or credit derivative obtained by an FDICsupervised institution, means: (1) U.S.-based entities. A depository institution, a bank holding company, a savings and loan holding company, or a securities broker or dealer registered with the SEC under the Securities Exchange Act, if at the time the guarantee is issued or anytime thereafter, has issued and outstanding an unsecured debt security without credit enhancement that is investment grade. (2) Non-U.S.-based entities. A foreign bank, or a non-U.S.-based securities firm if the FDIC-supervised institution demonstrates that the guarantor is subject to consolidated supervision and regulation comparable to that imposed on U.S. depository institutions (or securities broker-dealers), if at the time the guarantee is issued or anytime thereafter, has issued and outstanding an unsecured debt security without credit enhancement that is investment grade. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Eligible operational risk offsets means amounts, not to exceed expected operational loss, that: (1) Are generated by internal business practices to absorb highly predictable and reasonably stable operational losses, including reserves calculated consistent with GAAP; and (2) Are available to cover expected operational losses with a high degree of certainty over a one-year horizon. Eligible purchased wholesale exposure means a purchased wholesale exposure that: (1) The FDIC-supervised institution or securitization SPE purchased from an unaffiliated seller and did not directly or indirectly originate; (2) Was generated on an arm’s-length basis between the seller and the obligor (intercompany accounts receivable and receivables subject to contra-accounts between firms that buy and sell to each other do not satisfy this criterion); (3) Provides the FDIC-supervised institution or securitization SPE with a claim on all proceeds from the exposure or a pro rata interest in the proceeds from the exposure; (4) Has an M of less than one year; and (5) When consolidated by obligor, does not represent a concentrated exposure relative to the portfolio of purchased wholesale exposures. Expected exposure (EE) means the expected value of the probability distribution of non-negative credit risk exposures to a counterparty at any specified future date before the maturity date of the longest term transaction in the netting set. Any negative fair values in the probability distribution of fair values to a counterparty at a specified future date are set to zero to convert the probability distribution of fair values to the probability distribution of credit risk exposures. Expected operational loss (EOL) means the expected value of the distribution of potential aggregate operational losses, as generated by the FDIC-supervised institution’s operational risk quantification system using a one-year horizon. Expected positive exposure (EPE) means the weighted average over time of expected (non-negative) exposures to a counterparty where the weights are the proportion of the time interval that an individual expected exposure represents. When calculating risk-based capital requirements, the average is taken over a one-year horizon. Exposure at default (EAD) means: (1) For the on-balance sheet component of a wholesale exposure or segment of retail exposures (other than an OTC derivative contract, a repo-style PO 00000 Frm 00187 Fmt 4701 Sfmt 4700 55525 transaction or eligible margin loan for which the FDIC-supervised institution determines EAD under § 324.132, a cleared transaction, or default fund contribution), EAD means the FDICsupervised institution’s carrying value (including net accrued but unpaid interest and fees) for the exposure or segment less any allocated transfer risk reserve for the exposure or segment. (2) For the off-balance sheet component of a wholesale exposure or segment of retail exposures (other than an OTC derivative contract, a repo-style transaction or eligible margin loan for which the FDIC-supervised institution determines EAD under § 324.132, cleared transaction, or default fund contribution) in the form of a loan commitment, line of credit, trade-related letter of credit, or transaction-related contingency, EAD means the FDICsupervised institution’s best estimate of net additions to the outstanding amount owed the FDIC-supervised institution, including estimated future additional draws of principal and accrued but unpaid interest and fees, that are likely to occur over a one-year horizon assuming the wholesale exposure or the retail exposures in the segment were to go into default. This estimate of net additions must reflect what would be expected during economic downturn conditions. For the purposes of this definition: (i) Trade-related letters of credit are short-term, self-liquidating instruments that are used to finance the movement of goods and are collateralized by the underlying goods. (ii) Transaction-related contingencies relate to a particular transaction and include, among other things, performance bonds and performancebased letters of credit. (3) For the off-balance sheet component of a wholesale exposure or segment of retail exposures (other than an OTC derivative contract, a repo-style transaction, or eligible margin loan for which the FDIC-supervised institution determines EAD under § 324.132, cleared transaction, or default fund contribution) in the form of anything other than a loan commitment, line of credit, trade-related letter of credit, or transaction-related contingency, EAD means the notional amount of the exposure or segment. (4) EAD for OTC derivative contracts is calculated as described in § 324.132. An FDIC-supervised institution also may determine EAD for repo-style transactions and eligible margin loans as described in § 324.132. Exposure category means any of the wholesale, retail, securitization, or equity exposure categories. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55526 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations External operational loss event data means, with respect to an FDICsupervised institution, gross operational loss amounts, dates, recoveries, and relevant causal information for operational loss events occurring at organizations other than the FDICsupervised institution. IMM exposure means a repo-style transaction, eligible margin loan, or OTC derivative for which an FDICsupervised institution calculates its EAD using the internal models methodology of § 324.132(d). Internal operational loss event data means, with respect to an FDICsupervised institution, gross operational loss amounts, dates, recoveries, and relevant causal information for operational loss events occurring at the FDIC-supervised institution. Loss given default (LGD) means: (1) For a wholesale exposure, the greatest of: (i) Zero; (ii) The FDIC-supervised institution’s empirically based best estimate of the long-run default-weighted average economic loss, per dollar of EAD, the FDIC-supervised institution would expect to incur if the obligor (or a typical obligor in the loss severity grade assigned by the FDIC-supervised institution to the exposure) were to default within a one-year horizon over a mix of economic conditions, including economic downturn conditions; or (iii) The FDIC-supervised institution’s empirically based best estimate of the economic loss, per dollar of EAD, the FDIC-supervised institution would expect to incur if the obligor (or a typical obligor in the loss severity grade assigned by the FDIC-supervised institution to the exposure) were to default within a one-year horizon during economic downturn conditions. (2) For a segment of retail exposures, the greatest of: (i) Zero; (ii) The FDIC-supervised institution’s empirically based best estimate of the long-run default-weighted average economic loss, per dollar of EAD, the FDIC-supervised institution would expect to incur if the exposures in the segment were to default within a oneyear horizon over a mix of economic conditions, including economic downturn conditions; or (iii) The FDIC-supervised institution’s empirically based best estimate of the economic loss, per dollar of EAD, the FDIC-supervised institution would expect to incur if the exposures in the segment were to default within a oneyear horizon during economic downturn conditions. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (3) The economic loss on an exposure in the event of default is all material credit-related losses on the exposure (including accrued but unpaid interest or fees, losses on the sale of collateral, direct workout costs, and an appropriate allocation of indirect workout costs). Where positive or negative cash flows on a wholesale exposure to a defaulted obligor or a defaulted retail exposure (including proceeds from the sale of collateral, workout costs, additional extensions of credit to facilitate repayment of the exposure, and drawdowns of unused credit lines) occur after the date of default, the economic loss must reflect the net present value of cash flows as of the default date using a discount rate appropriate to the risk of the defaulted exposure. Obligor means the legal entity or natural person contractually obligated on a wholesale exposure, except that an FDIC-supervised institution may treat the following exposures as having separate obligors: (1) Exposures to the same legal entity or natural person denominated in different currencies; (2)(i) An income-producing real estate exposure for which all or substantially all of the repayment of the exposure is reliant on the cash flows of the real estate serving as collateral for the exposure; the FDIC-supervised institution, in economic substance, does not have recourse to the borrower beyond the real estate collateral; and no cross-default or cross-acceleration clauses are in place other than clauses obtained solely out of an abundance of caution; and (ii) Other credit exposures to the same legal entity or natural person; and (3)(i) A wholesale exposure authorized under section 364 of the U.S. Bankruptcy Code (11 U.S.C. 364) to a legal entity or natural person who is a debtor-in-possession for purposes of Chapter 11 of the Bankruptcy Code; and (ii) Other credit exposures to the same legal entity or natural person. Operational loss means a loss (excluding insurance or tax effects) resulting from an operational loss event. Operational loss includes all expenses associated with an operational loss event except for opportunity costs, forgone revenue, and costs related to risk management and control enhancements implemented to prevent future operational losses. Operational loss event means an event that results in loss and is associated with any of the following seven operational loss event type categories: (1) Internal fraud, which means the operational loss event type category that comprises operational losses resulting PO 00000 Frm 00188 Fmt 4701 Sfmt 4700 from an act involving at least one internal party of a type intended to defraud, misappropriate property, or circumvent regulations, the law, or company policy excluding diversityand discrimination-type events. (2) External fraud, which means the operational loss event type category that comprises operational losses resulting from an act by a third party of a type intended to defraud, misappropriate property, or circumvent the law. Retail credit card losses arising from noncontractual, third-party-initiated fraud (for example, identity theft) are external fraud operational losses. All other thirdparty-initiated credit losses are to be treated as credit risk losses. (3) Employment practices and workplace safety, which means the operational loss event type category that comprises operational losses resulting from an act inconsistent with employment, health, or safety laws or agreements, payment of personal injury claims, or payment arising from diversity- and discrimination-type events. (4) Clients, products, and business practices, which means the operational loss event type category that comprises operational losses resulting from the nature or design of a product or from an unintentional or negligent failure to meet a professional obligation to specific clients (including fiduciary and suitability requirements). (5) Damage to physical assets, which means the operational loss event type category that comprises operational losses resulting from the loss of or damage to physical assets from natural disaster or other events. (6) Business disruption and system failures, which means the operational loss event type category that comprises operational losses resulting from disruption of business or system failures. (7) Execution, delivery, and process management, which means the operational loss event type category that comprises operational losses resulting from failed transaction processing or process management or losses arising from relations with trade counterparties and vendors. Operational risk means the risk of loss resulting from inadequate or failed internal processes, people, and systems or from external events (including legal risk but excluding strategic and reputational risk). Operational risk exposure means the 99.9th percentile of the distribution of potential aggregate operational losses, as generated by the FDIC-supervised institution’s operational risk quantification system over a one-year E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations horizon (and not incorporating eligible operational risk offsets or qualifying operational risk mitigants). Other retail exposure means an exposure (other than a securitization exposure, an equity exposure, a residential mortgage exposure, a presold construction loan, a qualifying revolving exposure, or the residual value portion of a lease exposure) that is managed as part of a segment of exposures with homogeneous risk characteristics, not on an individualexposure basis, and is either: (1) An exposure to an individual for non-business purposes; or (2) An exposure to an individual or company for business purposes if the FDIC-supervised institution’s consolidated business credit exposure to the individual or company is $1 million or less. Probability of default (PD) means: (1) For a wholesale exposure to a nondefaulted obligor, the FDIC-supervised institution’s empirically based best estimate of the long-run average oneyear default rate for the rating grade assigned by the FDIC-supervised institution to the obligor, capturing the average default experience for obligors in the rating grade over a mix of economic conditions (including economic downturn conditions) sufficient to provide a reasonable estimate of the average one-year default rate over the economic cycle for the rating grade. (2) For a segment of non-defaulted retail exposures, the FDIC-supervised institution’s empirically based best estimate of the long-run average oneyear default rate for the exposures in the segment, capturing the average default experience for exposures in the segment over a mix of economic conditions (including economic downturn conditions) sufficient to provide a reasonable estimate of the average oneyear default rate over the economic cycle for the segment. (3) For a wholesale exposure to a defaulted obligor or segment of defaulted retail exposures, 100 percent. Qualifying cross-product master netting agreement means a qualifying master netting agreement that provides for termination and close-out netting across multiple types of financial transactions or qualifying master netting agreements in the event of a counterparty’s default, provided that the underlying financial transactions are OTC derivative contracts, eligible margin loans, or repo-style transactions. In order to treat an agreement as a qualifying cross-product master netting agreement for purposes of this subpart, an FDIC-supervised institution must VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 comply with the requirements of § 324.3(c) of this part with respect to that agreement. Qualifying revolving exposure (QRE) means an exposure (other than a securitization exposure or equity exposure) to an individual that is managed as part of a segment of exposures with homogeneous risk characteristics, not on an individualexposure basis, and: (1) Is revolving (that is, the amount outstanding fluctuates, determined largely by a borrower’s decision to borrow and repay up to a preestablished maximum amount, except for an outstanding amount that the borrower is required to pay in full every month); (2) Is unsecured and unconditionally cancelable by the FDIC-supervised institution to the fullest extent permitted by Federal law; and (3)(i) Has a maximum contractual exposure amount (drawn plus undrawn) of up to $100,000; or (ii) With respect to a product with an outstanding amount that the borrower is required to pay in full every month, the total outstanding amount does not in practice exceed $100,000. (4) A segment of exposures that contains one or more exposures that fails to meet paragraph (3)(ii) of this definition must be treated as a segment of other retail exposures for the 24 month period following the month in which the total outstanding amount of one or more exposures individually exceeds $100,000. Retail exposure means a residential mortgage exposure, a qualifying revolving exposure, or an other retail exposure. Retail exposure subcategory means the residential mortgage exposure, qualifying revolving exposure, or other retail exposure subcategory. Risk parameter means a variable used in determining risk-based capital requirements for wholesale and retail exposures, specifically probability of default (PD), loss given default (LGD), exposure at default (EAD), or effective maturity (M). Scenario analysis means a systematic process of obtaining expert opinions from business managers and risk management experts to derive reasoned assessments of the likelihood and loss impact of plausible high-severity operational losses. Scenario analysis may include the well-reasoned evaluation and use of external operational loss event data, adjusted as appropriate to ensure relevance to an FDIC-supervised institution’s operational risk profile and control structure. PO 00000 Frm 00189 Fmt 4701 Sfmt 4700 55527 Total wholesale and retail riskweighted assets means the sum of: (1) Risk-weighted assets for wholesale exposures that are not IMM exposures, cleared transactions, or default fund contributions to non-defaulted obligors and segments of non-defaulted retail exposures; (2) Risk-weighted assets for wholesale exposures to defaulted obligors and segments of defaulted retail exposures; (3) Risk-weighted assets for assets not defined by an exposure category; (4) Risk-weighted assets for nonmaterial portfolios of exposures; (5) Risk-weighted assets for IMM exposures (as determined in § 324.132(d)); (6) Risk-weighted assets for cleared transactions and risk-weighted assets for default fund contributions (as determined in § 324.133); and (7) Risk-weighted assets for unsettled transactions (as determined in § 324.136). Unexpected operational loss (UOL) means the difference between the FDICsupervised institution’s operational risk exposure and the FDIC-supervised institution’s expected operational loss. Unit of measure means the level (for example, organizational unit or operational loss event type) at which the FDIC-supervised institution’s operational risk quantification system generates a separate distribution of potential operational losses. Wholesale exposure means a credit exposure to a company, natural person, sovereign, or governmental entity (other than a securitization exposure, retail exposure, pre-sold construction loan, or equity exposure). Wholesale exposure subcategory means the HVCRE or non-HVCRE wholesale exposure subcategory. §§ 324.102 through 324.120 [Reserved] Qualification § 324.121 Qualification process. (a) Timing. (1) An FDIC-supervised institution that is described in § 324.100(b)(1)(i) through (iv) must adopt a written implementation plan no later than six months after the date the FDIC-supervised institution meets a criterion in that section. The implementation plan must incorporate an explicit start date no later than 36 months after the date the FDICsupervised institution meets at least one criterion under § 324.100(b)(1)(i) through (iv). The FDIC may extend the start date. (2) An FDIC-supervised institution that elects to be subject to this subpart under § 324.100(b)(1)(v) must adopt a written implementation plan. E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55528 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (b) Implementation plan. (1) The FDIC-supervised institution’s implementation plan must address in detail how the FDIC-supervised institution complies, or plans to comply, with the qualification requirements in § 324.122. The FDICsupervised institution also must maintain a comprehensive and sound planning and governance process to oversee the implementation efforts described in the plan. At a minimum, the plan must: (i) Comprehensively address the qualification requirements in § 324.122 for the FDIC-supervised institution and each consolidated subsidiary (U.S. and foreign-based) of the FDIC-supervised institution with respect to all portfolios and exposures of the FDIC-supervised institution and each of its consolidated subsidiaries; (ii) Justify and support any proposed temporary or permanent exclusion of business lines, portfolios, or exposures from the application of the advanced approaches in this subpart (which business lines, portfolios, and exposures must be, in the aggregate, immaterial to the FDIC-supervised institution); (iii) Include the FDIC-supervised institution’s self-assessment of: (A) The FDIC-supervised institution’s current status in meeting the qualification requirements in § 324.122; and (B) The consistency of the FDICsupervised institution’s current practices with the FDIC’s supervisory guidance on the qualification requirements; (iv) Based on the FDIC-supervised institution’s self-assessment, identify and describe the areas in which the FDIC-supervised institution proposes to undertake additional work to comply with the qualification requirements in § 324.122 or to improve the consistency of the FDIC-supervised institution’s current practices with the FDIC’s supervisory guidance on the qualification requirements (gap analysis); (v) Describe what specific actions the FDIC-supervised institution will take to address the areas identified in the gap analysis required by paragraph (b)(1)(iv) of this section; (vi) Identify objective, measurable milestones, including delivery dates and a date when the FDIC-supervised institution’s implementation of the methodologies described in this subpart will be fully operational; (vii) Describe resources that have been budgeted and are available to implement the plan; and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (viii) Receive approval of the FDICsupervised institution’s board of directors. (2) The FDIC-supervised institution must submit the implementation plan, together with a copy of the minutes of the board of directors’ approval, to the FDIC at least 60 days before the FDICsupervised institution proposes to begin its parallel run, unless the FDIC waives prior notice. (c) Parallel run. Before determining its risk-weighted assets under this subpart and following adoption of the implementation plan, the FDICsupervised institution must conduct a satisfactory parallel run. A satisfactory parallel run is a period of no less than four consecutive calendar quarters during which the FDIC-supervised institution complies with the qualification requirements in § 324.122 to the satisfaction of the FDIC. During the parallel run, the FDIC-supervised institution must report to the FDIC on a calendar quarterly basis its risk-based capital ratios determined in accordance with § 324.10(b)(1) through (3) and § 324.10(c)(1) through (3). During this period, the FDIC-supervised institution’s minimum risk-based capital ratios are determined as set forth in subpart D of this part. (d) Approval to calculate risk-based capital requirements under this subpart. The FDIC will notify the FDICsupervised institution of the date that the FDIC-supervised institution must begin to use this subpart for purposes of § 324.10 if the FDIC determines that: (1) The FDIC-supervised institution fully complies with all the qualification requirements in § 324.122; (2) The FDIC-supervised institution has conducted a satisfactory parallel run under paragraph (c) of this section; and (3) The FDIC-supervised institution has an adequate process to ensure ongoing compliance with the qualification requirements in § 324.122. § 324.122 Qualification requirements. (a) Process and systems requirements. (1) An FDIC-supervised institution must have a rigorous process for assessing its overall capital adequacy in relation to its risk profile and a comprehensive strategy for maintaining an appropriate level of capital. (2) The systems and processes used by an FDIC-supervised institution for riskbased capital purposes under this subpart must be consistent with the FDIC-supervised institution’s internal risk management processes and management information reporting systems. (3) Each FDIC-supervised institution must have an appropriate infrastructure PO 00000 Frm 00190 Fmt 4701 Sfmt 4700 with risk measurement and management processes that meet the qualification requirements of this section and are appropriate given the FDIC-supervised institution’s size and level of complexity. Regardless of whether the systems and models that generate the risk parameters necessary for calculating an FDIC-supervised institution’s riskbased capital requirements are located at any affiliate of the FDIC-supervised institution, the FDIC-supervised institution itself must ensure that the risk parameters and reference data used to determine its risk-based capital requirements are representative of its own credit risk and operational risk exposures. (b) Risk rating and segmentation systems for wholesale and retail exposures. (1) An FDIC-supervised institution must have an internal risk rating and segmentation system that accurately and reliably differentiates among degrees of credit risk for the FDIC-supervised institution’s wholesale and retail exposures. (2) For wholesale exposures: (i) An FDIC-supervised institution must have an internal risk rating system that accurately and reliably assigns each obligor to a single rating grade (reflecting the obligor’s likelihood of default). An FDIC-supervised institution may elect, however, not to assign to a rating grade an obligor to whom the FDIC-supervised institution extends credit based solely on the financial strength of a guarantor, provided that all of the FDIC-supervised institution’s exposures to the obligor are fully covered by eligible guarantees, the FDIC-supervised institution applies the PD substitution approach in § 324.134(c)(1) to all exposures to that obligor, and the FDIC-supervised institution immediately assigns the obligor to a rating grade if a guarantee can no longer be recognized under this part. The FDIC-supervised institution’s wholesale obligor rating system must have at least seven discrete rating grades for non-defaulted obligors and at least one rating grade for defaulted obligors. (ii) Unless the FDIC-supervised institution has chosen to directly assign LGD estimates to each wholesale exposure, the FDIC-supervised institution must have an internal risk rating system that accurately and reliably assigns each wholesale exposure to a loss severity rating grade (reflecting the FDIC-supervised institution’s estimate of the LGD of the exposure). An FDIC-supervised institution employing loss severity rating grades must have a sufficiently granular loss severity grading system to E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations avoid grouping together exposures with widely ranging LGDs. (3) For retail exposures, an FDICsupervised institution must have an internal system that groups retail exposures into the appropriate retail exposure subcategory, groups the retail exposures in each retail exposure subcategory into separate segments with homogeneous risk characteristics, and assigns accurate and reliable PD and LGD estimates for each segment on a consistent basis. The FDIC-supervised institution’s system must identify and group in separate segments by subcategories exposures identified in § 324.131(c)(2)(ii) and (iii). (4) The FDIC-supervised institution’s internal risk rating policy for wholesale exposures must describe the FDICsupervised institution’s rating philosophy (that is, must describe how wholesale obligor rating assignments are affected by the FDIC-supervised institution’s choice of the range of economic, business, and industry conditions that are considered in the obligor rating process). (5) The FDIC-supervised institution’s internal risk rating system for wholesale exposures must provide for the review and update (as appropriate) of each obligor rating and (if applicable) each loss severity rating whenever the FDICsupervised institution receives new material information, but no less frequently than annually. The FDICsupervised institution’s retail exposure segmentation system must provide for the review and update (as appropriate) of assignments of retail exposures to segments whenever the FDIC-supervised institution receives new material information, but generally no less frequently than quarterly. (c) Quantification of risk parameters for wholesale and retail exposures. (1) The FDIC-supervised institution must have a comprehensive risk parameter quantification process that produces accurate, timely, and reliable estimates of the risk parameters for the FDICsupervised institution’s wholesale and retail exposures. (2) Data used to estimate the risk parameters must be relevant to the FDIC-supervised institution’s actual wholesale and retail exposures, and of sufficient quality to support the determination of risk-based capital requirements for the exposures. (3) The FDIC-supervised institution’s risk parameter quantification process must produce appropriately conservative risk parameter estimates where the FDIC-supervised institution has limited relevant data, and any adjustments that are part of the quantification process must not result in VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 a pattern of bias toward lower risk parameter estimates. (4) The FDIC-supervised institution’s risk parameter estimation process should not rely on the possibility of U.S. government financial assistance, except for the financial assistance that the U.S. government has a legally binding commitment to provide. (5) Where the FDIC-supervised institution’s quantifications of LGD directly or indirectly incorporate estimates of the effectiveness of its credit risk management practices in reducing its exposure to troubled obligors prior to default, the FDICsupervised institution must support such estimates with empirical analysis showing that the estimates are consistent with its historical experience in dealing with such exposures during economic downturn conditions. (6) PD estimates for wholesale obligors and retail segments must be based on at least five years of default data. LGD estimates for wholesale exposures must be based on at least seven years of loss severity data, and LGD estimates for retail segments must be based on at least five years of loss severity data. EAD estimates for wholesale exposures must be based on at least seven years of exposure amount data, and EAD estimates for retail segments must be based on at least five years of exposure amount data. (7) Default, loss severity, and exposure amount data must include periods of economic downturn conditions, or the FDIC-supervised institution must adjust its estimates of risk parameters to compensate for the lack of data from periods of economic downturn conditions. (8) The FDIC-supervised institution’s PD, LGD, and EAD estimates must be based on the definition of default in § 324.101. (9) The FDIC-supervised institution must review and update (as appropriate) its risk parameters and its risk parameter quantification process at least annually. (10) The FDIC-supervised institution must, at least annually, conduct a comprehensive review and analysis of reference data to determine relevance of reference data to the FDIC-supervised institution’s exposures, quality of reference data to support PD, LGD, and EAD estimates, and consistency of reference data to the definition of default in § 324.101. (d) Counterparty credit risk model. An FDIC-supervised institution must obtain the prior written approval of the FDIC under § 324.132 to use the internal models methodology for counterparty credit risk and the advanced CVA PO 00000 Frm 00191 Fmt 4701 Sfmt 4700 55529 approach for the CVA capital requirement. (e) Double default treatment. An FDIC-supervised institution must obtain the prior written approval of the FDIC under § 324.135 to use the double default treatment. (f) Equity exposures model. An FDICsupervised institution must obtain the prior written approval of the FDIC under § 324.153 to use the internal models approach for equity exposures. (g) Operational risk. (1) Operational risk management processes. An FDICsupervised institution must: (i) Have an operational risk management function that: (A) Is independent of business line management; and (B) Is responsible for designing, implementing, and overseeing the FDICsupervised institution’s operational risk data and assessment systems, operational risk quantification systems, and related processes; (ii) Have and document a process (which must capture business environment and internal control factors affecting the FDIC-supervised institution’s operational risk profile) to identify, measure, monitor, and control operational risk in the FDIC-supervised institution’s products, activities, processes, and systems; and (iii) Report operational risk exposures, operational loss events, and other relevant operational risk information to business unit management, senior management, and the board of directors (or a designated committee of the board). (2) Operational risk data and assessment systems. An FDICsupervised institution must have operational risk data and assessment systems that capture operational risks to which the FDIC-supervised institution is exposed. The FDIC-supervised institution’s operational risk data and assessment systems must: (i) Be structured in a manner consistent with the FDIC-supervised institution’s current business activities, risk profile, technological processes, and risk management processes; and (ii) Include credible, transparent, systematic, and verifiable processes that incorporate the following elements on an ongoing basis: (A) Internal operational loss event data. The FDIC-supervised institution must have a systematic process for capturing and using internal operational loss event data in its operational risk data and assessment systems. (1) The FDIC-supervised institution’s operational risk data and assessment systems must include a historical observation period of at least five years E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55530 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations for internal operational loss event data (or such shorter period approved by the FDIC to address transitional situations, such as integrating a new business line). (2) The FDIC-supervised institution must be able to map its internal operational loss event data into the seven operational loss event type categories. (3) The FDIC-supervised institution may refrain from collecting internal operational loss event data for individual operational losses below established dollar threshold amounts if the FDIC-supervised institution can demonstrate to the satisfaction of the FDIC that the thresholds are reasonable, do not exclude important internal operational loss event data, and permit the FDIC-supervised institution to capture substantially all the dollar value of the FDIC-supervised institution’s operational losses. (B) External operational loss event data. The FDIC-supervised institution must have a systematic process for determining its methodologies for incorporating external operational loss event data into its operational risk data and assessment systems. (C) Scenario analysis. The FDICsupervised institution must have a systematic process for determining its methodologies for incorporating scenario analysis into its operational risk data and assessment systems. (D) Business environment and internal control factors. The FDICsupervised institution must incorporate business environment and internal control factors into its operational risk data and assessment systems. The FDICsupervised institution must also periodically compare the results of its prior business environment and internal control factor assessments against its actual operational losses incurred in the intervening period. (3) Operational risk quantification systems. (i) The FDIC-supervised institution’s operational risk quantification systems: (A) Must generate estimates of the FDIC-supervised institution’s operational risk exposure using its operational risk data and assessment systems; (B) Must employ a unit of measure that is appropriate for the FDICsupervised institution’s range of business activities and the variety of operational loss events to which it is exposed, and that does not combine business activities or operational loss events with demonstrably different risk profiles within the same loss distribution; (C) Must include a credible, transparent, systematic, and verifiable VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 approach for weighting each of the four elements, described in paragraph (g)(2)(ii) of this section, that an FDICsupervised institution is required to incorporate into its operational risk data and assessment systems; (D) May use internal estimates of dependence among operational losses across and within units of measure if the FDIC-supervised institution can demonstrate to the satisfaction of the FDIC that its process for estimating dependence is sound, robust to a variety of scenarios, and implemented with integrity, and allows for uncertainty surrounding the estimates. If the FDICsupervised institution has not made such a demonstration, it must sum operational risk exposure estimates across units of measure to calculate its total operational risk exposure; and (E) Must be reviewed and updated (as appropriate) whenever the FDICsupervised institution becomes aware of information that may have a material effect on the FDIC-supervised institution’s estimate of operational risk exposure, but the review and update must occur no less frequently than annually. (ii) With the prior written approval of the FDIC, an FDIC-supervised institution may generate an estimate of its operational risk exposure using an alternative approach to that specified in paragraph (g)(3)(i) of this section. An FDIC-supervised institution proposing to use such an alternative operational risk quantification system must submit a proposal to the FDIC. In determining whether to approve an FDIC-supervised institution’s proposal to use an alternative operational risk quantification system, the FDIC will consider the following principles: (A) Use of the alternative operational risk quantification system will be allowed only on an exception basis, considering the size, complexity, and risk profile of the FDIC-supervised institution; (B) The FDIC-supervised institution must demonstrate that its estimate of its operational risk exposure generated under the alternative operational risk quantification system is appropriate and can be supported empirically; and (C) An FDIC-supervised institution must not use an allocation of operational risk capital requirements that includes entities other than depository institutions or the benefits of diversification across entities. (h) Data management and maintenance. (1) An FDIC-supervised institution must have data management and maintenance systems that adequately support all aspects of its advanced systems and the timely and PO 00000 Frm 00192 Fmt 4701 Sfmt 4700 accurate reporting of risk-based capital requirements. (2) An FDIC-supervised institution must retain data using an electronic format that allows timely retrieval of data for analysis, validation, reporting, and disclosure purposes. (3) An FDIC-supervised institution must retain sufficient data elements related to key risk drivers to permit adequate monitoring, validation, and refinement of its advanced systems. (i) Control, oversight, and validation mechanisms. (1) The FDIC-supervised institution’s senior management must ensure that all components of the FDICsupervised institution’s advanced systems function effectively and comply with the qualification requirements in this section. (2) The FDIC-supervised institution’s board of directors (or a designated committee of the board) must at least annually review the effectiveness of, and approve, the FDIC-supervised institution’s advanced systems. (3) An FDIC-supervised institution must have an effective system of controls and oversight that: (i) Ensures ongoing compliance with the qualification requirements in this section; (ii) Maintains the integrity, reliability, and accuracy of the FDIC-supervised institution’s advanced systems; and (iii) Includes adequate governance and project management processes. (4) The FDIC-supervised institution must validate, on an ongoing basis, its advanced systems. The FDIC-supervised institution’s validation process must be independent of the advanced systems’ development, implementation, and operation, or the validation process must be subjected to an independent review of its adequacy and effectiveness. Validation must include: (i) An evaluation of the conceptual soundness of (including developmental evidence supporting) the advanced systems; (ii) An ongoing monitoring process that includes verification of processes and benchmarking; and (iii) An outcomes analysis process that includes backtesting. (5) The FDIC-supervised institution must have an internal audit function independent of business-line management that at least annually assesses the effectiveness of the controls supporting the FDIC-supervised institution’s advanced systems and reports its findings to the FDICsupervised institution’s board of directors (or a committee thereof). (6) The FDIC-supervised institution must periodically stress test its advanced systems. The stress testing E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations must include a consideration of how economic cycles, especially downturns, affect risk-based capital requirements (including migration across rating grades and segments and the credit risk mitigation benefits of double default treatment). (j) Documentation. The FDICsupervised institution must adequately document all material aspects of its advanced systems. § 324.123 Ongoing qualification. (a) Changes to advanced systems. An FDIC-supervised institution must meet all the qualification requirements in § 324.122 on an ongoing basis. An FDICsupervised institution must notify the FDIC when the FDIC-supervised institution makes any change to an advanced system that would result in a material change in the FDIC-supervised institution’s advanced approaches total risk-weighted asset amount for an exposure type or when the FDICsupervised institution makes any significant change to its modeling assumptions. (b) Failure to comply with qualification requirements. (1) If the FDIC determines that an FDICsupervised institution that uses this subpart and that has conducted a satisfactory parallel run fails to comply with the qualification requirements in § 324.122, the FDIC will notify the FDIC-supervised institution in writing of the FDIC-supervised institution’s failure to comply. (2) The FDIC-supervised institution must establish and submit a plan satisfactory to the FDIC to return to compliance with the qualification requirements. (3) In addition, if the FDIC determines that the FDIC-supervised institution’s advanced approaches total riskweighted assets are not commensurate with the FDIC-supervised institution’s credit, market, operational, or other risks, the FDIC may require such an FDIC-supervised institution to calculate its advanced approaches total riskweighted assets with any modifications provided by the FDIC. emcdonald on DSK67QTVN1PROD with RULES2 § 324.124 Merger and acquisition transitional arrangements. (a) Mergers and acquisitions of companies without advanced systems. If an FDIC-supervised institution merges with or acquires a company that does not calculate its risk-based capital requirements using advanced systems, the FDIC-supervised institution may use subpart D of this part to determine the risk-weighted asset amounts for the merged or acquired company’s exposures for up to 24 months after the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 calendar quarter during which the merger or acquisition consummates. The FDIC may extend this transition period for up to an additional 12 months. Within 90 days of consummating the merger or acquisition, the FDICsupervised institution must submit to the FDIC an implementation plan for using its advanced systems for the acquired company. During the period in which subpart D of this part applies to the merged or acquired company, any ALLL, net of allocated transfer risk reserves established pursuant to 12 U.S.C. 3904, associated with the merged or acquired company’s exposures may be included in the acquiring FDICsupervised institution’s tier 2 capital up to 1.25 percent of the acquired company’s risk-weighted assets. All general allowances of the merged or acquired company must be excluded from the FDIC-supervised institution’s eligible credit reserves. In addition, the risk-weighted assets of the merged or acquired company are not included in the FDIC-supervised institution’s creditrisk-weighted assets but are included in total risk-weighted assets. If an FDICsupervised institution relies on this paragraph, the FDIC-supervised institution must disclose publicly the amounts of risk-weighted assets and qualifying capital calculated under this subpart for the acquiring FDICsupervised institution and under subpart D of this part for the acquired company. (b) Mergers and acquisitions of companies with advanced systems. (1) If an FDIC-supervised institution merges with or acquires a company that calculates its risk-based capital requirements using advanced systems, the FDIC-supervised institution may use the acquired company’s advanced systems to determine total risk-weighted assets for the merged or acquired company’s exposures for up to 24 months after the calendar quarter during which the acquisition or merger consummates. The FDIC may extend this transition period for up to an additional 12 months. Within 90 days of consummating the merger or acquisition, the FDIC-supervised institution must submit to the FDIC an implementation plan for using its advanced systems for the merged or acquired company. (2) If the acquiring FDIC-supervised institution is not subject to the advanced approaches in this subpart at the time of acquisition or merger, during the period when subpart D of this part applies to the acquiring FDICsupervised institution, the ALLL associated with the exposures of the merged or acquired company may not PO 00000 Frm 00193 Fmt 4701 Sfmt 4700 55531 be directly included in tier 2 capital. Rather, any excess eligible credit reserves associated with the merged or acquired company’s exposures may be included in the FDIC-supervised institution’s tier 2 capital up to 0.6 percent of the credit-risk-weighted assets associated with those exposures. §§ 324.125 through 324.130 [Reserved] Risk-Weighted Assets for General Credit Risk § 324.131 Mechanics for calculating total wholesale and retail risk-weighted assets. (a) Overview. An FDIC-supervised institution must calculate its total wholesale and retail risk-weighted asset amount in four distinct phases: (1) Phase 1—categorization of exposures; (2) Phase 2—assignment of wholesale obligors and exposures to rating grades and segmentation of retail exposures; (3) Phase 3—assignment of risk parameters to wholesale exposures and segments of retail exposures; and (4) Phase 4—calculation of riskweighted asset amounts. (b) Phase 1—Categorization. The FDIC-supervised institution must determine which of its exposures are wholesale exposures, retail exposures, securitization exposures, or equity exposures. The FDIC-supervised institution must categorize each retail exposure as a residential mortgage exposure, a QRE, or an other retail exposure. The FDIC-supervised institution must identify which wholesale exposures are HVCRE exposures, sovereign exposures, OTC derivative contracts, repo-style transactions, eligible margin loans, eligible purchased wholesale exposures, cleared transactions, default fund contributions, unsettled transactions to which § 324.136 applies, and eligible guarantees or eligible credit derivatives that are used as credit risk mitigants. The FDIC-supervised institution must identify any on-balance sheet asset that does not meet the definition of a wholesale, retail, equity, or securitization exposure, as well as any non-material portfolio of exposures described in paragraph (e)(4) of this section. (c) Phase 2—Assignment of wholesale obligors and exposures to rating grades and retail exposures to segments—(1) Assignment of wholesale obligors and exposures to rating grades. (i) The FDIC-supervised institution must assign each obligor of a wholesale exposure to a single obligor rating grade and must assign each wholesale exposure to which it does not directly E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55532 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations assign an LGD estimate to a loss severity rating grade. (ii) The FDIC-supervised institution must identify which of its wholesale obligors are in default. (2) Segmentation of retail exposures. (i) The FDIC-supervised institution must group the retail exposures in each retail subcategory into segments that have homogeneous risk characteristics. (ii) The FDIC-supervised institution must identify which of its retail exposures are in default. The FDICsupervised institution must segment defaulted retail exposures separately from non-defaulted retail exposures. (iii) If the FDIC-supervised institution determines the EAD for eligible margin loans using the approach in § 324.132(b), the FDIC-supervised institution must identify which of its retail exposures are eligible margin loans for which the FDIC-supervised institution uses this EAD approach and must segment such eligible margin loans separately from other retail exposures. (3) Eligible purchased wholesale exposures. An FDIC-supervised institution may group its eligible purchased wholesale exposures into segments that have homogeneous risk characteristics. An FDIC-supervised institution must use the wholesale exposure formula in Table 1 of this section to determine the risk-based capital requirement for each segment of eligible purchased wholesale exposures. (d) Phase 3—Assignment of risk parameters to wholesale exposures and segments of retail exposures. (1) Quantification process. Subject to the limitations in this paragraph (d), the FDIC-supervised institution must: (i) Associate a PD with each wholesale obligor rating grade; (ii) Associate an LGD with each wholesale loss severity rating grade or assign an LGD to each wholesale exposure; (iii) Assign an EAD and M to each wholesale exposure; and (iv) Assign a PD, LGD, and EAD to each segment of retail exposures. (2) Floor on PD assignment. The PD for each wholesale obligor or retail segment may not be less than 0.03 percent, except for exposures to or directly and unconditionally guaranteed by a sovereign entity, the Bank for International Settlements, the International Monetary Fund, the European Commission, the European Central Bank, or a multilateral development bank, to which the FDICsupervised institution assigns a rating grade associated with a PD of less than 0.03 percent. (3) Floor on LGD estimation. The LGD for each segment of residential mortgage VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 exposures may not be less than 10 percent, except for segments of residential mortgage exposures for which all or substantially all of the principal of each exposure is either: (i) Directly and unconditionally guaranteed by the full faith and credit of a sovereign entity; or (ii) Guaranteed by a contingent obligation of the U.S. government or its agencies, the enforceability of which is dependent upon some affirmative action on the part of the beneficiary of the guarantee or a third party (for example, meeting servicing requirements). (4) Eligible purchased wholesale exposures. An FDIC-supervised institution must assign a PD, LGD, EAD, and M to each segment of eligible purchased wholesale exposures. If the FDIC-supervised institution can estimate ECL (but not PD or LGD) for a segment of eligible purchased wholesale exposures, the FDIC-supervised institution must assume that the LGD of the segment equals 100 percent and that the PD of the segment equals ECL divided by EAD. The estimated ECL must be calculated for the exposures without regard to any assumption of recourse or guarantees from the seller or other parties. (5) Credit risk mitigation: credit derivatives, guarantees, and collateral. (i) An FDIC-supervised institution may take into account the risk reducing effects of eligible guarantees and eligible credit derivatives in support of a wholesale exposure by applying the PD substitution or LGD adjustment treatment to the exposure as provided in § 324.134 or, if applicable, applying double default treatment to the exposure as provided in § 324.135. An FDICsupervised institution may decide separately for each wholesale exposure that qualifies for the double default treatment under § 324.135 whether to apply the double default treatment or to use the PD substitution or LGD adjustment treatment without recognizing double default effects. (ii) An FDIC-supervised institution may take into account the risk reducing effects of guarantees and credit derivatives in support of retail exposures in a segment when quantifying the PD and LGD of the segment. (iii) Except as provided in paragraph (d)(6) of this section, an FDICsupervised institution may take into account the risk reducing effects of collateral in support of a wholesale exposure when quantifying the LGD of the exposure, and may take into account the risk reducing effects of collateral in support of retail exposures when PO 00000 Frm 00194 Fmt 4701 Sfmt 4700 quantifying the PD and LGD of the segment. (6) EAD for OTC derivative contracts, repo-style transactions, and eligible margin loans. An FDIC-supervised institution must calculate its EAD for an OTC derivative contract as provided in § 324.132 (c) and (d). An FDICsupervised institution may take into account the risk-reducing effects of financial collateral in support of a repostyle transaction or eligible margin loan and of any collateral in support of a repo-style transaction that is included in the FDIC-supervised institution’s VaRbased measure under subpart F of this part through an adjustment to EAD as provided in § 324.132(b) and (d). An FDIC-supervised institution that takes collateral into account through such an adjustment to EAD under § 324.132 may not reflect such collateral in LGD. (7) Effective maturity. An exposure’s M must be no greater than five years and no less than one year, except that an exposure’s M must be no less than one day if the exposure is a trade related letter of credit, or if the exposure has an original maturity of less than one year and is not part of an FDIC-supervised institution’s ongoing financing of the obligor. An exposure is not part of an FDIC-supervised institution’s ongoing financing of the obligor if the FDICsupervised institution: (i) Has a legal and practical ability not to renew or roll over the exposure in the event of credit deterioration of the obligor; (ii) Makes an independent credit decision at the inception of the exposure and at every renewal or roll over; and (iii) Has no substantial commercial incentive to continue its credit relationship with the obligor in the event of credit deterioration of the obligor. (8) EAD for exposures to certain central counterparties. An FDICsupervised institution may attribute an EAD of zero to exposures that arise from the settlement of cash transactions (such as equities, fixed income, spot foreign exchange, and spot commodities) with a central counterparty where there is no assumption of ongoing counterparty credit risk by the central counterparty after settlement of the trade and associated default fund contributions. (e) Phase 4—Calculation of riskweighted assets. (1) Non-defaulted exposures. (i) An FDIC-supervised institution must calculate the dollar risk-based capital requirement for each of its wholesale exposures to a non-defaulted obligor (except for eligible guarantees and eligible credit derivatives that E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 hedge another wholesale exposure, IMM exposures, cleared transactions, default fund contributions, unsettled transactions, and exposures to which the FDIC-supervised institution applies the double default treatment in § 324.135) and segments of nondefaulted retail exposures by inserting VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the assigned risk parameters for the wholesale obligor and exposure or retail segment into the appropriate risk-based capital formula specified in Table 1 to § 324.131 and multiplying the output of the formula (K) by the EAD of the exposure or segment. Alternatively, an FDIC-supervised institution may apply a PO 00000 Frm 00195 Fmt 4701 Sfmt 4700 55533 300 percent risk weight to the EAD of an eligible margin loan if the FDICsupervised institution is not able to meet the FDIC’s requirements for estimation of PD and LGD for the margin loan. E:\FR\FM\10SER2.SGM 10SER2 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00196 Fmt 4701 Sfmt 4725 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.024</GPH> emcdonald on DSK67QTVN1PROD with RULES2 55534 emcdonald on DSK67QTVN1PROD with RULES2 BILLING CODE 6714–01–P (ii) The sum of all the dollar riskbased capital requirements for each wholesale exposure to a non-defaulted obligor and segment of non-defaulted retail exposures calculated in paragraph (e)(1)(i) of this section and in § 324.135(e) equals the total dollar riskbased capital requirement for those exposures and segments. (iii) The aggregate risk-weighted asset amount for wholesale exposures to nondefaulted obligors and segments of nondefaulted retail exposures equals the total dollar risk-based capital requirement in paragraph (e)(1)(ii) of this section multiplied by 12.5. (2) Wholesale exposures to defaulted obligors and segments of defaulted retail exposures—(i) Not covered by an eligible U.S. government guarantee: The VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 dollar risk-based capital requirement for each wholesale exposure not covered by an eligible guarantee from the U.S. government to a defaulted obligor and each segment of defaulted retail exposures not covered by an eligible guarantee from the U.S. government equals 0.08 multiplied by the EAD of the exposure or segment. (ii) Covered by an eligible U.S. government guarantee: The dollar riskbased capital requirement for each wholesale exposure to a defaulted obligor covered by an eligible guarantee from the U.S. government and each segment of defaulted retail exposures covered by an eligible guarantee from the U.S. government equals the sum of: (A) The sum of the EAD of the portion of each wholesale exposure to a PO 00000 Frm 00197 Fmt 4701 Sfmt 4700 55535 defaulted obligor covered by an eligible guarantee from the U.S. government plus the EAD of the portion of each segment of defaulted retail exposures that is covered by an eligible guarantee from the U.S. government and the resulting sum is multiplied by 0.016, and (B) The sum of the EAD of the portion of each wholesale exposure to a defaulted obligor not covered by an eligible guarantee from the U.S. government plus the EAD of the portion of each segment of defaulted retail exposures that is not covered by an eligible guarantee from the U.S. government and the resulting sum is multiplied by 0.08. (iii) The sum of all the dollar riskbased capital requirements for each E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.025</GPH> Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 55536 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations wholesale exposure to a defaulted obligor and each segment of defaulted retail exposures calculated in paragraph (e)(2)(i) of this section plus the dollar risk-based capital requirements each wholesale exposure to a defaulted obligor and for each segment of defaulted retail exposures calculated in paragraph (e)(2)(ii) of this section equals the total dollar risk-based capital requirement for those exposures and segments. (iv) The aggregate risk-weighted asset amount for wholesale exposures to defaulted obligors and segments of defaulted retail exposures equals the total dollar risk-based capital requirement calculated in paragraph (e)(2)(iii) of this section multiplied by 12.5. (3) Assets not included in a defined exposure category. (i) An FDICsupervised institution may assign a riskweighted asset amount of zero to cash owned and held in all offices of the FDIC-supervised institution or in transit and for gold bullion held in the FDICsupervised institution’s own vaults, or held in another depository institution’s vaults on an allocated basis, to the extent the gold bullion assets are offset by gold bullion liabilities. (ii) An FDIC-supervised institution must assign a risk-weighted asset amount equal to 20 percent of the carrying value of cash items in the process of collection. (iii) An FDIC-supervised institution must assign a risk-weighted asset amount equal to 50 percent of the carrying value to a pre-sold construction loan unless the purchase contract is cancelled, in which case an FDICsupervised institution must assign a risk-weighted asset amount equal to a 100 percent of the carrying value of the pre-sold construction loan. (iv) The risk-weighted asset amount for the residual value of a retail lease exposure equals such residual value. (v) The risk-weighted asset amount for DTAs arising from temporary differences that the FDIC-supervised institution could realize through net operating loss carrybacks equals the carrying value, netted in accordance with § 324.22. (vi) The risk-weighted asset amount for MSAs, DTAs arising from temporary timing differences that the FDICsupervised institution could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock that are not deducted pursuant to § 324.22(a)(7) equals the amount not subject to deduction multiplied by 250 percent. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (vii) The risk-weighted asset amount for any other on-balance-sheet asset that does not meet the definition of a wholesale, retail, securitization, IMM, or equity exposure, cleared transaction, or default fund contribution and is not subject to deduction under § 324.22(a), (c), or (d) equals the carrying value of the asset. (4) Non-material portfolios of exposures. The risk-weighted asset amount of a portfolio of exposures for which the FDIC-supervised institution has demonstrated to the FDIC’s satisfaction that the portfolio (when combined with all other portfolios of exposures that the FDIC-supervised institution seeks to treat under this paragraph) is not material to the FDICsupervised institution is the sum of the carrying values of on-balance sheet exposures plus the notional amounts of off-balance sheet exposures in the portfolio. For purposes of this paragraph (e)(4), the notional amount of an OTC derivative contract that is not a credit derivative is the EAD of the derivative as calculated in § 324.132. § 324.132 Counterparty credit risk of repostyle transactions, eligible margin loans, and OTC derivative contracts. (a) Methodologies for collateral recognition. (1) Instead of an LGD estimation methodology, an FDICsupervised institution may use the following methodologies to recognize the benefits of financial collateral in mitigating the counterparty credit risk of repo-style transactions, eligible margin loans, collateralized OTC derivative contracts and single product netting sets of such transactions, and to recognize the benefits of any collateral in mitigating the counterparty credit risk of repo-style transactions that are included in an FDIC-supervised institution’s VaRbased measure under subpart F of this part: (i) The collateral haircut approach set forth in paragraph (b)(2) of this section; (ii) The internal models methodology set forth in paragraph (d) of this section; and (iii) For single product netting sets of repo-style transactions and eligible margin loans, the simple VaR methodology set forth in paragraph (b)(3) of this section. (2) An FDIC-supervised institution may use any combination of the three methodologies for collateral recognition; however, it must use the same methodology for transactions in the same category. (3) An FDIC-supervised institution must use the methodology in paragraph (c) of this section, or with prior written approval of the FDIC, the internal model PO 00000 Frm 00198 Fmt 4701 Sfmt 4700 methodology in paragraph (d) of this section, to calculate EAD for an OTC derivative contract or a set of OTC derivative contracts subject to a qualifying master netting agreement. To estimate EAD for qualifying crossproduct master netting agreements, an FDIC-supervised institution may only use the internal models methodology in paragraph (d) of this section. (4) An FDIC-supervised institution must also use the methodology in paragraph (e) of this section to calculate the risk-weighted asset amounts for CVA for OTC derivatives. (b) EAD for eligible margin loans and repo-style transactions. (1) General. An FDIC-supervised institution may recognize the credit risk mitigation benefits of financial collateral that secures an eligible margin loan, repostyle transaction, or single-product netting set of such transactions by factoring the collateral into its LGD estimates for the exposure. Alternatively, an FDIC-supervised institution may estimate an unsecured LGD for the exposure, as well as for any repo-style transaction that is included in the FDIC-supervised institution’s VaRbased measure under subpart F of this part, and determine the EAD of the exposure using: (i) The collateral haircut approach described in paragraph (b)(2) of this section; (ii) For netting sets only, the simple VaR methodology described in paragraph (b)(3) of this section; or (iii) The internal models methodology described in paragraph (d) of this section. (2) Collateral haircut approach—(i) EAD equation. An FDIC-supervised institution may determine EAD for an eligible margin loan, repo-style transaction, or netting set by setting EAD equal to max {0, [(SE¥SC) + S(Es × Hs) + S(Efx × Hfx)]}, where: (A) SE equals the value of the exposure (the sum of the current fair values of all instruments, gold, and cash the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty under the transaction (or netting set)); (B) SC equals the value of the collateral (the sum of the current fair values of all instruments, gold, and cash the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the transaction (or netting set)); (C) Es equals the absolute value of the net position in a given instrument or in gold (where the net position in a given instrument or in gold equals the sum of the current fair values of the instrument E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations or gold the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current fair values of that same instrument or gold the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty); (D) Hs equals the market price volatility haircut appropriate to the instrument or gold referenced in Es; (E) Efx equals the absolute value of the net position of instruments and cash in a currency that is different from the settlement currency (where the net position in a given currency equals the sum of the current fair values of any instruments or cash in the currency the FDIC-supervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty minus the sum of the current fair values of any instruments or cash in the currency the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty); and 55537 (F) Hfx equals the haircut appropriate to the mismatch between the currency referenced in Efx and the settlement currency. (ii) Standard supervisory haircuts. (A) Under the standard supervisory haircuts approach: (1) An FDIC-supervised institution must use the haircuts for market price volatility (Hs) in Table 1 to § 324.132, as adjusted in certain circumstances as provided in paragraphs (b)(2)(ii)(A)(3) and (4) of this section; TABLE 1 TO § 324.132—STANDARD SUPERVISORY MARKET PRICE VOLATILITY HAIRCUTS 1 Haircut (in percent) assigned based on: Sovereign issuers risk weight under this section 2 (in percent) Residual maturity Zero Less than or equal to 1 year ..................... Greater than 1 year and less than or equal to 5 years ..................................... Greater than 5 years .................................. 20 or 50 100 Non-sovereign issuers risk weight under this section (in percent) 20 50 Investment grade securitization exposures (in percent) 100 0.5 1.0 15.0 1.0 2.0 4.0 4.0 2.0 4.0 3.0 6.0 15.0 15.0 4.0 8.0 6.0 12.0 8.0 16.0 12.0 24.0 Main index equities (including convertible bonds) and gold ....................................... 15.0 Other publicly traded equities (including convertible bonds) ....................................... Mutual funds ................................................................................................................ 25.0 Highest haircut applicable to any security in which the fund can invest. Zero 25.0 Cash collateral held ..................................................................................................... Other exposure types .................................................................................................. 1 The market price volatility haircuts in Table 1 to § 324.132 are based on a 10 business-day holding period. a foreign PSE that receives a zero percent risk weight. (2) For currency mismatches, an FDIC-supervised institution must use a haircut for foreign exchange rate volatility (Hfx) of 8 percent, as adjusted in certain circumstances as provided in paragraphs (b)(2)(ii)(A)(3) and (4) of this section. (3) For repo-style transactions, an FDIC-supervised institution may multiply the supervisory haircuts provided in paragraphs (b)(2)(ii)(A)(1) and (2) of this section by the square root of 1⁄2 (which equals 0.707107). (4) An FDIC-supervised institution must adjust the supervisory haircuts upward on the basis of a holding period longer than ten business days (for eligible margin loans) or five business days (for repo-style transactions) where the following conditions apply. If the number of trades in a netting set exceeds 5,000 at any time during a quarter, an FDIC-supervised institution must adjust the supervisory haircuts upward on the basis of a holding period of twenty business days for the following quarter (except when an FDIC-supervised institution is calculating EAD for a cleared transaction under § 324.133). If a netting VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 set contains one or more trades involving illiquid collateral or an OTC derivative that cannot be easily replaced, an FDIC-supervised institution must adjust the supervisory haircuts upward on the basis of a holding period of twenty business days. If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the holding period, then the FDIC-supervised institution must adjust the supervisory haircuts upward for that netting set on the basis of a holding period that is at least two times the minimum holding period for that netting set. An FDICsupervised institution must adjust the standard supervisory haircuts upward using the following formula: (i) TM equals a holding period of longer than 10 business days for eligible margin loans and derivative contracts or longer than 5 business days for repo-style transactions; (ii) Hs equals the standard supervisory haircut; and PO 00000 Frm 00199 Fmt 4701 Sfmt 4700 (iii) Ts equals 10 business days for eligible margin loans and derivative contracts or 5 business days for repo-style transactions. (5) If the instrument an FDICsupervised institution has lent, sold subject to repurchase, or posted as collateral does not meet the definition of financial collateral, the FDIC-supervised institution must use a 25.0 percent haircut for market price volatility (Hs). (iii) Own internal estimates for haircuts. With the prior written approval of the FDIC, an FDICsupervised institution may calculate haircuts (Hs and Hfx) using its own internal estimates of the volatilities of market prices and foreign exchange rates. (A) To receive FDIC approval to use its own internal estimates, an FDICsupervised institution must satisfy the following minimum quantitative standards: (1) An FDIC-supervised institution must use a 99th percentile one-tailed confidence interval. (2) The minimum holding period for a repo-style transaction is five business days and for an eligible margin loan is E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.026</GPH> emcdonald on DSK67QTVN1PROD with RULES2 2 Includes Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations ten business days except for transactions or netting sets for which paragraph (b)(2)(iii)(A)(3) of this section applies. When an FDIC-supervised institution calculates an own-estimates haircut on a TN-day holding period, which is different from the minimum holding period for the transaction type, the applicable haircut (HM) is calculated using the following square root of time formula: emcdonald on DSK67QTVN1PROD with RULES2 (i) TM equals 5 for repo-style transactions and 10 for eligible margin loans; (ii) TN equals the holding period used by the FDIC-supervised institution to derive HN; and (iii) HN equals the haircut based on the holding period TN. (3) If the number of trades in a netting set exceeds 5,000 at any time during a quarter, an FDIC-supervised institution must calculate the haircut using a minimum holding period of twenty business days for the following quarter (except when an FDIC-supervised institution is calculating EAD for a cleared transaction under § 324.133). If a netting set contains one or more trades involving illiquid collateral or an OTC derivative that cannot be easily replaced, an FDIC-supervised institution must calculate the haircut using a minimum holding period of twenty business days. If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the holding period, then the FDIC-supervised institution must calculate the haircut for transactions in that netting set on the basis of a holding period that is at least two times the minimum holding period for that netting set. (4) An FDIC-supervised institution is required to calculate its own internal estimates with inputs calibrated to historical data from a continuous 12month period that reflects a period of significant financial stress appropriate to the security or category of securities. (5) An FDIC-supervised institution must have policies and procedures that describe how it determines the period of significant financial stress used to calculate the FDIC-supervised institution’s own internal estimates for haircuts under this section and must be able to provide empirical support for the period used. The FDIC-supervised institution must obtain the prior approval of the FDIC for, and notify the FDIC if the FDIC-supervised institution makes any material changes to, these policies and procedures. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (6) Nothing in this section prevents the FDIC from requiring an FDICsupervised institution to use a different period of significant financial stress in the calculation of own internal estimates for haircuts. (7) An FDIC-supervised institution must update its data sets and calculate haircuts no less frequently than quarterly and must also reassess data sets and haircuts whenever market prices change materially. (B) With respect to debt securities that are investment grade, an FDICsupervised institution may calculate haircuts for categories of securities. For a category of securities, the FDICsupervised institution must calculate the haircut on the basis of internal volatility estimates for securities in that category that are representative of the securities in that category that the FDICsupervised institution has lent, sold subject to repurchase, posted as collateral, borrowed, purchased subject to resale, or taken as collateral. In determining relevant categories, the FDIC-supervised institution must at a minimum take into account: (1) The type of issuer of the security; (2) The credit quality of the security; (3) The maturity of the security; and (4) The interest rate sensitivity of the security. (C) With respect to debt securities that are not investment grade and equity securities, an FDIC-supervised institution must calculate a separate haircut for each individual security. (D) Where an exposure or collateral (whether in the form of cash or securities) is denominated in a currency that differs from the settlement currency, the FDIC-supervised institution must calculate a separate currency mismatch haircut for its net position in each mismatched currency based on estimated volatilities of foreign exchange rates between the mismatched currency and the settlement currency. (E) An FDIC-supervised institution’s own estimates of market price and foreign exchange rate volatilities may not take into account the correlations among securities and foreign exchange rates on either the exposure or collateral side of a transaction (or netting set) or the correlations among securities and foreign exchange rates between the exposure and collateral sides of the transaction (or netting set). (3) Simple VaR methodology. With the prior written approval of the FDIC, an FDIC-supervised institution may estimate EAD for a netting set using a VaR model that meets the requirements in paragraph (b)(3)(iii) of this section. In such event, the FDIC-supervised PO 00000 Frm 00200 Fmt 4701 Sfmt 4700 institution must set EAD equal to max {0, [(SE¥SC) + PFE]}, where: (i) SE equals the value of the exposure (the sum of the current fair values of all instruments, gold, and cash the FDICsupervised institution has lent, sold subject to repurchase, or posted as collateral to the counterparty under the netting set); (ii) SC equals the value of the collateral (the sum of the current fair values of all instruments, gold, and cash the FDIC-supervised institution has borrowed, purchased subject to resale, or taken as collateral from the counterparty under the netting set); and (iii) PFE (potential future exposure) equals the FDIC-supervised institution’s empirically based best estimate of the 99th percentile, one-tailed confidence interval for an increase in the value of (SE¥SC) over a five-business-day holding period for repo-style transactions, or over a ten-business-day holding period for eligible margin loans except for netting sets for which paragraph (b)(3)(iv) of this section applies using a minimum one-year historical observation period of price data representing the instruments that the FDIC-supervised institution has lent, sold subject to repurchase, posted as collateral, borrowed, purchased subject to resale, or taken as collateral. The FDIC-supervised institution must validate its VaR model by establishing and maintaining a rigorous and regular backtesting regime. (iv) If the number of trades in a netting set exceeds 5,000 at any time during a quarter, an FDIC-supervised institution must use a twenty-businessday holding period for the following quarter (except when an FDICsupervised institution is calculating EAD for a cleared transaction under § 324.133). If a netting set contains one or more trades involving illiquid collateral, an FDIC-supervised institution must use a twenty-businessday holding period. If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the holding period, then the FDIC-supervised institution must set its PFE for that netting set equal to an estimate over a holding period that is at least two times the minimum holding period for that netting set. (c) EAD for OTC derivative contracts. (1) OTC derivative contracts not subject to a qualifying master netting agreement. An FDIC-supervised institution must determine the EAD for an OTC derivative contract that is not subject to a qualifying master netting agreement using the current exposure methodology in paragraph (c)(5) of this E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.027</GPH> 55538 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations section or using the internal models methodology described in paragraph (d) of this section. (2) OTC derivative contracts subject to a qualifying master netting agreement. An FDIC-supervised institution must determine the EAD for multiple OTC derivative contracts that are subject to a qualifying master netting agreement using the current exposure methodology in paragraph (c)(6) of this section or using the internal models methodology described in paragraph (d) of this section. (3) Credit derivatives. Notwithstanding paragraphs (c)(1) and (c)(2) of this section: (i) An FDIC-supervised institution that purchases a credit derivative that is recognized under § 324.134 or § 324.135 as a credit risk mitigant for an exposure that is not a covered position under subpart F of this part is not required to calculate a separate counterparty credit risk capital requirement under this section so long as the FDIC-supervised institution does so consistently for all such credit derivatives and either includes or excludes all such credit derivatives that are subject to a master netting agreement from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes. (ii) An FDIC-supervised institution that is the protection provider in a credit derivative must treat the credit derivative as a wholesale exposure to the reference obligor and is not required to calculate a counterparty credit risk capital requirement for the credit derivative under this section, so long as it does so consistently for all such credit derivatives and either includes all or excludes all such credit derivatives that are subject to a master netting agreement from any measure used to determine counterparty credit risk exposure to all relevant counterparties for risk-based capital purposes (unless the FDICsupervised institution is treating the credit derivative as a covered position under subpart F of this part, in which case the FDIC-supervised institution must calculate a supplemental counterparty credit risk capital requirement under this section). (4) Equity derivatives. An FDICsupervised institution must treat an equity derivative contract as an equity exposure and compute a risk-weighted asset amount for the equity derivative contract under §§ 324.151–324.155 (unless the FDIC-supervised institution is treating the contract as a covered position under subpart F of this part). In addition, if the FDIC-supervised institution is treating the contract as a covered position under subpart F of this part, and under certain other circumstances described in § 324.155, the FDIC-supervised institution must also calculate a risk-based capital requirement for the counterparty credit risk of an equity derivative contract under this section. (5) Single OTC derivative contract. Except as modified by paragraph (c)(7) of this section, the EAD for a single OTC derivative contract that is not subject to a qualifying master netting agreement is equal to the sum of the FDIC-supervised institution’s current credit exposure and 55539 potential future credit exposure (PFE) on the derivative contract. (i) Current credit exposure. The current credit exposure for a single OTC derivative contract is the greater of the mark-to-fair value of the derivative contract or zero; and (ii) PFE. The PFE for a single OTC derivative contract, including an OTC derivative contract with a negative mark-to-fair value, is calculated by multiplying the notional principal amount of the derivative contract by the appropriate conversion factor in Table 2 to § 324.132. For purposes of calculating either the PFE under paragraph (c)(5) of this section or the gross PFE under paragraph (c)(6) of this section for exchange rate contracts and other similar contracts in which the notional principal amount is equivalent to the cash flows, the notional principal amount is the net receipts to each party falling due on each value date in each currency. For any OTC derivative contract that does not fall within one of the specified categories in Table 2 to § 324.132, the PFE must be calculated using the ‘‘other’’ conversion factors. An FDIC-supervised institution must use an OTC derivative contract’s effective notional principal amount (that is, its apparent or stated notional principal amount multiplied by any multiplier in the OTC derivative contract) rather than its apparent or stated notional principal amount in calculating PFE. PFE of the protection provider of a credit derivative is capped at the net present value of the amount of unpaid premiums. TABLE 2 TO § 324.132—CONVERSION FACTOR MATRIX FOR OTC DERIVATIVE CONTRACTS 1 Interest rate Remaining maturity 2 One year or less .................................. Over one to five years ......................... Over five years ..................................... Foreign exchange rate and gold Credit (investment-grade reference asset) 3 Credit (non-investmentgrade reference asset) 0.01 0.05 0.075 0.05 0.05 0.05 0.10 0.10 0.10 0.00 0.005 0.015 Equity 0.06 0.08 0.10 Precious metals (except gold) 0.07 0.07 0.08 Other 0.10 0.12 0.15 emcdonald on DSK67QTVN1PROD with RULES2 1 For an OTC derivative contract with multiple exchanges of principal, the conversion factor is multiplied by the number of remaining payments in the derivative contract. 2 For an OTC derivative contract that is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that the fair value of the contract is zero, the remaining maturity equals the time until the next reset date. For an interest rate derivative contract with a remaining maturity of greater than one year that meets these criteria, the minimum conversion factor is 0.005. 3 An FDIC-supervised institution must use the column labeled ‘‘Credit (investment-grade reference asset)’’ for a credit derivative whose reference asset is an outstanding unsecured long-term debt security without credit enhancement that is investment grade. An FDIC-supervised institution must use the column labeled ‘‘Credit (non-investment-grade reference asset)’’ for all other credit derivatives. (6) Multiple OTC derivative contracts subject to a qualifying master netting agreement. Except as modified by paragraph (c)(7) of this section, the EAD for multiple OTC derivative contracts subject to a qualifying master netting agreement is equal to the sum of the net current credit exposure and the adjusted VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 sum of the PFE exposure for all OTC derivative contracts subject to the qualifying master netting agreement. (i) Net current credit exposure. The net current credit exposure is the greater of: (A) The net sum of all positive and negative fair values of the individual PO 00000 Frm 00201 Fmt 4701 Sfmt 4700 OTC derivative contracts subject to the qualifying master netting agreement; or (B) Zero; and (ii) Adjusted sum of the PFE. The adjusted sum of the PFE, Anet, is calculated as Anet = (0.4 × Agross) + (0.6 × NGR × Agross), where: E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (that is, effective EPE is the timeweighted average of effective EE where the weights are the proportion that an VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 QCCP on the performance of the client equals the exposure amount calculated according to paragraph (c)(5) or (6) of this section multiplied by the scaling factor 0.71. If the FDIC-supervised institution determines that a longer period is appropriate, it must use a larger scaling factor to adjust for a longer holding period as follows: where H equals the holding period greater than five days. Additionally, the FDIC may require the FDIC-supervised institution to set a longer holding period if the FDIC determines that a longer period is appropriate due to the nature, structure, or characteristics of the transaction or is commensurate with the risks associated with the transaction. (d) Internal models methodology. (1)(i) With prior written approval from the FDIC, an FDIC-supervised institution may use the internal models methodology in this paragraph (d) to determine EAD for counterparty credit risk for derivative contracts (collateralized or uncollateralized) and single-product netting sets thereof, for eligible margin loans and single-product netting sets thereof, and for repo-style transactions and single-product netting sets thereof. (ii) An FDIC-supervised institution that uses the internal models methodology for a particular transaction type (derivative contracts, eligible margin loans, or repo-style transactions) must use the internal models methodology for all transactions of that transaction type. An FDIC-supervised institution may choose to use the internal models methodology for one or two of these three types of exposures and not the other types. (iii) An FDIC-supervised institution may also use the internal models methodology for derivative contracts, eligible margin loans, and repo-style transactions subject to a qualifying cross-product netting agreement if: (A) The FDIC-supervised institution effectively integrates the risk mitigating effects of cross-product netting into its risk management and other information technology systems; and individual effective EE represents in a one-year time interval) where: PO 00000 Frm 00202 Fmt 4701 Sfmt 4700 (B) The FDIC-supervised institution obtains the prior written approval of the FDIC. (iv) An FDIC-supervised institution that uses the internal models methodology for a transaction type must receive approval from the FDIC to cease using the methodology for that transaction type or to make a material change to its internal model. (2) Risk-weighted assets using IMM. Under the IMM, an FDIC-supervised institution uses an internal model to estimate the expected exposure (EE) for a netting set and then calculates EAD based on that EE. An FDIC-supervised institution must calculate two EEs and two EADs (one stressed and one unstressed) for each netting set as follows: (i) EADunstressed is calculated using an EE estimate based on the most recent data meeting the requirements of paragraph (d)(3)(vii) of this section; (ii) EADstressed is calculated using an EE estimate based on a historical period that includes a period of stress to the credit default spreads of the FDICsupervised institution’s counterparties according to paragraph (d)(3)(viii) of this section; (iii) The FDIC-supervised institution must use its internal model’s probability distribution for changes in the fair value of a netting set that are attributable to changes in market variables to determine EE; and (iv) Under the internal models methodology, EAD = Max (0, a × effective EPE¥CVA), or, subject to the prior written approval of FDIC as provided in paragraph (d)(10) of this section, a more conservative measure of EAD. (A) CVA equals the credit valuation adjustment that the FDIC-supervised institution has recognized in its balance sheet valuation of any OTC derivative contracts in the netting set. For purposes of this paragraph, CVA does not include any adjustments to common equity tier 1 capital attributable to changes in the fair value of the FDICsupervised institution’s liabilities that are due to changes in its own credit risk since the inception of the transaction with the counterparty. (1) EffectiveEEtk = max(Effective EEtk−1, EEtk) (that is, for a specific date tk, effective EE is the greater of EE at that E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.029</GPH> emcdonald on DSK67QTVN1PROD with RULES2 (A) Agross equals the gross PFE (that is, the sum of the PFE amounts (as determined under paragraph (c)(5)(ii) of this section) for each individual derivative contract subject to the qualifying master netting agreement); and (B) NGR equals the net to gross ratio (that is, the ratio of the net current credit exposure to the gross current credit exposure). In calculating the NGR, the gross current credit exposure equals the sum of the positive current credit exposures (as determined under paragraph (c)(6)(i) of this section) of all individual derivative contracts subject to the qualifying master netting agreement. (7) Collateralized OTC derivative contracts. An FDIC-supervised institution may recognize the credit risk mitigation benefits of financial collateral that secures an OTC derivative contract or single-product netting set of OTC derivatives by factoring the collateral into its LGD estimates for the contract or netting set. Alternatively, an FDICsupervised institution may recognize the credit risk mitigation benefits of financial collateral that secures such a contract or netting set that is marked-tomarket on a daily basis and subject to a daily margin maintenance requirement by estimating an unsecured LGD for the contract or netting set and adjusting the EAD calculated under paragraph (c)(5) or (c)(6) of this section using the collateral haircut approach in paragraph (b)(2) of this section. The FDICsupervised institution must substitute the EAD calculated under paragraph (c)(5) or (c)(6) of this section for SE in the equation in paragraph (b)(2)(i) of this section and must use a ten-business day minimum holding period (TM = 10) unless a longer holding period is required by paragraph (b)(2)(iii)(A)(3) of this section. (8) Clearing member FDIC-supervised institution’s EAD. A clearing member FDIC-supervised institution’s EAD for an OTC derivative contract or netting set of OTC derivative contracts where the FDIC-supervised institution is either acting as a financial intermediary and enters into an offsetting transaction with a QCCP or where the FDIC-supervised institution provides a guarantee to the ER10SE13.028</GPH> 55540 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (ii) The model must estimate expected exposure at enough future dates to reflect accurately all the future cash flows of contracts in the netting set; (iii) The model must account for the possible non-normality of the exposure distribution, where appropriate; (iv) The FDIC-supervised institution must measure, monitor, and control current counterparty exposure and the exposure to the counterparty over the whole life of all contracts in the netting set; (v) The FDIC-supervised institution must be able to measure and manage current exposures gross and net of collateral held, where appropriate. The FDIC-supervised institution must estimate expected exposures for OTC derivative contracts both with and without the effect of collateral agreements; (vi) The FDIC-supervised institution must have procedures to identify, monitor, and control wrong-way risk throughout the life of an exposure. The procedures must include stress testing and scenario analysis; (vii) The model must use current market data to compute current exposures. The FDIC-supervised institution must estimate model parameters using historical data from the most recent three-year period and update the data quarterly or more frequently if market conditions warrant. The FDIC-supervised institution should consider using model parameters based on forward-looking measures, where appropriate; (viii) When estimating model parameters based on a stress period, the FDIC-supervised institution must use at least three years of historical data that include a period of stress to the credit default spreads of the FDIC-supervised institution’s counterparties. The FDICsupervised institution must review the data set and update the data as necessary, particularly for any material changes in its counterparties. The FDICsupervised institution must PO 00000 Frm 00203 Fmt 4701 Sfmt 4725 demonstrate, at least quarterly, and maintain documentation of such demonstration, that the stress period coincides with increased CDS or other credit spreads of the FDIC-supervised institution’s counterparties. The FDICsupervised institution must have procedures to evaluate the effectiveness of its stress calibration that include a process for using benchmark portfolios that are vulnerable to the same risk factors as the FDIC-supervised institution’s portfolio. The FDIC may require the FDIC-supervised institution to modify its stress calibration to better reflect actual historic losses of the portfolio; (ix) An FDIC-supervised institution must subject its internal model to an initial validation and annual model review process. The model review should consider whether the inputs and risk factors, as well as the model outputs, are appropriate. As part of the model review process, the FDICsupervised institution must have a backtesting program for its model that includes a process by which unacceptable model performance will be determined and remedied; (x) An FDIC-supervised institution must have policies for the measurement, management and control of collateral and margin amounts; and (xi) An FDIC-supervised institution must have a comprehensive stress testing program that captures all credit exposures to counterparties, and incorporates stress testing of principal market risk factors and creditworthiness of counterparties. (4) Calculating the maturity of exposures. (i) If the remaining maturity of the exposure or the longest-dated contract in the netting set is greater than one year, the FDIC-supervised institution must set M for the exposure or netting set equal to the lower of five years or M(EPE), where: E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.030</GPH> emcdonald on DSK67QTVN1PROD with RULES2 date or the effective EE at the previous date); and (2) tk represents the kth future time period in the model and there are n time periods represented in the model over the first year, and (C) a = 1.4 except as provided in paragraph (d)(5) of this section, or when the FDIC has determined that the FDICsupervised institution must set a higher based on the FDIC-supervised institution’s specific characteristics of counterparty credit risk or model performance. (v) An FDIC-supervised institution may include financial collateral currently posted by the counterparty as collateral (but may not include other forms of collateral) when calculating EE. (vi) If an FDIC-supervised institution hedges some or all of the counterparty credit risk associated with a netting set using an eligible credit derivative, the FDIC-supervised institution may take the reduction in exposure to the counterparty into account when estimating EE. If the FDIC-supervised institution recognizes this reduction in exposure to the counterparty in its estimate of EE, it must also use its internal model to estimate a separate EAD for the FDIC-supervised institution’s exposure to the protection provider of the credit derivative. (3) Prior approval relating to EAD calculation. To obtain FDIC approval to calculate the distributions of exposures upon which the EAD calculation is based, the FDIC-supervised institution must demonstrate to the satisfaction of the FDIC that it has been using for at least one year an internal model that broadly meets the following minimum standards, with which the FDICsupervised institution must maintain compliance: (i) The model must have the systems capability to estimate the expected exposure to the counterparty on a daily basis (but is not expected to estimate or report expected exposure on a daily basis); 55541 emcdonald on DSK67QTVN1PROD with RULES2 55542 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (ii) If the remaining maturity of the exposure or the longest-dated contract in the netting set is one year or less, the FDIC-supervised institution must set M for the exposure or netting set equal to one year, except as provided in § 324.131(d)(7). (iii) Alternatively, an FDIC-supervised institution that uses an internal model to calculate a one-sided credit valuation adjustment may use the effective credit duration estimated by the model as M(EPE) in place of the formula in paragraph (d)(4)(i) of this section. (5) Effects of collateral agreements on EAD. An FDIC-supervised institution may capture the effect on EAD of a collateral agreement that requires receipt of collateral when exposure to the counterparty increases, but may not capture the effect on EAD of a collateral agreement that requires receipt of collateral when counterparty credit quality deteriorates. Two methods are available to capture the effect of a collateral agreement, as set forth in paragraphs (d)(5)(i) and (ii) of this section: (i) With prior written approval from the FDIC, an FDIC-supervised institution may include the effect of a collateral agreement within its internal model used to calculate EAD. The FDICsupervised institution may set EAD equal to the expected exposure at the end of the margin period of risk. The margin period of risk means, with respect to a netting set subject to a collateral agreement, the time period from the most recent exchange of collateral with a counterparty until the next required exchange of collateral, plus the period of time required to sell and realize the proceeds of the least liquid collateral that can be delivered under the terms of the collateral agreement and, where applicable, the period of time required to re-hedge the resulting market risk upon the default of the counterparty. The minimum margin period of risk is set according to paragraph (d)(5)(iii) of this section; or (ii) As an alternative to paragraph (d)(5)(i) of this section, an FDICsupervised institution that can model EPE without collateral agreements but cannot achieve the higher level of modeling sophistication to model EPE with collateral agreements can set effective EPE for a collateralized netting set equal to the lesser of: (A) An add-on that reflects the potential increase in exposure of the netting set over the margin period of risk, plus the larger of: (1) The current exposure of the netting set reflecting all collateral held or posted by the FDIC-supervised VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 institution excluding any collateral called or in dispute; or (2) The largest net exposure including all collateral held or posted under the margin agreement that would not trigger a collateral call. For purposes of this section, the add-on is computed as the expected increase in the netting set’s exposure over the margin period of risk (set in accordance with paragraph (d)(5)(iii) of this section); or (B) Effective EPE without a collateral agreement plus any collateral the FDICsupervised institution posts to the counterparty that exceeds the required margin amount. (iii) For purposes of this part, including paragraphs (d)(5)(i) and (ii) of this section, the margin period of risk for a netting set subject to a collateral agreement is: (A) Five business days for repo-style transactions subject to daily remargining and daily marking-to-market, and ten business days for other transactions when liquid financial collateral is posted under a daily margin maintenance requirement, or (B) Twenty business days if the number of trades in a netting set exceeds 5,000 at any time during the previous quarter or contains one or more trades involving illiquid collateral or any derivative contract that cannot be easily replaced (except if the FDICsupervised institution is calculating EAD for a cleared transaction under § 324.133). If over the two previous quarters more than two margin disputes on a netting set have occurred that lasted more than the margin period of risk, then the FDIC-supervised institution must use a margin period of risk for that netting set that is at least two times the minimum margin period of risk for that netting set. If the periodicity of the receipt of collateral is N-days, the minimum margin period of risk is the minimum margin period of risk under this paragraph plus N minus 1. This period should be extended to cover any impediments to prompt rehedging of any market risk. (C) Five business days for an OTC derivative contract or netting set of OTC derivative contracts where the FDICsupervised institution is either acting as a financial intermediary and enters into an offsetting transaction with a CCP or where the FDIC-supervised institution provides a guarantee to the CCP on the performance of the client. An FDICsupervised institution must use a longer holding period if the FDIC-supervised institution determines that a longer period is appropriate. Additionally, the FDIC may require the FDIC-supervised institution to set a longer holding period if the FDIC determines that a longer PO 00000 Frm 00204 Fmt 4701 Sfmt 4700 period is appropriate due to the nature, structure, or characteristics of the transaction or is commensurate with the risks associated with the transaction. (6) Own estimate of alpha. With prior written approval of the FDIC, an FDICsupervised institution may calculate alpha as the ratio of economic capital from a full simulation of counterparty exposure across counterparties that incorporates a joint simulation of market and credit risk factors (numerator) and economic capital based on EPE (denominator), subject to a floor of 1.2. For purposes of this calculation, economic capital is the unexpected losses for all counterparty credit risks measured at a 99.9 percent confidence level over a one-year horizon. To receive approval, the FDIC-supervised institution must meet the following minimum standards to the satisfaction of the FDIC: (i) The FDIC-supervised institution’s own estimate of alpha must capture in the numerator the effects of: (A) The material sources of stochastic dependency of distributions of fair values of transactions or portfolios of transactions across counterparties; (B) Volatilities and correlations of market risk factors used in the joint simulation, which must be related to the credit risk factor used in the simulation to reflect potential increases in volatility or correlation in an economic downturn, where appropriate; and (C) The granularity of exposures (that is, the effect of a concentration in the proportion of each counterparty’s exposure that is driven by a particular risk factor). (ii) The FDIC-supervised institution must assess the potential model uncertainty in its estimates of alpha. (iii) The FDIC-supervised institution must calculate the numerator and denominator of alpha in a consistent fashion with respect to modeling methodology, parameter specifications, and portfolio composition. (iv) The FDIC-supervised institution must review and adjust as appropriate its estimates of the numerator and denominator of alpha on at least a quarterly basis and more frequently when the composition of the portfolio varies over time. (7) Risk-based capital requirements for transactions with specific wrong-way risk. An FDIC-supervised institution must determine if a repo-style transaction, eligible margin loan, bond option, or equity derivative contract or purchased credit derivative to which the FDIC-supervised institution applies the internal models methodology under this paragraph (d) has specific wrong-way risk. If a transaction has specific wrong- E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations way risk, the FDIC-supervised institution must treat the transaction as its own netting set and exclude it from the model described in paragraph (d)(2) of this section and instead calculate the risk-based capital requirement for the transaction as follows: (i) For an equity derivative contract, by multiplying: (A) K, calculated using the appropriate risk-based capital formula specified in Table 1 of § 324.131 using the PD of the counterparty and LGD equal to 100 percent, by (B) The maximum amount the FDICsupervised institution could lose on the equity derivative. (ii) For a purchased credit derivative by multiplying: (A) K, calculated using the appropriate risk-based capital formula specified in Table 1 of § 324.131 using the PD of the counterparty and LGD equal to 100 percent, by (B) The fair value of the reference asset of the credit derivative. (iii) For a bond option, by multiplying: (A) K, calculated using the appropriate risk-based capital formula specified in Table 1 of § 324.131 using the PD of the counterparty and LGD equal to 100 percent, by (B) The smaller of the notional amount of the underlying reference asset and the maximum potential loss under the bond option contract. (iv) For a repo-style transaction or eligible margin loan by multiplying: (A) K, calculated using the appropriate risk-based capital formula specified in Table 1 of § 324.131 using the PD of the counterparty and LGD equal to 100 percent, by (B) The EAD of the transaction determined according to the EAD equation in § 324.131(b)(2), substituting the estimated value of the collateral assuming a default of the counterparty for the value of the collateral in SC of the equation. (8) Risk-weighted asset amount for IMM exposures with specific wrong-way risk. The aggregate risk-weighted asset amount for IMM exposures with specific wrong-way risk is the sum of an FDICsupervised institution’s risk-based capital requirement for purchased credit derivatives that are not bond options with specific wrong-way risk as calculated under paragraph (d)(7)(ii) of this section, an FDIC-supervised institution’s risk-based capital requirement for equity derivatives with specific wrong-way risk as calculated under paragraph (d)(7)(i) of this section, an FDIC-supervised institution’s riskbased capital requirement for bond options with specific wrong-way risk as VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 calculated under paragraph (d)(7)(iii) of this section, and an FDIC-supervised institution’s risk-based capital requirement for repo-style transactions and eligible margin loans with specific wrong-way risk as calculated under paragraph (d)(7)(iv) of this section, multiplied by 12.5. (9) Risk-weighted assets for IMM exposures. (i) The FDIC-supervised institution must insert the assigned risk parameters for each counterparty and netting set into the appropriate formula specified in Table 1 of § 324.131 and multiply the output of the formula by the EADunstressed of the netting set to obtain the unstressed capital requirement for each netting set. An FDIC-supervised institution that uses an advanced CVA approach that captures migrations in credit spreads under paragraph (e)(3) of this section must set the maturity adjustment (b) in the formula equal to zero. The sum of the unstressed capital requirement calculated for each netting set equals Kunstressed. (ii) The FDIC-supervised institution must insert the assigned risk parameters for each wholesale obligor and netting set into the appropriate formula specified in Table 1 of § 324.131 and multiply the output of the formula by the EADstressed of the netting set to obtain the stressed capital requirement for each netting set. An FDIC-supervised institution that uses an advanced CVA approach that captures migrations in credit spreads under paragraph (e)(3) of this section must set the maturity adjustment (b) in the formula equal to zero. The sum of the stressed capital requirement calculated for each netting set equals Kstressed. (iii) The FDIC-supervised institution’s dollar risk-based capital requirement under the internal models methodology equals the larger of Kunstressed and Kstressed. An FDIC-supervised institution’s riskweighted assets amount for IMM exposures is equal to the capital requirement multiplied by 12.5, plus risk-weighted assets for IMM exposures with specific wrong-way risk in paragraph (d)(8) of this section and those in paragraph (d)(10) of this section. (10) Other measures of counterparty exposure. (i) With prior written approval of the FDIC, an FDICsupervised institution may set EAD equal to a measure of counterparty credit risk exposure, such as peak EAD, that is more conservative than an alpha of 1.4 (or higher under the terms of paragraph (d)(7)(iv)(C) of this section) times the larger of EPEunstressed and EPEstressed for every counterparty whose EAD will be measured under the PO 00000 Frm 00205 Fmt 4701 Sfmt 4700 55543 alternative measure of counterparty exposure. The FDIC-supervised institution must demonstrate the conservatism of the measure of counterparty credit risk exposure used for EAD. With respect to paragraph (d)(10)(i) of this section: (A) For material portfolios of new OTC derivative products, the FDICsupervised institution may assume that the current exposure methodology in paragraphs (c)(5) and (c)(6) of this section meets the conservatism requirement of this section for a period not to exceed 180 days. (B) For immaterial portfolios of OTC derivative contracts, the FDICsupervised institution generally may assume that the current exposure methodology in paragraphs (c)(5) and (c)(6) of this section meets the conservatism requirement of this section. (ii) To calculate risk-weighted assets for purposes of the approach in paragraph (d)(10)(i) of this section, the FDIC-supervised institution must insert the assigned risk parameters for each counterparty and netting set into the appropriate formula specified in Table 1 of § 324.131, multiply the output of the formula by the EAD for the exposure as specified above, and multiply by 12.5. (e) Credit valuation adjustment (CVA) risk-weighted assets. (1) In general. With respect to its OTC derivative contracts, an FDIC-supervised institution must calculate a CVA risk-weighted asset amount for its portfolio of OTC derivative transactions that are subject to the CVA capital requirement using the simple CVA approach described in paragraph (e)(5) of this section or, with prior written approval of the FDIC, the advanced CVA approach described in paragraph (e)(6) of this section. An FDIC-supervised institution that receives prior FDIC approval to calculate its CVA risk-weighted asset amounts for a class of counterparties using the advanced CVA approach must continue to use that approach for that class of counterparties until it notifies the FDIC in writing that the FDICsupervised institution expects to begin calculating its CVA risk-weighted asset amount using the simple CVA approach. Such notice must include an explanation of the FDIC-supervised institution’s rationale and the date upon which the FDIC-supervised institution will begin to calculate its CVA riskweighted asset amount using the simple CVA approach. (2) Market risk FDIC-supervised institutions. Notwithstanding the prior approval requirement in paragraph (e)(1) of this section, a market risk FDICsupervised institution may calculate its E:\FR\FM\10SER2.SGM 10SER2 55544 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations recognize a single name CDS, single name contingent CDS, any other equivalent hedging instrument that references the counterparty directly, and index credit default swaps (CDSind) as a CVA hedge under paragraph (e)(5)(ii) of this section or paragraph (e)(6) of this section, provided that the position is managed as a CVA hedge in accordance with the FDIC-supervised institution’s hedging policies. (ii) An FDIC-supervised institution shall not recognize as a CVA hedge any tranched or nth-to-default credit derivative. (4) Total CVA risk-weighted assets. Total CVA risk-weighted assets is the CVA capital requirement, KCVA, calculated for an FDIC-supervised institution’s entire portfolio of OTC derivative counterparties that are subject to the CVA capital requirement, multiplied by 12.5. (5) Simple CVA approach. (i) Under the simple CVA approach, the CVA capital requirement, KCVA, is calculated according to the following formula: (A) wi equals the weight applicable to counterparty i under Table 3 to § 324.132; (B) Mi equals the EAD-weighted average of the effective maturity of each netting set with counterparty i (where each netting set’s effective maturity can be no less than one year.) (C) EADi total equals the sum of the EAD for all netting sets of OTC derivative contracts with counterparty i calculated using the current exposure methodology described in paragraph (c) of this section or the internal models methodology described in paragraph (d) of this section. When the FDICsupervised institution calculates EAD under paragraph (c) of this section, such EAD may be adjusted for purposes of calculating EADi total by multiplying EAD by (1-exp(-0.05 × Mi))/(0.05 × Mi), where ‘‘exp’’ is the exponential function. When the FDIC-supervised institution calculates EAD under paragraph (d) of this section, EADi total equals EADunstressed. (D) M i hedge equals the notional weighted average maturity of the hedge instrument. (E) Bi equals the sum of the notional amounts of any purchased single name CDS referencing counterparty i that is used to hedge CVA risk to counterparty i multiplied by (1-exp(-0.05 × Mi hedge))/ (0.05 × Mi hedge). (F) Mind equals the maturity of the CDSind or the notional weighted average maturity of any CDSind purchased to hedge CVA risk of counterparty i. (G) Bind equals the notional amount of one or more CDSind purchased to hedge CVA risk for counterparty i multiplied by (1-exp(-0.05 × Mind))/(0.05 × Mind) (H) wind equals the weight applicable to the CDSind based on the average weight of the underlying reference names that comprise the index under Table 3 to § 324.132. (ii) The FDIC-supervised institution may treat the notional amount of the index attributable to a counterparty as a single name hedge of counterparty i (Bi,) when calculating KCVA, and subtract the notional amount of Bi from the notional amount of the CDSind. An FDICsupervised institution must treat the CDSind hedge with the notional amount reduced by Bi as a CVA hedge. VaR model that it uses to determine specific risk under § 324.207(b) or another VaR model that meets the quantitative requirements of § 324.205(b) and § 324.207(b)(1) to calculate its CVA capital requirement for a counterparty by modeling the impact of changes in the counterparties’ credit spreads, together with any recognized CVA hedges, on the CVA for the counterparties, subject to the following requirements: (A) The VaR model must incorporate only changes in the counterparties’ credit spreads, not changes in other risk factors. The VaR model does not need to capture jump-to-default risk; (B) An FDIC-supervised institution that qualifies to use the advanced CVA approach must include in that approach any immaterial OTC derivative portfolios for which it uses the current exposure methodology in paragraph (c) of this section according to paragraph (e)(6)(viii) of this section; and (C) An FDIC-supervised institution must have the systems capability to calculate the CVA capital requirement for a counterparty on a daily basis (but is not required to calculate the CVA capital requirement on a daily basis). (ii) Under the advanced CVA approach, the CVA capital requirement, KCVA, is calculated according to the following formulas: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 TABLE 3 TO § 324.132—ASSIGNMENT OF COUNTERPARTY WEIGHT Internal PD (in percent) Weight wi (in percent) 0.00–0.07 ............................ >0.070–0.15 ........................ >0.15–0.40 .......................... >0.40–2.00 .......................... >2.00—6.00 ........................ >6.00 ................................... 0.70 0.80 1.00 2.00 3.00 10.00 (6) Advanced CVA approach. (i) An FDIC-supervised institution may use the PO 00000 Frm 00206 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.031</GPH> emcdonald on DSK67QTVN1PROD with RULES2 CVA risk-weighted asset amount using the advanced CVA approach if the FDIC-supervised institution has FDIC approval to: (i) Determine EAD for OTC derivative contracts using the internal models methodology described in paragraph (d) of this section; and (ii) Determine its specific risk add-on for debt positions issued by the counterparty using a specific risk model described in § 324.207(b). (3) Recognition of hedges. (i) An FDIC-supervised institution may Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55545 counterparty. Where no market information and no reliable proxy based on the credit quality, industry, and region of the counterparty are available to determine LGDMKT, an FDICsupervised institution may use a conservative estimate when determining LGDMKT, subject to approval by the FDIC. (E) EEi equals the sum of the expected exposures for all netting sets with the counterparty at revaluation time ti, calculated according to paragraphs (e)(6)(iv)(A) and (e)(6)(v)(A) of this section. (F) Di equals the risk-free discount factor at time ti, where D0 = 1. (G) Exp is the exponential function. (H) The subscript j refers either to a stressed or an unstressed calibration as described (iii) Notwithstanding paragraphs (e)(6)(i) and (e)(6)(ii) of this section, an FDIC-supervised institution must use the formulas in paragraphs (e)(6)(iii)(A) or (e)(6)(iii)(B) of this section to calculate credit spread sensitivities if its VaR model is not based on full repricing. (A) If the VaR model is based on credit spread sensitivities for specific tenors, the FDIC-supervised institution must calculate each credit spread sensitivity according to the following formula: (B) If the VaR model uses credit spread sensitivities to parallel shifts in credit spreads, the FDIC-supervised institution must calculate each credit spread sensitivity according to the following formula: ER10SE13.033</GPH> ER10SE13.034</GPH> in paragraphs (e)(6)(iv) and (v) of this section. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00207 Fmt 4701 Sfmt 4725 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.032</GPH> emcdonald on DSK67QTVN1PROD with RULES2 Where (A) ti equals the time of the i-th revaluation time bucket starting from t0 = 0. (B) tT equals the longest contractual maturity across the OTC derivative contracts with the counterparty. (C) si equals the CDS spread for the counterparty at tenor ti used to calculate the CVA for the counterparty. If a CDS spread is not available, the FDICsupervised institution must use a proxy spread based on the credit quality, industry and region of the counterparty. (D) LGDMKT equals the loss given default of the counterparty based on the spread of a publicly traded debt instrument of the counterparty, or, where a publicly traded debt instrument spread is not available, a proxy spread based on the credit quality, industry, and region of the emcdonald on DSK67QTVN1PROD with RULES2 55546 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (iv) To calculate the CVAUnstressed measure for purposes of paragraph (e)(6)(ii) of this section, the FDICsupervised institution must: (A) Use the EEi calculated using the calibration of paragraph (d)(3)(vii) of this section, except as provided in § 324.132 (e)(6)(vi), and (B) Use the historical observation period required under § 324.205(b)(2). (v) To calculate the CVAStressed measure for purposes of paragraph (e)(6)(ii) of this section, the FDICsupervised institution must: (A) Use the EEi calculated using the stress calibration in paragraph (d)(3)(viii) of this section except as provided in paragraph (e)(6)(vi) of this section. (B) Calibrate VaR model inputs to historical data from the most severe twelve-month stress period contained within the three-year stress period used to calculate EEi. The FDIC may require an FDIC-supervised institution to use a different period of significant financial stress in the calculation of the CVAStressed measure. (vi) If an FDIC-supervised institution captures the effect of a collateral agreement on EAD using the method described in paragraph (d)(5)(ii) of this section, for purposes of paragraph (e)(6)(ii) of this section, the FDICsupervised institution must calculate EEi using the method in paragraph (d)(5)(ii) of this section and keep that EE constant with the maturity equal to the maximum of: (A) Half of the longest maturity of a transaction in the netting set, and (B) The notional weighted average maturity of all transactions in the netting set. (vii) For purposes of paragraph (e)(6) of this section, the FDIC-supervised institution’s VaR model must capture the basis between the spreads of any CDSind that is used as the hedging instrument and the hedged counterparty exposure over various time periods, including benign and stressed environments. If the VaR model does not capture that basis, the FDICsupervised institution must reflect only 50 percent of the notional amount of the CDSind hedge in the VaR model. (viii) If an FDIC-supervised institution uses the current exposure methodology described in paragraphs (c)(5) and (c)(6) of this section to calculate the EAD for any immaterial portfolios of OTC derivative contracts, the FDICsupervised institution must use that EAD as a constant EE in the formula for the calculation of CVA with the maturity equal to the maximum of: (A) Half of the longest maturity of a transaction in the netting set, and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (B) The notional weighted average maturity of all transactions in the netting set. § 324.133 Cleared transactions. (a) General requirements. (1) An FDIC-supervised institution that is a clearing member client must use the methodologies described in paragraph (b) of this section to calculate riskweighted assets for a cleared transaction. (2) An FDIC-supervised institution that is a clearing member must use the methodologies described in paragraph (c) of this section to calculate its riskweighted assets for cleared transactions and paragraph (d) of this section to calculate its risk-weighted assets for its default fund contribution to a CCP. (b) Clearing member client FDICsupervised institutions—(1) Riskweighted assets for cleared transactions. (i) To determine the risk-weighted asset amount for a cleared transaction, an FDIC-supervised institution that is a clearing member client must multiply the trade exposure amount for the cleared transaction, calculated in accordance with paragraph (b)(2) of this section, by the risk weight appropriate for the cleared transaction, determined in accordance with paragraph (b)(3) of this section. (ii) A clearing member client FDICsupervised institution’s total riskweighted assets for cleared transactions is the sum of the risk-weighted asset amounts for all of its cleared transactions. (2) Trade exposure amount. (i) For a cleared transaction that is a derivative contract or a netting set of derivative contracts, trade exposure amount equals the EAD for the derivative contract or netting set of derivative contracts calculated using the methodology used to calculate EAD for OTC derivative contracts set forth in § 324.132(c) or (d), plus the fair value of the collateral posted by the clearing member client FDIC-supervised institution and held by the CCP or a clearing member in a manner that is not bankruptcy remote. When the FDIC-supervised institution calculates EAD for the cleared transaction using the methodology in § 324.132(d), EAD equals EADunstressed. (ii) For a cleared transaction that is a repo-style transaction or netting set of repo-style transactions, trade exposure amount equals the EAD for the repostyle transaction calculated using the methodology set forth in § 324.132(b)(2), (b)(3), or (d), plus the fair value of the collateral posted by the clearing member client FDIC-supervised institution and held by the CCP or a clearing member in a manner that is not bankruptcy PO 00000 Frm 00208 Fmt 4701 Sfmt 4700 remote. When the FDIC-supervised institution calculates EAD for the cleared transaction under § 324.132(d), EAD equals EADunstressed. (3) Cleared transaction risk weights. (i) For a cleared transaction with a QCCP, a clearing member client FDICsupervised institution must apply a risk weight of: (A) 2 percent if the collateral posted by the FDIC-supervised institution to the QCCP or clearing member is subject to an arrangement that prevents any loss to the clearing member client FDICsupervised institution due to the joint default or a concurrent insolvency, liquidation, or receivership proceeding of the clearing member and any other clearing member clients of the clearing member; and the clearing member client FDIC-supervised institution has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that in the event of a legal challenge (including one resulting from an event of default or from liquidation, insolvency or receivership proceedings) the relevant court and administrative authorities would find the arrangements to be legal, valid, binding and enforceable under the law of the relevant jurisdictions. (B) 4 percent, if the requirements of § 324.132(b)(3)(i)(A) are not met. (ii) For a cleared transaction with a CCP that is not a QCCP, a clearing member client FDIC-supervised institution must apply the risk weight applicable to the CCP under § 324.32. (4) Collateral. (i) Notwithstanding any other requirement of this section, collateral posted by a clearing member client FDIC-supervised institution that is held by a custodian (in its capacity as custodian) in a manner that is bankruptcy remote from the CCP, the custodian, clearing member, and other clearing member clients of the clearing member, is not subject to a capital requirement under this section. (ii) A clearing member client FDICsupervised institution must calculate a risk-weighted asset amount for any collateral provided to a CCP, clearing member or a custodian in connection with a cleared transaction in accordance with requirements under § 324.131. (c) Clearing member FDIC-supervised institution—(1) Risk-weighted assets for cleared transactions. (i) To determine the risk-weighted asset amount for a cleared transaction, a clearing member FDIC-supervised institution must multiply the trade exposure amount for the cleared transaction, calculated in accordance with paragraph (c)(2) of this section by the risk weight appropriate E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (2) For option derivative contracts that are cleared transactions, the PFE described in § 324.132(c)(5) must be adjusted by multiplying the notional principal amount of the derivative contract by the appropriate conversion factor in Table 2 to § 324.132 and the absolute value of the option’s delta, that is, the ratio of the change in the value of the derivative contract to the corresponding change in the price of the underlying asset. (3) For repo-style transactions, when applying § 324.132(b)(2), the FDICsupervised institution must use the methodology in § 324.132(b)(2)(ii). (B) VMi equals any collateral posted by clearing member i to the QCCP that it is entitled to receive from the QCCP but has not yet received, and any collateral that the QCCP has actually received from clearing member i; (C) IMi equals the collateral posted as initial margin by clearing member i to the QCCP; (D) DFi equals the funded portion of clearing member i’s default fund contribution that will be applied to reduce the QCCP’s loss upon a default by clearing member i; and (E) RW equals 20 percent, except when the FDIC has determined that a higher risk VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00209 Fmt 4701 Sfmt 4700 (1) For purposes of this section, when calculating the EAD, the FDICsupervised institution may replace the formula provided in § 324.132 (c)(6)(ii) with the following formula: weight is more appropriate based on the specific characteristics of the QCCP and its clearing members; and (F) Where a QCCP has provided its KCCP, an FDIC-supervised institution must rely on such disclosed figure instead of calculating KCCP under this paragraph, unless the FDICsupervised institution determines that a more conservative figure is appropriate based on the nature, structure, or characteristics of the QCCP. (ii) For an FDIC-supervised institution that is a clearing member of a QCCP with a default fund supported by funded commitments, KCM equals: E:\FR\FM\10SER2.SGM 10SER2 er10se13.047</GPH> OTC derivative contracts set forth in § 324.132(c)(5) and § 324.132.(c)(6) or the methodology used to calculate EAD for repo-style transactions set forth in § 324.132(b)(2) for repo-style transactions, provided that: amount for a default fund contribution to a CCP at least quarterly, or more frequently if, in the opinion of the FDICsupervised institution or the FDIC, there is a material change in the financial condition of the CCP. (2) Risk-weighted asset amount for default fund contributions to nonqualifying CCPs. A clearing member FDIC-supervised institution’s riskweighted asset amount for default fund contributions to CCPs that are not QCCPs equals the sum of such default fund contributions multiplied by 1,250 percent or an amount determined by the FDIC, based on factors such as size, structure and membership characteristics of the CCP and riskiness of its transactions, in cases where such default fund contributions may be unlimited. (3) Risk-weighted asset amount for default fund contributions to QCCPs. A clearing member FDIC-supervised institution’s risk-weighted asset amount for default fund contributions to QCCPs equals the sum of its capital requirement, KCM for each QCCP, as calculated under the methodology set forth in paragraph (d)(3)(i) of this section (Method 1), multiplied by 1,250 percent or paragraph (d)(3)(iv) of this section (Method 2). (i) Method 1. The hypothetical capital requirement of a QCCP (KCCP) equals: er10se13.035</GPH> posted by the clearing member FDICsupervised institution and held by the CCP in a manner that is not bankruptcy remote. When the clearing member FDIC-supervised institution calculates EAD for the cleared transaction under § 324.132(d), EAD equals EADunstressed. (3) Cleared transaction risk weights. (i) A clearing member FDIC-supervised institution must apply a risk weight of 2 percent to the trade exposure amount for a cleared transaction with a QCCP. (ii) For a cleared transaction with a CCP that is not a QCCP, a clearing member FDIC-supervised institution must apply the risk weight applicable to the CCP according to § 324.32. (4) Collateral. (i) Notwithstanding any other requirement of this section, collateral posted by a clearing member FDIC-supervised institution that is held by a custodian in a manner that is bankruptcy remote from the CCP is not subject to a capital requirement under this section. (ii) A clearing member FDICsupervised institution must calculate a risk-weighted asset amount for any collateral provided to a CCP, clearing member or a custodian in connection with a cleared transaction in accordance with requirements under § 324.131 (d) Default fund contributions—(1) General requirement. A clearing member FDIC-supervised institution must determine the risk-weighted asset Where (A) EBRMi equals the EAD for each transaction cleared through the QCCP by clearing member i, calculated using the methodology used to calculate EAD for emcdonald on DSK67QTVN1PROD with RULES2 for the cleared transaction, determined in accordance with paragraph (c)(3) of this section. (ii) A clearing member FDICsupervised institution’s total riskweighted assets for cleared transactions is the sum of the risk-weighted asset amounts for all of its cleared transactions. (2) Trade exposure amount. A clearing member FDIC-supervised institution must calculate its trade exposure amount for a cleared transaction as follows: (i) For a cleared transaction that is a derivative contract or a netting set of derivative contracts, trade exposure amount equals the EAD calculated using the methodology used to calculate EAD for OTC derivative contracts set forth in § 324.132(c) or § 324.132(d), plus the fair value of the collateral posted by the clearing member FDIC-supervised institution and held by the CCP in a manner that is not bankruptcy remote. When the clearing member FDICsupervised institution calculates EAD for the cleared transaction using the methodology in § 324.132(d), EAD equals EADunstressed. (ii) For a cleared transaction that is a repo-style transaction or netting set of repo-style transactions, trade exposure amount equals the EAD calculated under §§ 324.132(b)(2), (b)(3), or (d), plus the fair value of the collateral 55547 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00210 Fmt 4701 Sfmt 4725 E:\FR\FM\10SER2.SGM 10SER2 er10se13.036</GPH> emcdonald on DSK67QTVN1PROD with RULES2 55548 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 described above in this paragraph (d)(3)(iii), KCM equals: Where (1) IMi equals the FDIC-supervised institution’s initial margin posted to the QCCP; (2) IMCM = the total of initial margin posted to the QCCP; and PO 00000 Frm 00211 Fmt 4701 Sfmt 4700 (3) K*CM as defined above in this paragraph (d)(3)(iii). (iv) Method 2. A clearing member FDICsupervised institution’s risk-weighted asset amount for its default fund contribution to a QCCP, RWADF, equals: RWADF = Min {12.5 * DF; 0.18 * TE} Where (A) TE equals the FDIC-supervised institution’s trade exposure amount to the QCCP calculated according to section 133(c)(2); E:\FR\FM\10SER2.SGM 10SER2 er10se13.038</GPH> Where (A) DFi equals the FDIC-supervised institution’s unfunded commitment to the default fund; (B) DFCM equals the total of all clearing members’ unfunded commitments to the default fund; and (C) K*CM as defined in paragraph (d)(3)(ii) of this section. (D) For an FDIC-supervised institution that is a clearing member of a QCCP with a default fund supported by unfunded commitments and that is unable to calculate KCM using the methodology 55549 er10se13.037</GPH> emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55550 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (B) DF equals the funded portion of the FDICsupervised institution’s default fund contribution to the QCCP. (v) Total risk-weighted assets for default fund contributions. Total riskweighted assets for default fund contributions is the sum of a clearing member FDIC-supervised institution’s risk-weighted assets for all of its default fund contributions to all CCPs of which the FDIC-supervised institution is a clearing member. emcdonald on DSK67QTVN1PROD with RULES2 § 324.134 Guarantees and credit derivatives: PD substitution and LGD adjustment approaches. (a) Scope. (1) This section applies to wholesale exposures for which: (i) Credit risk is fully covered by an eligible guarantee or eligible credit derivative; or (ii) Credit risk is covered on a pro rata basis (that is, on a basis in which the FDIC-supervised institution and the protection provider share losses proportionately) by an eligible guarantee or eligible credit derivative. (2) Wholesale exposures on which there is a tranching of credit risk (reflecting at least two different levels of seniority) are securitization exposures subject to §§ 324.141 through 324.145. (3) An FDIC-supervised institution may elect to recognize the credit risk mitigation benefits of an eligible guarantee or eligible credit derivative covering an exposure described in paragraph (a)(1) of this section by using the PD substitution approach or the LGD adjustment approach in paragraph (c) of this section or, if the transaction qualifies, using the double default treatment in § 324.135. An FDICsupervised institution’s PD and LGD for the hedged exposure may not be lower than the PD and LGD floors described in § 324.131(d)(2) and (d)(3). (4) If multiple eligible guarantees or eligible credit derivatives cover a single exposure described in paragraph (a)(1) of this section, an FDIC-supervised institution may treat the hedged exposure as multiple separate exposures each covered by a single eligible guarantee or eligible credit derivative and may calculate a separate risk-based capital requirement for each separate exposure as described in paragraph (a)(3) of this section. (5) If a single eligible guarantee or eligible credit derivative covers multiple hedged wholesale exposures described in paragraph (a)(1) of this section, an FDIC-supervised institution must treat each hedged exposure as covered by a separate eligible guarantee or eligible credit derivative and must calculate a separate risk-based capital requirement VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 for each exposure as described in paragraph (a)(3) of this section. (6) An FDIC-supervised institution must use the same risk parameters for calculating ECL as it uses for calculating the risk-based capital requirement for the exposure. (b) Rules of recognition. (1) An FDICsupervised institution may only recognize the credit risk mitigation benefits of eligible guarantees and eligible credit derivatives. (2) An FDIC-supervised institution may only recognize the credit risk mitigation benefits of an eligible credit derivative to hedge an exposure that is different from the credit derivative’s reference exposure used for determining the derivative’s cash settlement value, deliverable obligation, or occurrence of a credit event if: (i) The reference exposure ranks pari passu (that is, equally) with or is junior to the hedged exposure; and (ii) The reference exposure and the hedged exposure are exposures to the same legal entity, and legally enforceable cross-default or crossacceleration clauses are in place to assure payments under the credit derivative are triggered when the obligor fails to pay under the terms of the hedged exposure. (c) Risk parameters for hedged exposures—(1) PD substitution approach—(i) Full coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs (a) and (b) of this section and the protection amount (P) of the guarantee or credit derivative is greater than or equal to the EAD of the hedged exposure, an FDIC-supervised institution may recognize the guarantee or credit derivative in determining the FDIC-supervised institution’s risk-based capital requirement for the hedged exposure by substituting the PD associated with the rating grade of the protection provider for the PD associated with the rating grade of the obligor in the risk-based capital formula applicable to the guarantee or credit derivative in Table 1 of § 324.131 and using the appropriate LGD as described in paragraph (c)(1)(iii) of this section. If the FDIC-supervised institution determines that full substitution of the protection provider’s PD leads to an inappropriate degree of risk mitigation, the FDIC-supervised institution may substitute a higher PD than that of the protection provider. (ii) Partial coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs (a) and (b) of this section and P of the guarantee or credit derivative is less than the EAD of the hedged exposure, PO 00000 Frm 00212 Fmt 4701 Sfmt 4700 the FDIC-supervised institution must treat the hedged exposure as two separate exposures (protected and unprotected) in order to recognize the credit risk mitigation benefit of the guarantee or credit derivative. (A) The FDIC-supervised institution must calculate its risk-based capital requirement for the protected exposure under § 324.131, where PD is the protection provider’s PD, LGD is determined under paragraph (c)(1)(iii) of this section, and EAD is P. If the FDICsupervised institution determines that full substitution leads to an inappropriate degree of risk mitigation, the FDIC-supervised institution may use a higher PD than that of the protection provider. (B) The FDIC-supervised institution must calculate its risk-based capital requirement for the unprotected exposure under § 324.131, where PD is the obligor’s PD, LGD is the hedged exposure’s LGD (not adjusted to reflect the guarantee or credit derivative), and EAD is the EAD of the original hedged exposure minus P. (C) The treatment in paragraph (c)(1)(ii) of this section is applicable when the credit risk of a wholesale exposure is covered on a partial pro rata basis or when an adjustment is made to the effective notional amount of the guarantee or credit derivative under paragraphs (d), (e), or (f) of this section. (iii) LGD of hedged exposures. The LGD of a hedged exposure under the PD substitution approach is equal to: (A) The lower of the LGD of the hedged exposure (not adjusted to reflect the guarantee or credit derivative) and the LGD of the guarantee or credit derivative, if the guarantee or credit derivative provides the FDIC-supervised institution with the option to receive immediate payout upon triggering the protection; or (B) The LGD of the guarantee or credit derivative, if the guarantee or credit derivative does not provide the FDICsupervised institution with the option to receive immediate payout upon triggering the protection. (2) LGD adjustment approach—(i) Full coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs (a) and (b) of this section and the protection amount (P) of the guarantee or credit derivative is greater than or equal to the EAD of the hedged exposure, the FDIC-supervised institution’s risk-based capital requirement for the hedged exposure is the greater of: (A) The risk-based capital requirement for the exposure as calculated under § 324.131, with the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations LGD of the exposure adjusted to reflect the guarantee or credit derivative; or (B) The risk-based capital requirement for a direct exposure to the protection provider as calculated under § 324.131, using the PD for the protection provider, the LGD for the guarantee or credit derivative, and an EAD equal to the EAD of the hedged exposure. (ii) Partial coverage. If an eligible guarantee or eligible credit derivative meets the conditions in paragraphs (a) and (b) of this section and the protection amount (P) of the guarantee or credit derivative is less than the EAD of the hedged exposure, the FDIC-supervised institution must treat the hedged exposure as two separate exposures (protected and unprotected) in order to recognize the credit risk mitigation benefit of the guarantee or credit derivative. (A) The FDIC-supervised institution’s risk-based capital requirement for the protected exposure would be the greater of: (1) The risk-based capital requirement for the protected exposure as calculated under § 324.131, with the LGD of the exposure adjusted to reflect the guarantee or credit derivative and EAD set equal to P; or (2) The risk-based capital requirement for a direct exposure to the guarantor as calculated under § 324.131, using the PD for the protection provider, the LGD for the guarantee or credit derivative, and an EAD set equal to P. (B) The FDIC-supervised institution must calculate its risk-based capital requirement for the unprotected exposure under § 324.131, where PD is the obligor’s PD, LGD is the hedged exposure’s LGD (not adjusted to reflect the guarantee or credit derivative), and EAD is the EAD of the original hedged exposure minus P. (3) M of hedged exposures. For purposes of this paragraph (c), the M of the hedged exposure is the same as the M of the exposure if it were unhedged. (d) Maturity mismatch. (1) An FDICsupervised institution that recognizes an eligible guarantee or eligible credit derivative in determining its risk-based capital requirement for a hedged exposure must adjust the effective notional amount of the credit risk mitigant to reflect any maturity mismatch between the hedged exposure and the credit risk mitigant. (2) A maturity mismatch occurs when the residual maturity of a credit risk mitigant is less than that of the hedged exposure(s). (3) The residual maturity of a hedged exposure is the longest possible remaining time before the obligor is scheduled to fulfil its obligation on the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 exposure. If a credit risk mitigant has embedded options that may reduce its term, the FDIC-supervised institution (protection purchaser) must use the shortest possible residual maturity for the credit risk mitigant. If a call is at the discretion of the protection provider, the residual maturity of the credit risk mitigant is at the first call date. If the call is at the discretion of the FDICsupervised institution (protection purchaser), but the terms of the arrangement at origination of the credit risk mitigant contain a positive incentive for the FDIC-supervised institution to call the transaction before contractual maturity, the remaining time to the first call date is the residual maturity of the credit risk mitigant.26 (4) A credit risk mitigant with a maturity mismatch may be recognized only if its original maturity is greater than or equal to one year and its residual maturity is greater than three months. (5) When a maturity mismatch exists, the FDIC-supervised institution must apply the following adjustment to the effective notional amount of the credit risk mitigant: Pm = E × (t¥0.25)/ (T¥0.25), where: (i) Pm equals effective notional amount of the credit risk mitigant, adjusted for maturity mismatch; (ii) E equals effective notional amount of the credit risk mitigant; (iii) t equals the lesser of T or the residual maturity of the credit risk mitigant, expressed in years; and (iv) T equals the lesser of five or the residual maturity of the hedged exposure, expressed in years. (e) Credit derivatives without restructuring as a credit event. If an FDIC-supervised institution recognizes an eligible credit derivative that does not include as a credit event a restructuring of the hedged exposure involving forgiveness or postponement of principal, interest, or fees that results in a credit loss event (that is, a chargeoff, specific provision, or other similar debit to the profit and loss account), the FDIC-supervised institution must apply the following adjustment to the effective notional amount of the credit derivative: Pr = Pm × 0.60, where: (1) Pr equals effective notional amount of the credit risk mitigant, adjusted for lack of restructuring event (and maturity mismatch, if applicable); and (2) Pm equals effective notional amount of the credit risk mitigant 26 For example, where there is a step-up in cost in conjunction with a call feature or where the effective cost of protection increases over time even if credit quality remains the same or improves, the residual maturity of the credit risk mitigant will be the remaining time to the first call. PO 00000 Frm 00213 Fmt 4701 Sfmt 4700 55551 adjusted for maturity mismatch (if applicable). (f) Currency mismatch. (1) If an FDICsupervised institution recognizes an eligible guarantee or eligible credit derivative that is denominated in a currency different from that in which the hedged exposure is denominated, the FDIC-supervised institution must apply the following formula to the effective notional amount of the guarantee or credit derivative: Pc = Pr × (1¥HFX), where: (i) Pc equals effective notional amount of the credit risk mitigant, adjusted for currency mismatch (and maturity mismatch and lack of restructuring event, if applicable); (ii) Pr equals effective notional amount of the credit risk mitigant (adjusted for maturity mismatch and lack of restructuring event, if applicable); and (iii) HFX equals haircut appropriate for the currency mismatch between the credit risk mitigant and the hedged exposure. (2) An FDIC-supervised institution must set HFX equal to 8 percent unless it qualifies for the use of and uses its own internal estimates of foreign exchange volatility based on a tenbusiness-day holding period and daily marking-to-market and remargining. An FDIC-supervised institution qualifies for the use of its own internal estimates of foreign exchange volatility if it qualifies for: (i) The own-estimates haircuts in § 324.132(b)(2)(iii); (ii) The simple VaR methodology in § 324.132(b)(3); or (iii) The internal models methodology in § 324.132(d). (3) An FDIC-supervised institution must adjust HFX calculated in paragraph (f)(2) of this section upward if the FDICsupervised institution revalues the guarantee or credit derivative less frequently than once every ten business days using the square root of time formula provided in § 324.132(b)(2)(iii)(A)(2). § 324.135 Guarantees and credit derivatives: Double default treatment. (a) Eligibility and operational criteria for double default treatment. An FDICsupervised institution may recognize the credit risk mitigation benefits of a guarantee or credit derivative covering an exposure described in § 324.134(a)(1) by applying the double default treatment in this section if all the following criteria are satisfied: (1) The hedged exposure is fully covered or covered on a pro rata basis by: (i) An eligible guarantee issued by an eligible double default guarantor; or E:\FR\FM\10SER2.SGM 10SER2 55552 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations received the prior, written approval of the FDIC) to detect excessive correlation between the creditworthiness of the obligor of the hedged exposure and the protection provider. If excessive correlation is present, the FDICsupervised institution may not use the double default treatment for the hedged exposure. (b) Full coverage. If a transaction meets the criteria in paragraph (a) of this section and the protection amount (P) of the guarantee or credit derivative is at least equal to the EAD of the hedged exposure, the FDIC-supervised institution may determine its riskweighted asset amount for the hedged exposure under paragraph (e) of this section. (c) Partial coverage. If a transaction meets the criteria in paragraph (a) of this section and the protection amount (P) of the guarantee or credit derivative is less than the EAD of the hedged exposure, the FDIC-supervised institution must treat the hedged exposure as two separate exposures (protected and unprotected) in order to recognize double default treatment on the protected portion of the exposure: (1) For the protected exposure, the FDIC-supervised institution must set EAD equal to P and calculate its riskweighted asset amount as provided in paragraph (e) of this section; and (2) For the unprotected exposure, the FDIC-supervised institution must set EAD equal to the EAD of the original exposure minus P and then calculate its risk-weighted asset amount as provided in § 324.131. (d) Mismatches. For any hedged exposure to which an FDIC-supervised institution applies double default treatment under this part, the FDICsupervised institution must make applicable adjustments to the protection amount as required in §§ 324.134(d), (e), and (f). (e) The double default dollar riskbased capital requirement. The dollar risk-based capital requirement for a hedged exposure to which an FDICsupervised institution has applied double default treatment is KDD multiplied by the EAD of the exposure. KDD is calculated according to the following formula: KDD = Ko × (0.15 + 160 × PDg), (2) PDg equals PD of the protection provider. (3) PDo equals PD of the obligor of the hedged exposure. (4) LGDg equals: (i) The lower of the LGD of the hedged exposure (not adjusted to reflect the guarantee or credit derivative) and the LGD of the guarantee or credit derivative, if the guarantee or credit derivative provides the FDIC-supervised institution with the option to receive immediate payout on triggering the protection; or (ii) The LGD of the guarantee or credit derivative, if the guarantee or credit derivative does not provide the FDICsupervised institution with the option to receive immediate payout on triggering the protection; and (5) ros (asset value correlation of the obligor) is calculated according to the appropriate formula for (R) provided in Table 1 in § 324.131, with PD equal to PDo. (6) b (maturity adjustment coefficient) is calculated according to the formula for b provided in Table 1 in § 324.131, with PD equal to the lesser of PDo and PDg; and (7) M (maturity) is the effective maturity of the guarantee or credit derivative, which may not be less than one year or greater than five years. § 324.136 transaction value at the agreed settlement price and the current market price of the transaction, if the difference results in a credit exposure of the FDICsupervised institution to the counterparty. (b) Scope. This section applies to all transactions involving securities, foreign exchange instruments, and commodities that have a risk of delayed settlement or delivery. This section does not apply to: (1) Cleared transactions that are subject to daily marking-to-market and daily receipt and payment of variation margin; (2) Repo-style transactions, including unsettled repo-style transactions (which are addressed in §§ 324.131 and 324.132); (3) One-way cash payments on OTC derivative contracts (which are addressed in §§ 324.131 and 324.132); or (4) Transactions with a contractual settlement period that is longer than the normal settlement period (which are treated as OTC derivative contracts and addressed in §§ 324.131 and 324.132). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Unsettled transactions. (a) Definitions. For purposes of this section: (1) Delivery-versus-payment (DvP) transaction means a securities or commodities transaction in which the buyer is obligated to make payment only if the seller has made delivery of the securities or commodities and the seller is obligated to deliver the securities or commodities only if the buyer has made payment. (2) Payment-versus-payment (PvP) transaction means a foreign exchange transaction in which each counterparty is obligated to make a final transfer of one or more currencies only if the other counterparty has made a final transfer of one or more currencies. (3) A transaction has a normal settlement period if the contractual settlement period for the transaction is equal to or less than the market standard for the instrument underlying the transaction and equal to or less than five business days. (4) The positive current exposure of an FDIC-supervised institution for a transaction is the difference between the PO 00000 Frm 00214 Fmt 4701 Sfmt 4700 where: (1) E:\FR\FM\10SER2.SGM 10SER2 er10se13.039</GPH> emcdonald on DSK67QTVN1PROD with RULES2 (ii) An eligible credit derivative that meets the requirements of § 324.134(b)(2) and that is issued by an eligible double default guarantor. (2) The guarantee or credit derivative is: (i) An uncollateralized guarantee or uncollateralized credit derivative (for example, a credit default swap) that provides protection with respect to a single reference obligor; or (ii) An nth-to-default credit derivative (subject to the requirements of § 324.142(m)). (3) The hedged exposure is a wholesale exposure (other than a sovereign exposure). (4) The obligor of the hedged exposure is not: (i) An eligible double default guarantor or an affiliate of an eligible double default guarantor; or (ii) An affiliate of the guarantor. (5) The FDIC-supervised institution does not recognize any credit risk mitigation benefits of the guarantee or credit derivative for the hedged exposure other than through application of the double default treatment as provided in this section. (6) The FDIC-supervised institution has implemented a process (which has Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (c) System-wide failures. In the case of a system-wide failure of a settlement or clearing system, or a central counterparty, the FDIC may waive riskbased capital requirements for unsettled and failed transactions until the situation is rectified. (d) Delivery-versus-payment (DvP) and payment-versus-payment (PvP) transactions. An FDIC-supervised institution must hold risk-based capital against any DvP or PvP transaction with a normal settlement period if the FDICsupervised institution’s counterparty has not made delivery or payment within five business days after the settlement date. The FDIC-supervised institution must determine its riskweighted asset amount for such a transaction by multiplying the positive current exposure of the transaction for the FDIC-supervised institution by the appropriate risk weight in Table 1 to § 324.136. for the transaction provided the FDICsupervised institution uses the 45 percent LGD for all transactions described in § 324.135(e)(1) and (e)(2). (ii) An FDIC-supervised institution may use a 100 percent risk weight for the transaction provided the FDICsupervised institution uses this risk weight for all transactions described in §§ 324.135(e)(1) and (e)(2). (3) If the FDIC-supervised institution has not received its deliverables by the fifth business day after the counterparty delivery was due, the FDIC-supervised institution must apply a 1,250 percent risk weight to the current fair value of the deliverables owed to the FDICsupervised institution. (f) Total risk-weighted assets for unsettled transactions. Total riskweighted assets for unsettled transactions is the sum of the riskweighted asset amounts of all DvP, PvP, and non-DvP/non-PvP transactions. §§ 324.137 through 324.140 [Reserved] TABLE 1 TO § 324.136—RISK WEIGHTS FOR UNSETTLED DVP AND Risk-Weighted Assets for Securitization PVP TRANSACTIONS Exposures emcdonald on DSK67QTVN1PROD with RULES2 Number of business days after contractual settlement date Risk weight to be applied to positive current exposure (in percent) § 324.141 Operational criteria for recognizing the transfer of risk. (a) Operational criteria for traditional securitizations. An FDIC-supervised institution that transfers exposures it From 5 to 15 ............... 100 has originated or purchased to a From 16 to 30 ............. 625 From 31 to 45 ............. 937.5 securitization SPE or other third party 46 or more .................. 1,250 in connection with a traditional securitization may exclude the (e) Non-DvP/non-PvP (non-deliveryexposures from the calculation of its versus-payment/non-payment-versusrisk-weighted assets only if each of the payment) transactions. (1) An FDICconditions in this paragraph (a) is supervised institution must hold risksatisfied. An FDIC-supervised based capital against any non-DvP/non- institution that meets these conditions PvP transaction with a normal must hold risk-based capital against any settlement period if the FDIC-supervised securitization exposures it retains in institution has delivered cash, connection with the securitization. An securities, commodities, or currencies to FDIC-supervised institution that fails to its counterparty but has not received its meet these conditions must hold riskcorresponding deliverables by the end based capital against the transferred of the same business day. The FDICexposures as if they had not been supervised institution must continue to securitized and must deduct from hold risk-based capital against the common equity tier 1 capital any aftertransaction until the FDIC-supervised tax gain-on-sale resulting from the institution has received its transaction. The conditions are: corresponding deliverables. (1) The exposures are not reported on (2) From the business day after the the FDIC-supervised institution’s FDIC-supervised institution has made consolidated balance sheet under its delivery until five business days after GAAP; the counterparty delivery is due, the (2) The FDIC-supervised institution FDIC-supervised institution must has transferred to one or more third calculate its risk-based capital parties credit risk associated with the requirement for the transaction by underlying exposures; treating the current fair value of the (3) Any clean-up calls relating to the deliverables owed to the FDICsecuritization are eligible clean-up calls; supervised institution as a wholesale and exposure. (4) The securitization does not: (i) An FDIC-supervised institution (i) Include one or more underlying may use a 45 percent LGD for the exposures in which the borrower is transaction rather than estimating LGD permitted to vary the drawn amount VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00215 Fmt 4701 Sfmt 4700 55553 within an agreed limit under a line of credit; and (ii) Contain an early amortization provision. (b) Operational criteria for synthetic securitizations. For synthetic securitizations, an FDIC-supervised institution may recognize for risk-based capital purposes under this subpart the use of a credit risk mitigant to hedge underlying exposures only if each of the conditions in this paragraph (b) is satisfied. An FDIC-supervised institution that meets these conditions must hold risk-based capital against any credit risk of the exposures it retains in connection with the synthetic securitization. An FDIC-supervised institution that fails to meet these conditions or chooses not to recognize the credit risk mitigant for purposes of this section must hold risk-based capital under this subpart against the underlying exposures as if they had not been synthetically securitized. The conditions are: (1) The credit risk mitigant is: (i) Financial collateral; or (ii) A guarantee that meets all of the requirements of an eligible guarantee in § 324.2 except for paragraph (3) of the definition; or (iii) A credit derivative that meets all of the requirements of an eligible credit derivative except for paragraph (3) of the definition of eligible guarantee in § 324.2. (2) The FDIC-supervised institution transfers credit risk associated with the underlying exposures to third parties, and the terms and conditions in the credit risk mitigants employed do not include provisions that: (i) Allow for the termination of the credit protection due to deterioration in the credit quality of the underlying exposures; (ii) Require the FDIC-supervised institution to alter or replace the underlying exposures to improve the credit quality of the underlying exposures; (iii) Increase the FDIC-supervised institution’s cost of credit protection in response to deterioration in the credit quality of the underlying exposures; (iv) Increase the yield payable to parties other than the FDIC-supervised institution in response to a deterioration in the credit quality of the underlying exposures; or (v) Provide for increases in a retained first loss position or credit enhancement provided by the FDIC-supervised institution after the inception of the securitization; (3) The FDIC-supervised institution obtains a well-reasoned opinion from legal counsel that confirms the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55554 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations enforceability of the credit risk mitigant in all relevant jurisdictions; and (4) Any clean-up calls relating to the securitization are eligible clean-up calls. (c) Due diligence requirements for securitization exposures. (1) Except for exposures that are deducted from common equity tier 1 capital and exposures subject to § 324.142(k), if an FDIC-supervised institution is unable to demonstrate to the satisfaction of the FDIC a comprehensive understanding of the features of a securitization exposure that would materially affect the performance of the exposure, the FDICsupervised institution must assign a 1,250 percent risk weight to the securitization exposure. The FDICsupervised institution’s analysis must be commensurate with the complexity of the securitization exposure and the materiality of the position in relation to regulatory capital according to this part. (2) An FDIC-supervised institution must demonstrate its comprehensive understanding of a securitization exposure under paragraph (c)(1) of this section, for each securitization exposure by: (i) Conducting an analysis of the risk characteristics of a securitization exposure prior to acquiring the exposure and document such analysis within three business days after acquiring the exposure, considering: (A) Structural features of the securitization that would materially impact the performance of the exposure, for example, the contractual cash flow waterfall, waterfall-related triggers, credit enhancements, liquidity enhancements, fair value triggers, the performance of organizations that service the position, and deal-specific definitions of default; (B) Relevant information regarding the performance of the underlying credit exposure(s), for example, the percentage of loans 30, 60, and 90 days past due; default rates; prepayment rates; loans in foreclosure; property types; occupancy; average credit score or other measures of creditworthiness; average loan-to-value ratio; and industry and geographic diversification data on the underlying exposure(s); (C) Relevant market data of the securitization, for example, bid-ask spreads, most recent sales price and historical price volatility, trading volume, implied market rating, and size, depth and concentration level of the market for the securitization; and (D) For resecuritization exposures, performance information on the underlying securitization exposures, for example, the issuer name and credit quality, and the characteristics and performance of the exposures VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 underlying the securitization exposures; and (ii) On an on-going basis (no less frequently than quarterly), evaluating, reviewing, and updating as appropriate the analysis required under this section for each securitization exposure. § 324.142 Risk-weighted assets for securitization exposures. (a) Hierarchy of approaches. Except as provided elsewhere in this section and in § 324.141: (1) An FDIC-supervised institution must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from a securitization and must apply a 1,250 percent risk weight to the portion of any CEIO that does not constitute after tax gain-on-sale; (2) If a securitization exposure does not require deduction or a 1,250 percent risk weight under paragraph (a)(1) of this section, the FDIC-supervised institution must apply the supervisory formula approach in § 324.143 to the exposure if the FDIC-supervised institution and the exposure qualify for the supervisory formula approach according to § 324.143(a); (3) If a securitization exposure does not require deduction or a 1,250 percent risk weight under paragraph (a)(1) of this section and does not qualify for the supervisory formula approach, the FDIC-supervised institution may apply the simplified supervisory formula approach under § 324.144; (4) If a securitization exposure does not require deduction or a 1,250 percent risk weight under paragraph (a)(1) of this section, does not qualify for the supervisory formula approach in § 324.143, and the FDIC-supervised institution does not apply the simplified supervisory formula approach in § 324.144, the FDIC-supervised institution must apply a 1,250 percent risk weight to the exposure; and (5) If a securitization exposure is a derivative contract (other than protection provided by an FDICsupervised institution in the form of a credit derivative) that has a first priority claim on the cash flows from the underlying exposures (notwithstanding amounts due under interest rate or currency derivative contracts, fees due, or other similar payments), an FDICsupervised institution may choose to set the risk-weighted asset amount of the exposure equal to the amount of the exposure as determined in paragraph (e) of this section rather than apply the hierarchy of approaches described in paragraphs (a)(1) through (4) of this section. (b) Total risk-weighted assets for securitization exposures. An FDIC- PO 00000 Frm 00216 Fmt 4701 Sfmt 4700 supervised institution’s total riskweighted assets for securitization exposures is equal to the sum of its riskweighted assets calculated using §§ 324.141 through 146. (c) Deductions. An FDIC-supervised institution may calculate any deduction from common equity tier 1 capital for a securitization exposure net of any DTLs associated with the securitization exposure. (d) Maximum risk-based capital requirement. Except as provided in § 324.141(c), unless one or more underlying exposures does not meet the definition of a wholesale, retail, securitization, or equity exposure, the total risk-based capital requirement for all securitization exposures held by a single FDIC-supervised institution associated with a single securitization (excluding any risk-based capital requirements that relate to the FDICsupervised institution’s gain-on-sale or CEIOs associated with the securitization) may not exceed the sum of: (1) The FDIC-supervised institution’s total risk-based capital requirement for the underlying exposures calculated under this subpart as if the FDICsupervised institution directly held the underlying exposures; and (2) The total ECL of the underlying exposures calculated under this subpart. (e) Exposure amount of a securitization exposure. (1) The exposure amount of an on-balance sheet securitization exposure that is not a repo-style transaction, eligible margin loan, OTC derivative contract, or cleared transaction is the FDIC-supervised institution’s carrying value. (2) Except as provided in paragraph (m) of this section, the exposure amount of an off-balance sheet securitization exposure that is not an OTC derivative contract (other than a credit derivative), repo-style transaction, eligible margin loan, or cleared transaction (other than a credit derivative) is the notional amount of the exposure. For an offbalance-sheet securitization exposure to an ABCP program, such as an eligible ABCP liquidity facility, the notional amount may be reduced to the maximum potential amount that the FDIC-supervised institution could be required to fund given the ABCP program’s current underlying assets (calculated without regard to the current credit quality of those assets). (3) The exposure amount of a securitization exposure that is a repostyle transaction, eligible margin loan, or OTC derivative contract (other than a credit derivative) or cleared transaction (other than a credit derivative) is the E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations EAD of the exposure as calculated in § 324.132 or § 324.133. (f) Overlapping exposures. If an FDICsupervised institution has multiple securitization exposures that provide duplicative coverage of the underlying exposures of a securitization (such as when an FDIC-supervised institution provides a program-wide credit enhancement and multiple pool-specific liquidity facilities to an ABCP program), the FDIC-supervised institution is not required to hold duplicative risk-based capital against the overlapping position. Instead, the FDIC-supervised institution may assign to the overlapping securitization exposure the applicable risk-based capital treatment under this subpart that results in the highest riskbased capital requirement. (g) Securitizations of non-IRB exposures. Except as provided in § 324.141(c), if an FDIC-supervised institution has a securitization exposure where any underlying exposure is not a wholesale exposure, retail exposure, securitization exposure, or equity exposure, the FDIC-supervised institution: (1) Must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from the securitization and apply a 1,250 percent risk weight to the portion of any CEIO that does not constitute gain-on-sale, if the FDICsupervised institution is an originating FDIC-supervised institution; (2) May apply the simplified supervisory formula approach in § 324.144 to the exposure, if the securitization exposure does not require deduction or a 1,250 percent risk weight under paragraph (g)(1) of this section; (3) Must assign a 1,250 percent risk weight to the exposure if the securitization exposure does not require deduction or a 1,250 percent risk weight under paragraph (g)(1) of this section, does not qualify for the supervisory formula approach in § 324.143, and the FDIC-supervised institution does not apply the simplified supervisory formula approach in § 324.144 to the exposure. (h) Implicit support. If an FDICsupervised institution provides support to a securitization in excess of the FDICsupervised institution’s contractual obligation to provide credit support to the securitization (implicit support): (1) The FDIC-supervised institution must calculate a risk-weighted asset amount for underlying exposures associated with the securitization as if the exposures had not been securitized and must deduct from common equity tier 1 capital any after-tax gain-on-sale resulting from the securitization; and VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) The FDIC-supervised institution must disclose publicly: (i) That it has provided implicit support to the securitization; and (ii) The regulatory capital impact to the FDIC-supervised institution of providing such implicit support. (i) Undrawn portion of a servicer cash advance facility. (1) Notwithstanding any other provision of this subpart, an FDIC-supervised institution that is a servicer under an eligible servicer cash advance facility is not required to hold risk-based capital against potential future cash advance payments that it may be required to provide under the contract governing the facility. (2) For an FDIC-supervised institution that acts as a servicer, the exposure amount for a servicer cash advance facility that is not an eligible servicer cash advance facility is equal to the amount of all potential future cash advance payments that the FDICsupervised institution may be contractually required to provide during the subsequent 12 month period under the contract governing the facility. (j) Interest-only mortgage-backed securities. Regardless of any other provisions in this part, the risk weight for a non-credit-enhancing interest-only mortgage-backed security may not be less than 100 percent. (k) Small-business loans and leases on personal property transferred with recourse. (1) Notwithstanding any other provisions of this subpart E, an FDICsupervised institution that has transferred small-business loans and leases on personal property (smallbusiness obligations) with recourse must include in risk-weighted assets only the contractual amount of retained recourse if all the following conditions are met: (i) The transaction is a sale under GAAP. (ii) The FDIC-supervised institution establishes and maintains, pursuant to GAAP, a non-capital reserve sufficient to meet the FDIC-supervised institution’s reasonably estimated liability under the recourse arrangement. (iii) The loans and leases are to businesses that meet the criteria for a small-business concern established by the Small Business Administration under section 3(a) of the Small Business Act (15 U.S.C. 632 et seq.); and (iv) The FDIC-supervised institution is well-capitalized, as defined in subpart H of this part. For purposes of determining whether an FDICsupervised institution is well capitalized for purposes of this paragraph, the FDIC-supervised institution’s capital ratios must be PO 00000 Frm 00217 Fmt 4701 Sfmt 4700 55555 calculated without regard to the capital treatment for transfers of small-business obligations with recourse specified in paragraph (k)(1) of this section. (2) The total outstanding amount of recourse retained by an FDIC-supervised institution on transfers of smallbusiness obligations subject to paragraph (k)(1) of this section cannot exceed 15 percent of the FDICsupervised institution’s total capital. (3) If an FDIC-supervised institution ceases to be well capitalized or exceeds the 15 percent capital limitation in paragraph (k)(2) of this section, the preferential capital treatment specified in paragraph (k)(1) of this section will continue to apply to any transfers of small-business obligations with recourse that occurred during the time that the FDIC-supervised institution was well capitalized and did not exceed the capital limit. (4) The risk-based capital ratios of an FDIC-supervised institution must be calculated without regard to the capital treatment for transfers of small-business obligations with recourse specified in paragraph (k)(1) of this section. (l) Nth-to-default credit derivatives— (1) Protection provider. An FDICsupervised institution must determine a risk weight using the supervisory formula approach (SFA) pursuant to § 324.143 or the simplified supervisory formula approach (SSFA) pursuant to § 324.144 for an nth-to-default credit derivative in accordance with this paragraph. In the case of credit protection sold, an FDIC-supervised institution must determine its exposure in the nth-to-default credit derivative as the largest notional amount of all the underlying exposures. (2) For purposes of determining the risk weight for an nth-to-default credit derivative using the SFA or the SSFA, the FDIC-supervised institution must calculate the attachment point and detachment point of its exposure as follows: (i) The attachment point (parameter A) is the ratio of the sum of the notional amounts of all underlying exposures that are subordinated to the FDICsupervised institution’s exposure to the total notional amount of all underlying exposures. For purposes of the SSFA, parameter A is expressed as a decimal value between zero and one. For purposes of using the SFA to calculate the risk weight for its exposure in an nthto-default credit derivative, parameter A must be set equal to the credit enhancement level (L) input to the SFA formula. In the case of a first-to-default credit derivative, there are no underlying exposures that are subordinated to the FDIC-supervised E:\FR\FM\10SER2.SGM 10SER2 55556 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 institution’s exposure. In the case of a second-or-subsequent-to-default credit derivative, the smallest (n-1) riskweighted asset amounts of the underlying exposure(s) are subordinated to the FDIC-supervised institution’s exposure. (ii) The detachment point (parameter D) equals the sum of parameter A plus the ratio of the notional amount of the FDIC-supervised institution’s exposure in the nth-to-default credit derivative to the total notional amount of all underlying exposures. For purposes of the SSFA, parameter W is expressed as a decimal value between zero and one. For purposes of the SFA, parameter D must be set to equal L plus the thickness of tranche T input to the SFA formula. (3) An FDIC-supervised institution that does not use the SFA or the SSFA to determine a risk weight for its exposure in an nth-to-default credit derivative must assign a risk weight of 1,250 percent to the exposure. (4) Protection purchaser—(i) First-todefault credit derivatives. An FDICsupervised institution that obtains credit protection on a group of underlying exposures through a first-todefault credit derivative that meets the rules of recognition of § 324.134(b) must determine its risk-based capital requirement under this subpart for the underlying exposures as if the FDICsupervised institution synthetically securitized the underlying exposure with the lowest risk-based capital requirement and had obtained no credit risk mitigant on the other underlying exposures. An FDIC-supervised institution must calculate a risk-based capital requirement for counterparty credit risk according to § 324.132 for a first-to-default credit derivative that does not meet the rules of recognition of § 324.134(b). (ii) Second-or-subsequent-to-default credit derivatives. (A) An FDICsupervised institution that obtains credit protection on a group of underlying exposures through a nth-todefault credit derivative that meets the rules of recognition of § 324.134(b) (other than a first-to-default credit derivative) may recognize the credit risk mitigation benefits of the derivative only if: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (1) The FDIC-supervised institution also has obtained credit protection on the same underlying exposures in the form of first-through-(n-1)-to-default credit derivatives; or (2) If n-1 of the underlying exposures have already defaulted. (B) If an FDIC-supervised institution satisfies the requirements of paragraph (l)(3)(ii)(A) of this section, the FDICsupervised institution must determine its risk-based capital requirement for the underlying exposures as if the bank had only synthetically securitized the underlying exposure with the nth smallest risk-based capital requirement and had obtained no credit risk mitigant on the other underlying exposures. (C) An FDIC-supervised institution must calculate a risk-based capital requirement for counterparty credit risk according to § 324.132 for a nth-todefault credit derivative that does not meet the rules of recognition of § 324.134(b). (m) Guarantees and credit derivatives other than nth-to-default credit derivatives—(1) Protection provider. For a guarantee or credit derivative (other than an nth-to-default credit derivative) provided by an FDIC-supervised institution that covers the full amount or a pro rata share of a securitization exposure’s principal and interest, the FDIC-supervised institution must risk weight the guarantee or credit derivative as if it holds the portion of the reference exposure covered by the guarantee or credit derivative. (2) Protection purchaser. (i) An FDICsupervised institution that purchases an OTC credit derivative (other than an nthto-default credit derivative) that is recognized under § 324.145 as a credit risk mitigant (including via recognized collateral) is not required to compute a separate counterparty credit risk capital requirement under § 324.131 in accordance with § 324.132(c)(3). (ii) If an FDIC-supervised institution cannot, or chooses not to, recognize a purchased credit derivative as a credit risk mitigant under § 324.145, the FDICsupervised institution must determine the exposure amount of the credit derivative under § 324.132(c). (A) If the FDIC-supervised institution purchases credit protection from a counterparty that is not a securitization PO 00000 Frm 00218 Fmt 4701 Sfmt 4700 SPE, the FDIC-supervised institution must determine the risk weight for the exposure according to § 324.131. (B) If the FDIC-supervised institution purchases the credit protection from a counterparty that is a securitization SPE, the FDIC-supervised institution must determine the risk weight for the exposure according to this § 324.142, including paragraph (a)(5) of this section for a credit derivative that has a first priority claim on the cash flows from the underlying exposures of the securitization SPE (notwithstanding amounts due under interest rate or currency derivative contracts, fees due, or other similar payments. § 324.143 (SFA). Supervisory formula approach (a) Eligibility requirements. An FDICsupervised institution must use the SFA to determine its risk-weighted asset amount for a securitization exposure if the FDIC-supervised institution can calculate on an ongoing basis each of the SFA parameters in paragraph (e) of this section. (b) Mechanics. The risk-weighted asset amount for a securitization exposure equals its SFA risk-based capital requirement as calculated under paragraph (c) and (d) of this section, multiplied by 12.5. (c) The SFA risk-based capital requirement. (1) If KIRB is greater than or equal to L+T, an exposure’s SFA riskbased capital requirement equals the exposure amount. (2) If KIRB is less than or equal to L, an exposure’s SFA risk-based capital requirement is UE multiplied by TP multiplied by the greater of: (i) F · T (where F is 0.016 for all securitization exposures); or (ii) S[L + T] ¥ S[L]. (3) If KIRB is greater than L and less than L +T, the FDIC-supervised institution must apply a 1,250 percent risk weight to an amount equal to UE · TP · (KIRB ¥ L), and the exposure’s SFA risk-based capital requirement is UE multiplied by TP multiplied by the greater of: (i) F · (T ¥ (KIRB ¥ L)) (where F is 0.016 for all other securitization exposures); or (ii) S[L + T] ¥ S[KIRB]. (d) The supervisory formula: E:\FR\FM\10SER2.SGM 10SER2 (e) SFA parameters. For purposes of the calculations in paragraphs (c) and (d) of this section: (1) Amount of the underlying exposures (UE). UE is the EAD of any underlying exposures that are wholesale and retail exposures (including the amount of any funded spread accounts, cash collateral accounts, and other similar funded credit enhancements) plus the amount of any underlying exposures that are securitization exposures (as defined in § 324.142(e)) plus the adjusted carrying value of any underlying exposures that are equity exposures (as defined in § 324.151(b)). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) Tranche percentage (TP). TP is the ratio of the amount of the FDICsupervised institution’s securitization exposure to the amount of the tranche that contains the securitization exposure. (3) Capital requirement on underlying exposures (KIRB). (i) KIRB is the ratio of: (A) The sum of the risk-based capital requirements for the underlying exposures plus the expected credit losses of the underlying exposures (as determined under this subpart E as if the underlying exposures were directly held by the FDIC-supervised institution); to PO 00000 Frm 00219 Fmt 4701 Sfmt 4700 55557 (B) UE. (ii) The calculation of KIRB must reflect the effects of any credit risk mitigant applied to the underlying exposures (either to an individual underlying exposure, to a group of underlying exposures, or to all of the underlying exposures). (iii) All assets related to the securitization are treated as underlying exposures, including assets in a reserve account (such as a cash collateral account). (4) Credit enhancement level (L). (i) L is the ratio of: E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.040</GPH> emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (4) Alternatively, if only C1 is available and C1 is no more than 0.03, the FDIC-supervised institution may set EWALGD = 0.50 if none of the underlying exposures is a securitization exposure, or may set EWALGD = 1 if one or more of the underlying exposures is a securitization exposure and may set N = 1/C1. emcdonald on DSK67QTVN1PROD with RULES2 § 324.144 Simplified supervisory formula approach (SSFA). (a) General requirements for the SSFA. To use the SSFA to determine the risk weight for a securitization exposure, an FDIC-supervised institution must have data that enables it to assign accurately the parameters described in paragraph (b) of this section. Data used to assign the parameters described in paragraph (b) of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 where EADi represents the EAD associated with the ith instrument in the underlying exposures. (ii) Multiple exposures to one obligor must be treated as a single underlying exposure. (iii) In the case of a resecuritization, the FDIC-supervised institution must treat each underlying exposure as a single underlying exposure and must not look through to the originally securitized underlying exposures. (7) Exposure-weighted average loss given default (EWALGD). EWALGD is calculated as: where LGDi represents the average LGD associated with all exposures to the ith obligor. In the case of a resecuritization, an LGD of 100 percent must be assumed for the underlying exposures that are themselves securitization exposures. (f) Simplified method for computing N and EWALGD. (1) If all underlying exposures of a securitization are retail exposures, an FDIC-supervised institution may apply the SFA using the following simplifications: (i) h = 0; and (ii) v = 0. (2) Under the conditions in §§ 324.143(f)(3) and (f)(4), an FDICsupervised institution may employ a simplified method for calculating N and EWALGD. (3) If C1 is no more than 0.03, an FDIC-supervised institution may set EWALGD = 0.50 if none of the underlying exposures is a securitization exposure, or may set EWALGD = 1 if one or more of the underlying exposures is a securitization exposure, and may set N equal to the following amount: this section must be the most currently available data; if the contracts governing the underlying exposures of the securitization require payments on a monthly or quarterly basis, the data used to assign the parameters described in paragraph (b) of this section must be no more than 91 calendar days old. An FDIC-supervised institution that does not have the appropriate data to assign the parameters described in paragraph (b) of this section must assign a risk weight of 1,250 percent to the exposure. (b) SSFA parameters. To calculate the risk weight for a securitization exposure using the SSFA, an FDIC-supervised institution must have accurate information on the following five inputs to the SSFA calculation: (1) KG is the weighted-average (with unpaid principal used as the weight for each exposure) total capital requirement of the underlying exposures calculated using subpart D of this part. KG is expressed as a decimal value between zero and one (that is, an average risk weight of 100 percent represents a value of KG equal to 0.08). (2) Parameter W is expressed as a decimal value between zero and one. Parameter W is the ratio of the sum of the dollar amounts of any underlying exposures of the securitization that meet any of the criteria as set forth in paragraphs (b)(2)(i) through (vi) of this section to the balance, measured in dollars, of underlying exposures: (i) Ninety days or more past due; (ii) Subject to a bankruptcy or insolvency proceeding; (iii) In the process of foreclosure; (iv) Held as real estate owned; (v) Has contractually deferred payments for 90 days or more, other than principal or interest payments deferred on: (A) Federally-guaranteed student loans, in accordance with the terms of those guarantee programs; or (B) Consumer loans, including nonfederally-guaranteed student loans, provided that such payments are deferred pursuant to provisions PO 00000 Frm 00220 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.043</GPH> where: (i) Cm is the ratio of the sum of the amounts of the ‘m’ largest underlying exposures to UE; and (ii) The level of m is to be selected by the FDIC-supervised institution. provides credit enhancement for the securitization exposure. (5) Thickness of tranche (T). T is the ratio of: (i) The amount of the tranche that contains the FDIC-supervised institution’s securitization exposure; to (ii) UE. (6) Effective number of exposures (N). (i) Unless the FDIC-supervised institution elects to use the formula provided in paragraph (f) of this section, ER10SE13.042</GPH> (A) The amount of all securitization exposures subordinated to the tranche that contains the FDIC-supervised institution’s securitization exposure; to (B) UE. (ii) An FDIC-supervised institution must determine L before considering the effects of any tranche-specific credit enhancements. (iii) Any gain-on-sale or CEIO associated with the securitization may not be included in L. (iv) Any reserve account funded by accumulated cash flows from the underlying exposures that is subordinated to the tranche that contains the FDIC-supervised institution’s securitization exposure may be included in the numerator and denominator of L to the extent cash has accumulated in the account. Unfunded reserve accounts (that is, reserve accounts that are to be funded from future cash flows from the underlying exposures) may not be included in the calculation of L. (v) In some cases, the purchase price of receivables will reflect a discount that provides credit enhancement (for example, first loss protection) for all or certain tranches of the securitization. When this arises, L should be calculated inclusive of this discount if the discount ER10SE13.041</GPH> 55558 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 included in the contract at the time funds are disbursed that provide for period(s) of deferral that are not initiated based on changes in the creditworthiness of the borrower; or (vi) Is in default. (3) Parameter A is the attachment point for the exposure, which represents the threshold at which credit losses will first be allocated to the exposure. Except as provided in § 324.142(l) for nth-todefault credit derivatives, parameter A equals the ratio of the current dollar amount of underlying exposures that are subordinated to the exposure of the FDIC-supervised institution to the current dollar amount of underlying exposures. Any reserve account funded by the accumulated cash flows from the underlying exposures that is subordinated to the FDIC-supervised institution’s securitization exposure may be included in the calculation of parameter A to the extent that cash is present in the account. Parameter A is expressed as a decimal value between zero and one. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (4) Parameter D is the detachment point for the exposure, which represents the threshold at which credit losses of principal allocated to the exposure would result in a total loss of principal. Except as provided in § 324.142(l) for nth-to-default credit derivatives, parameter D equals parameter A plus the ratio of the current dollar amount of the securitization exposures that are pari passu with the exposure (that is, have equal seniority with respect to credit risk) to the current dollar amount of the underlying exposures. Parameter D is expressed as a decimal value between zero and one. (5) A supervisory calibration parameter, p, is equal to 0.5 for securitization exposures that are not resecuritization exposures and equal to 1.5 for resecuritization exposures. (c) Mechanics of the SSFA. KG and W are used to calculate KA, the augmented value of KG, which reflects the observed credit quality of the underlying exposures. KA is defined in paragraph (d) of this section. The values of parameters A and D, relative to KA PO 00000 Frm 00221 Fmt 4701 Sfmt 4700 55559 determine the risk weight assigned to a securitization exposure as described in paragraph (d) of this section. The risk weight assigned to a securitization exposure, or portion of a securitization exposure, as appropriate, is the larger of the risk weight determined in accordance with this paragraph, paragraph (d) of this section, and a risk weight of 20 percent. (1) When the detachment point, parameter D, for a securitization exposure is less than or equal to KA, the exposure must be assigned a risk weight of 1,250 percent; (2) When the attachment point, parameter A, for a securitization exposure is greater than or equal to KA, the FDIC-supervised institution must calculate the risk weight in accordance with paragraph (d) of this section; (3) When A is less than KA and D is greater than KA, the risk weight is a weighted-average of 1,250 percent and 1,250 percent times KSSFA calculated in accordance with paragraph (d) of this section. For the purpose of this weighted-average calculation: E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES2 § 324.145 Recognition of credit risk mitigants for securitization exposures. (a) General. An originating FDICsupervised institution that has obtained a credit risk mitigant to hedge its securitization exposure to a synthetic or traditional securitization that satisfies the operational criteria in § 324.141 may recognize the credit risk mitigant, but VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 only as provided in this section. An investing FDIC-supervised institution that has obtained a credit risk mitigant to hedge a securitization exposure may recognize the credit risk mitigant, but only as provided in this section. (b) Collateral—(1) Rules of recognition. An FDIC-supervised institution may recognize financial PO 00000 Frm 00222 Fmt 4701 Sfmt 4700 collateral in determining the FDICsupervised institution’s risk-weighted asset amount for a securitization exposure (other than a repo-style transaction, an eligible margin loan, or an OTC derivative contract for which the FDIC-supervised institution has reflected collateral in its determination of exposure amount under § 324.132) as E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.044</GPH> 55560 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55561 § 324.143 multiplied by the ratio of adjusted exposure amount (SE*) to original exposure amount (SE), where: (i) SE* equals max {0, [SE ¥ C × (1¥ Hs ¥ Hfx)]}; (ii) SE equals the amount of the securitization exposure calculated under § 324.142(e); (iii) C equals the current fair value of the collateral; (iv) Hs equals the haircut appropriate to the collateral type; and (v) Hfx equals the haircut appropriate for any currency mismatch between the collateral and the exposure. (3) Standard supervisory haircuts. Unless an FDIC-supervised institution qualifies for use of and uses ownestimates haircuts in paragraph (b)(4) of this section: (i) An FDIC-supervised institution must use the collateral type haircuts (Hs) in Table 1 to § 324.132 of this subpart; (ii) An FDIC-supervised institution must use a currency mismatch haircut (Hfx) of 8 percent if the exposure and the collateral are denominated in different currencies; (iii) An FDIC-supervised institution must multiply the supervisory haircuts obtained in paragraphs (b)(3)(i) and (ii) of this section by the square root of 6.5 (which equals 2.549510); and (iv) An FDIC-supervised institution must adjust the supervisory haircuts upward on the basis of a holding period longer than 65 business days where and as appropriate to take into account the illiquidity of the collateral. (4) Own estimates for haircuts. With the prior written approval of the FDIC, an FDIC-supervised institution may calculate haircuts using its own internal estimates of market price volatility and foreign exchange volatility, subject to § 324.132(b)(2)(iii). The minimum holding period (TM) for securitization exposures is 65 business days. (c) Guarantees and credit derivatives—(1) Limitations on recognition. An FDIC-supervised institution may only recognize an eligible guarantee or eligible credit derivative provided by an eligible guarantor in determining the FDICsupervised institution’s risk-weighted asset amount for a securitization exposure. (2) ECL for securitization exposures. When an FDIC-supervised institution recognizes an eligible guarantee or eligible credit derivative provided by an eligible guarantor in determining the FDIC-supervised institution’s riskweighted asset amount for a securitization exposure, the FDICsupervised institution must also: (i) Calculate ECL for the protected portion of the exposure using the same risk parameters that it uses for calculating the risk-weighted asset amount of the exposure as described in paragraph (c)(3) of this section; and (ii) Add the exposure’s ECL to the FDIC-supervised institution’s total ECL. (3) Rules of recognition. An FDICsupervised institution may recognize an eligible guarantee or eligible credit derivative provided by an eligible guarantor in determining the FDICsupervised institution’s risk-weighted asset amount for the securitization exposure as follows: (i) Full coverage. If the protection amount of the eligible guarantee or eligible credit derivative equals or exceeds the amount of the securitization exposure, the FDIC-supervised institution may set the risk-weighted asset amount for the securitization exposure equal to the risk-weighted asset amount for a direct exposure to the eligible guarantor (as determined in the wholesale risk weight function described in § 324.131), using the FDICsupervised institution’s PD for the guarantor, the FDIC-supervised institution’s LGD for the guarantee or credit derivative, and an EAD equal to the amount of the securitization exposure (as determined in § 324.142(e)). (ii) Partial coverage. If the protection amount of the eligible guarantee or eligible credit derivative is less than the amount of the securitization exposure, the FDIC-supervised institution may set the risk-weighted asset amount for the securitization exposure equal to the sum of: (A) Covered portion. The riskweighted asset amount for a direct exposure to the eligible guarantor (as determined in the wholesale risk weight function described in § 324.131), using the FDIC-supervised institution’s PD for the guarantor, the FDIC-supervised institution’s LGD for the guarantee or credit derivative, and an EAD equal to the protection amount of the credit risk mitigant; and (B) Uncovered portion. (1) 1.0 minus the ratio of the protection amount of the eligible guarantee or eligible credit derivative to the amount of the securitization exposure); multiplied by (2) The risk-weighted asset amount for the securitization exposure without the credit risk mitigant (as determined in §§ 324.142 through 324.146). (4) Mismatches. The FDIC-supervised institution must make applicable adjustments to the protection amount as required in § 324.134(d), (e), and (f) for any hedged securitization exposure and any more senior securitization exposure that benefits from the hedge. In the context of a synthetic securitization, when an eligible guarantee or eligible credit derivative covers multiple hedged exposures that have different residual maturities, the FDIC-supervised institution must use the longest residual maturity of any of the hedged exposures as the residual maturity of all the hedged exposures. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00223 Fmt 4701 Sfmt 4700 §§ 324.146 through 324.150 [Reserved] Risk-Weighted Assets for Equity Exposures § 324.151 Introduction and exposure measurement. (a) General. (1) To calculate its riskweighted asset amounts for equity E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.048</GPH> emcdonald on DSK67QTVN1PROD with RULES2 follows. The FDIC-supervised institution’s risk-weighted asset amount for the collateralized securitization exposure is equal to the risk-weighted asset amount for the securitization exposure as calculated under the SSFA in § 324.144 or under the SFA in emcdonald on DSK67QTVN1PROD with RULES2 55562 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations exposures that are not equity exposures to investment funds, an FDICsupervised institution may apply either the Simple Risk Weight Approach (SRWA) in § 324.152 or, if it qualifies to do so, the Internal Models Approach (IMA) in § 324.153. An FDIC-supervised institution must use the look-through approaches provided in § 324.154 to calculate its risk-weighted asset amounts for equity exposures to investment funds. (2) An FDIC-supervised institution must treat an investment in a separate account (as defined in § 324.2), as if it were an equity exposure to an investment fund as provided in § 324.154. (3) Stable value protection. (i) Stable value protection means a contract where the provider of the contract is obligated to pay: (A) The policy owner of a separate account an amount equal to the shortfall between the fair value and cost basis of the separate account when the policy owner of the separate account surrenders the policy, or (B) The beneficiary of the contract an amount equal to the shortfall between the fair value and book value of a specified portfolio of assets. (ii) An FDIC-supervised institution that purchases stable value protection on its investment in a separate account must treat the portion of the carrying value of its investment in the separate account attributable to the stable value protection as an exposure to the provider of the protection and the remaining portion of the carrying value of its separate account as an equity exposure to an investment fund. (iii) An FDIC-supervised institution that provides stable value protection must treat the exposure as an equity derivative with an adjusted carrying value determined as the sum of § 324.151(b)(1) and (2). (b) Adjusted carrying value. For purposes of this subpart, the adjusted carrying value of an equity exposure is: (1) For the on-balance sheet component of an equity exposure, the FDIC-supervised institution’s carrying value of the exposure; (2) For the off-balance sheet component of an equity exposure, the effective notional principal amount of the exposure, the size of which is equivalent to a hypothetical on-balance sheet position in the underlying equity instrument that would evidence the same change in fair value (measured in dollars) for a given small change in the price of the underlying equity instrument, minus the adjusted carrying value of the on-balance sheet component of the exposure as VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 calculated in paragraph (b)(1) of this section. (3) For unfunded equity commitments that are unconditional, the effective notional principal amount is the notional amount of the commitment. For unfunded equity commitments that are conditional, the effective notional principal amount is the FDICsupervised institution’s best estimate of the amount that would be funded under economic downturn conditions. § 324.152 (SRWA). Simple risk weight approach (a) General. Under the SRWA, an FDIC-supervised institution’s aggregate risk-weighted asset amount for its equity exposures is equal to the sum of the risk-weighted asset amounts for each of the FDIC-supervised institution’s individual equity exposures (other than equity exposures to an investment fund) as determined in this section and the risk-weighted asset amounts for each of the FDIC-supervised institution’s individual equity exposures to an investment fund as determined in § 324.154. (b) SRWA computation for individual equity exposures. An FDIC-supervised institution must determine the riskweighted asset amount for an individual equity exposure (other than an equity exposure to an investment fund) by multiplying the adjusted carrying value of the equity exposure or the effective portion and ineffective portion of a hedge pair (as defined in paragraph (c) of this section) by the lowest applicable risk weight in this section. (1) Zero percent risk weight equity exposures. An equity exposure to an entity whose credit exposures are exempt from the 0.03 percent PD floor in § 324.131(d)(2) is assigned a zero percent risk weight. (2) 20 percent risk weight equity exposures. An equity exposure to a Federal Home Loan Bank or the Federal Agricultural Mortgage Corporation (Farmer Mac) is assigned a 20 percent risk weight. (3) 100 percent risk weight equity exposures. The following equity exposures are assigned a 100 percent risk weight: (i) Community development equity exposures. An equity exposure that qualifies as a community development investment under section 24 (Eleventh) of the National Bank Act, excluding equity exposures to an unconsolidated small business investment company and equity exposures held through a consolidated small business investment company described in section 302 of the Small Business Investment Act. PO 00000 Frm 00224 Fmt 4701 Sfmt 4700 (ii) Effective portion of hedge pairs. The effective portion of a hedge pair. (iii) Non-significant equity exposures. Equity exposures, excluding significant investments in the capital of an unconsolidated institution in the form of common stock and exposures to an investment firm that would meet the definition of a traditional securitization were it not for the FDIC’s application of paragraph (8) of that definition in § 324.2 and has greater than immaterial leverage, to the extent that the aggregate adjusted carrying value of the exposures does not exceed 10 percent of the FDICsupervised institution’s total capital. (A) To compute the aggregate adjusted carrying value of an FDIC-supervised institution’s equity exposures for purposes of this section, the FDICsupervised institution may exclude equity exposures described in paragraphs (b)(1), (b)(2), (b)(3)(i), and (b)(3)(ii) of this section, the equity exposure in a hedge pair with the smaller adjusted carrying value, and a proportion of each equity exposure to an investment fund equal to the proportion of the assets of the investment fund that are not equity exposures or that meet the criterion of paragraph (b)(3)(i) of this section. If an FDIC-supervised institution does not know the actual holdings of the investment fund, the FDIC-supervised institution may calculate the proportion of the assets of the fund that are not equity exposures based on the terms of the prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. If the sum of the investment limits for all exposure classes within the fund exceeds 100 percent, the FDIC-supervised institution must assume for purposes of this section that the investment fund invests to the maximum extent possible in equity exposures. (B) When determining which of an FDIC-supervised institution’s equity exposures qualifies for a 100 percent risk weight under this section, an FDICsupervised institution first must include equity exposures to unconsolidated small business investment companies or held through consolidated small business investment companies described in section 302 of the Small Business Investment Act, then must include publicly traded equity exposures (including those held indirectly through investment funds), and then must include non-publicly traded equity exposures (including those held indirectly through investment funds). (4) 250 percent risk weight equity exposures. Significant investments in the capital of unconsolidated financial E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55563 (ii) Has greater than immaterial leverage is assigned a 600 percent risk weight. (c) Hedge transactions—(1) Hedge pair. A hedge pair is two equity exposures that form an effective hedge so long as each equity exposure is publicly traded or has a return that is primarily based on a publicly traded equity exposure. (2) Effective hedge. Two equity exposures form an effective hedge if the exposures either have the same remaining maturity or each has a remaining maturity of at least three months; the hedge relationship is formally documented in a prospective manner (that is, before the FDICsupervised institution acquires at least one of the equity exposures); the documentation specifies the measure of effectiveness (E) the FDIC-supervised institution will use for the hedge relationship throughout the life of the transaction; and the hedge relationship has an E greater than or equal to 0.8. An FDIC-supervised institution must measure E at least quarterly and must use one of three alternative measures of E: (i) Under the dollar-offset method of measuring effectiveness, the FDICsupervised institution must determine the ratio of value change (RVC). The RVC is the ratio of the cumulative sum of the periodic changes in value of one equity exposure to the cumulative sum of the periodic changes in the value of the other equity exposure. If RVC is positive, the hedge is not effective and E equals zero. If RVC is negative and greater than or equal to -1 (that is, between zero and -1), then E equals the absolute value of RVC. If RVC is negative and less than -1, then E equals 2 plus RVC. (ii) Under the variability-reduction method of measuring effectiveness: (iii) Under the regression method of measuring effectiveness, E equals the coefficient of determination of a regression in which the change in value of one exposure in a hedge pair is the dependent variable and the change in value of the other exposure in a hedge pair is the independent variable. However, if the estimated regression coefficient is positive, then the value of E is zero. (3) The effective portion of a hedge pair is E multiplied by the greater of the adjusted carrying values of the equity exposures forming a hedge pair. (4) The ineffective portion of a hedge pair is (1–E) multiplied by the greater of the adjusted carrying values of the equity exposures forming a hedge pair. publicly traded and non-publicly traded equity exposures (in accordance with paragraph (c) of this section) or by modeling only publicly traded equity exposures (in accordance with paragraphs (c) and (d) of this section). (b) Qualifying criteria. To qualify to use the IMA to calculate risk-weighted assets for equity exposures, an FDICsupervised institution must receive prior written approval from the FDIC. To receive such approval, the FDICsupervised institution must demonstrate to the FDIC’s satisfaction that the FDICsupervised institution meets the following criteria: (1) The FDIC-supervised institution must have one or more models that: (i) Assess the potential decline in value of its modeled equity exposures; (ii) Are commensurate with the size, complexity, and composition of the FDIC-supervised institution’s modeled equity exposures; and (iii) Adequately capture both general market risk and idiosyncratic risk. (2) The FDIC-supervised institution’s model must produce an estimate of potential losses for its modeled equity exposures that is no less than the estimate of potential losses produced by a VaR methodology employing a 99th percentile one-tailed confidence interval of the distribution of quarterly returns for a benchmark portfolio of equity exposures comparable to the FDICsupervised institution’s modeled equity exposures using a long-term sample period. (3) The number of risk factors and exposures in the sample and the data period used for quantification in the FDIC-supervised institution’s model and benchmarking exercise must be sufficient to provide confidence in the accuracy and robustness of the FDICsupervised institution’s estimates. (4) The FDIC-supervised institution’s model and benchmarking process must § 324.153 Internal models approach (IMA). (a) General. An FDIC-supervised institution may calculate its riskweighted asset amount for equity exposures using the IMA by modeling VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00225 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.045</GPH> emcdonald on DSK67QTVN1PROD with RULES2 institutions in the form of common stock that are not deducted from capital pursuant to § 324.22(b)(4) are assigned a 250 percent risk weight. (5) 300 percent risk weight equity exposures. A publicly traded equity exposure (other than an equity exposure described in paragraph (b)(6) of this section and including the ineffective portion of a hedge pair) is assigned a 300 percent risk weight. (6) 400 percent risk weight equity exposures. An equity exposure (other than an equity exposure described in paragraph (b)(6) of this section) that is not publicly traded is assigned a 400 percent risk weight. (7) 600 percent risk weight equity exposures. An equity exposure to an investment firm that: (i) Would meet the definition of a traditional securitization were it not for the FDIC’s application of paragraph (8) of that definition in § 324.2; and emcdonald on DSK67QTVN1PROD with RULES2 55564 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations incorporate data that are relevant in representing the risk profile of the FDICsupervised institution’s modeled equity exposures, and must include data from at least one equity market cycle containing adverse market movements relevant to the risk profile of the FDICsupervised institution’s modeled equity exposures. In addition, the FDICsupervised institution’s benchmarking exercise must be based on daily market prices for the benchmark portfolio. If the FDIC-supervised institution’s model uses a scenario methodology, the FDICsupervised institution must demonstrate that the model produces a conservative estimate of potential losses on the FDICsupervised institution’s modeled equity exposures over a relevant long-term market cycle. If the FDIC-supervised institution employs risk factor models, the FDIC-supervised institution must demonstrate through empirical analysis the appropriateness of the risk factors used. (5) The FDIC-supervised institution must be able to demonstrate, using theoretical arguments and empirical evidence, that any proxies used in the modeling process are comparable to the FDIC-supervised institution’s modeled equity exposures and that the FDICsupervised institution has made appropriate adjustments for differences. The FDIC-supervised institution must derive any proxies for its modeled equity exposures and benchmark portfolio using historical market data that are relevant to the FDIC-supervised institution’s modeled equity exposures and benchmark portfolio (or, where not, must use appropriately adjusted data), and such proxies must be robust estimates of the risk of the FDICsupervised institution’s modeled equity exposures. (c) Risk-weighted assets calculation for an FDIC-supervised institution using the IMA for publicly traded and nonpublicly traded equity exposures. If an FDIC-supervised institution models publicly traded and non-publicly traded equity exposures, the FDIC-supervised institution’s aggregate risk-weighted asset amount for its equity exposures is equal to the sum of: (1) The risk-weighted asset amount of each equity exposure that qualifies for a 0 percent, 20 percent, or 100 percent risk weight under § 324.152(b)(1) through (b)(3)(i) (as determined under § 324.152) and each equity exposure to an investment fund (as determined under § 324.154); and (2) The greater of: (i) The estimate of potential losses on the FDIC-supervised institution’s equity exposures (other than equity exposures referenced in paragraph (c)(1) of this VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 section) generated by the FDICsupervised institution’s internal equity exposure model multiplied by 12.5; or (ii) The sum of: (A) 200 percent multiplied by the aggregate adjusted carrying value of the FDIC-supervised institution’s publicly traded equity exposures that do not belong to a hedge pair, do not qualify for a 0 percent, 20 percent, or 100 percent risk weight under § 324.152(b)(1) through (b)(3)(i), and are not equity exposures to an investment fund; (B) 200 percent multiplied by the aggregate ineffective portion of all hedge pairs; and (C) 300 percent multiplied by the aggregate adjusted carrying value of the FDIC-supervised institution’s equity exposures that are not publicly traded, do not qualify for a 0 percent, 20 percent, or 100 percent risk weight under § 324.152(b)(1) through (b)(3)(i), and are not equity exposures to an investment fund. (d) Risk-weighted assets calculation for an FDIC-supervised institution using the IMA only for publicly traded equity exposures. If an FDIC-supervised institution models only publicly traded equity exposures, the FDIC-supervised institution’s aggregate risk-weighted asset amount for its equity exposures is equal to the sum of: (1) The risk-weighted asset amount of each equity exposure that qualifies for a 0 percent, 20 percent, or 100 percent risk weight under §§ 324.152(b)(1) through (b)(3)(i) (as determined under § 324.152), each equity exposure that qualifies for a 400 percent risk weight under § 324.152(b)(5) or a 600 percent risk weight under § 324.152(b)(6) (as determined under § 324.152), and each equity exposure to an investment fund (as determined under § 324.154); and (2) The greater of: (i) The estimate of potential losses on the FDIC-supervised institution’s equity exposures (other than equity exposures referenced in paragraph (d)(1) of this section) generated by the FDICsupervised institution’s internal equity exposure model multiplied by 12.5; or (ii) The sum of: (A) 200 percent multiplied by the aggregate adjusted carrying value of the FDIC-supervised institution’s publicly traded equity exposures that do not belong to a hedge pair, do not qualify for a 0 percent, 20 percent, or 100 percent risk weight under § 324.152(b)(1) through (b)(3)(i), and are not equity exposures to an investment fund; and (B) 200 percent multiplied by the aggregate ineffective portion of all hedge pairs. PO 00000 Frm 00226 Fmt 4701 Sfmt 4700 § 324.154 funds. Equity exposures to investment (a) Available approaches. (1) Unless the exposure meets the requirements for a community development equity exposure in § 324.152(b)(3)(i), an FDICsupervised institution must determine the risk-weighted asset amount of an equity exposure to an investment fund under the full look-through approach in paragraph (b) of this section, the simple modified look-through approach in paragraph (c) of this section, or the alternative modified look-through approach in paragraph (d) of this section. (2) The risk-weighted asset amount of an equity exposure to an investment fund that meets the requirements for a community development equity exposure in § 324.152(b)(3)(i) is its adjusted carrying value. (3) If an equity exposure to an investment fund is part of a hedge pair and the FDIC-supervised institution does not use the full look-through approach, the FDIC-supervised institution may use the ineffective portion of the hedge pair as determined under § 324.152(c) as the adjusted carrying value for the equity exposure to the investment fund. The risk-weighted asset amount of the effective portion of the hedge pair is equal to its adjusted carrying value. (b) Full look-through approach. An FDIC-supervised institution that is able to calculate a risk-weighted asset amount for its proportional ownership share of each exposure held by the investment fund (as calculated under this subpart E of this part as if the proportional ownership share of each exposure were held directly by the FDIC-supervised institution) may either: (1) Set the risk-weighted asset amount of the FDIC-supervised institution’s exposure to the fund equal to the product of: (i) The aggregate risk-weighted asset amounts of the exposures held by the fund as if they were held directly by the FDIC-supervised institution; and (ii) The FDIC-supervised institution’s proportional ownership share of the fund; or (2) Include the FDIC-supervised institution’s proportional ownership share of each exposure held by the fund in the FDIC-supervised institution’s IMA. (c) Simple modified look-through approach. Under this approach, the risk-weighted asset amount for an FDICsupervised institution’s equity exposure to an investment fund equals the adjusted carrying value of the equity exposure multiplied by the highest risk weight assigned according to subpart D E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations of this part that applies to any exposure the fund is permitted to hold under its prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments (excluding derivative contracts that are used for hedging rather than speculative purposes and that do not constitute a material portion of the fund’s exposures). (d) Alternative modified look-through approach. Under this approach, an FDIC-supervised institution may assign the adjusted carrying value of an equity exposure to an investment fund on a pro rata basis to different risk weight categories assigned according to subpart D of this part based on the investment limits in the fund’s prospectus, partnership agreement, or similar contract that defines the fund’s permissible investments. The riskweighted asset amount for the FDICsupervised institution’s equity exposure to the investment fund equals the sum of each portion of the adjusted carrying value assigned to an exposure class multiplied by the applicable risk weight. If the sum of the investment limits for all exposure types within the fund exceeds 100 percent, the FDICsupervised institution must assume that the fund invests to the maximum extent permitted under its investment limits in the exposure type with the highest risk weight under subpart D of this part, and continues to make investments in order of the exposure type with the next highest risk weight under subpart D of this part until the maximum total investment level is reached. If more than one exposure type applies to an exposure, the FDIC-supervised institution must use the highest applicable risk weight. An FDICsupervised institution may exclude derivative contracts held by the fund that are used for hedging rather than for speculative purposes and do not constitute a material portion of the fund’s exposures. emcdonald on DSK67QTVN1PROD with RULES2 § 324.155 Equity derivative contracts. (a) Under the IMA, in addition to holding risk-based capital against an equity derivative contract under this part, an FDIC-supervised institution must hold risk-based capital against the counterparty credit risk in the equity derivative contract by also treating the equity derivative contract as a wholesale exposure and computing a supplemental risk-weighted asset amount for the contract under § 324.132. (b) Under the SRWA, an FDICsupervised institution may choose not to hold risk-based capital against the counterparty credit risk of equity derivative contracts, as long as it does VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 so for all such contracts. Where the equity derivative contracts are subject to a qualified master netting agreement, an FDIC-supervised institution using the SRWA must either include all or exclude all of the contracts from any measure used to determine counterparty credit risk exposure. §§ 324.161 through 324.160 [Reserved] Risk-Weighted Assets for Operational Risk § 324.161 Qualification requirements for incorporation of operational risk mitigants. (a) Qualification to use operational risk mitigants. An FDIC-supervised institution may adjust its estimate of operational risk exposure to reflect qualifying operational risk mitigants if: (1) The FDIC-supervised institution’s operational risk quantification system is able to generate an estimate of the FDICsupervised institution’s operational risk exposure (which does not incorporate qualifying operational risk mitigants) and an estimate of the FDIC-supervised institution’s operational risk exposure adjusted to incorporate qualifying operational risk mitigants; and (2) The FDIC-supervised institution’s methodology for incorporating the effects of insurance, if the FDICsupervised institution uses insurance as an operational risk mitigant, captures through appropriate discounts to the amount of risk mitigation: (i) The residual term of the policy, where less than one year; (ii) The cancellation terms of the policy, where less than one year; (iii) The policy’s timeliness of payment; (iv) The uncertainty of payment by the provider of the policy; and (v) Mismatches in coverage between the policy and the hedged operational loss event. (b) Qualifying operational risk mitigants. Qualifying operational risk mitigants are: (1) Insurance that: (i) Is provided by an unaffiliated company that the FDIC-supervised institution deems to have strong capacity to meet its claims payment obligations and the obligor rating category to which the FDIC-supervised institution assigns the company is assigned a PD equal to or less than 10 basis points; (ii) Has an initial term of at least one year and a residual term of more than 90 days; (iii) Has a minimum notice period for cancellation by the provider of 90 days; (iv) Has no exclusions or limitations based upon regulatory action or for the receiver or liquidator of a failed depository institution; and PO 00000 Frm 00227 Fmt 4701 Sfmt 4700 55565 (v) Is explicitly mapped to a potential operational loss event; (2) Operational risk mitigants other than insurance for which the FDIC has given prior written approval. In evaluating an operational risk mitigant other than insurance, the FDIC will consider whether the operational risk mitigant covers potential operational losses in a manner equivalent to holding total capital. § 324.162 Mechanics of risk-weighted asset calculation. (a) If an FDIC-supervised institution does not qualify to use or does not have qualifying operational risk mitigants, the FDIC-supervised institution’s dollar risk-based capital requirement for operational risk is its operational risk exposure minus eligible operational risk offsets (if any). (b) If an FDIC-supervised institution qualifies to use operational risk mitigants and has qualifying operational risk mitigants, the FDIC-supervised institution’s dollar risk-based capital requirement for operational risk is the greater of: (1) The FDIC-supervised institution’s operational risk exposure adjusted for qualifying operational risk mitigants minus eligible operational risk offsets (if any); or (2) 0.8 multiplied by the difference between: (i) The FDIC-supervised institution’s operational risk exposure; and (ii) Eligible operational risk offsets (if any). (c) The FDIC-supervised institution’s risk-weighted asset amount for operational risk equals the FDICsupervised institution’s dollar riskbased capital requirement for operational risk determined under sections 162(a) or (b) multiplied by 12.5. §§ 324.163 through 324.170 [ Reserved] Disclosures § 324.171 Purpose and scope. §§ 324.171 through 324.173 establish public disclosure requirements related to the capital requirements of an FDICsupervised institution that is an advanced approaches FDIC-supervised institution. § 324.172 Disclosure requirements. (a) An FDIC-supervised institution that is an advanced approaches FDICsupervised institution that has completed the parallel run process and that has received notification from the FDIC pursuant to § 324.121(d) must publicly disclose each quarter its total and tier 1 risk-based capital ratios and their components as calculated under E:\FR\FM\10SER2.SGM 10SER2 55566 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations this subpart (that is, common equity tier 1 capital, additional tier 1 capital, tier 2 capital, total qualifying capital, and total risk-weighted assets). (b) An FDIC-supervised institution that is an advanced approaches FDICsupervised institution that has completed the parallel run process and that has received notification from the FDIC pursuant to section § 324.121(d) must comply with paragraph (c) of this section unless it is a consolidated subsidiary of a bank holding company, savings and loan holding company, or depository institution that is subject to these disclosure requirements or a subsidiary of a non-U.S. banking organization that is subject to comparable public disclosure requirements in its home jurisdiction. (c)(1) An FDIC-supervised institution described in paragraph (b) of this section must provide timely public disclosures each calendar quarter of the information in the applicable tables in § 324.173. If a significant change occurs, such that the most recent reported amounts are no longer reflective of the FDIC-supervised institution’s capital adequacy and risk profile, then a brief discussion of this change and its likely impact must be disclosed as soon as practicable thereafter. Qualitative disclosures that typically do not change each quarter (for example, a general summary of the FDIC-supervised institution’s risk management objectives and policies, reporting system, and definitions) may be disclosed annually after the end of the fourth calendar quarter, provided that any significant changes to these are disclosed in the interim. Management may provide all of the disclosures required by this subpart in one place on the FDIC-supervised institution’s public Web site or may provide the disclosures in more than one public financial report or other regulatory reports, provided that the FDIC-supervised institution publicly provides a summary table specifically indicating the location(s) of all such disclosures. (2) An FDIC-supervised institution described in paragraph (b) of this section must have a formal disclosure policy approved by the board of directors that addresses its approach for determining the disclosures it makes. The policy must address the associated internal controls and disclosure controls and procedures. The board of directors and senior management are responsible for establishing and maintaining an effective internal control structure over financial reporting, including the disclosures required by this subpart, and must ensure that appropriate review of the disclosures takes place. One or more senior officers of the FDICsupervised institution must attest that the disclosures meet the requirements of this subpart. (3) If an FDIC-supervised institution described in paragraph (b) of this section believes that disclosure of specific commercial or financial information would prejudice seriously its position by making public information that is either proprietary or confidential in nature, the FDICsupervised institution is not required to disclose those specific items, but must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed. § 324.173 Disclosures by certain advanced approaches FDIC-supervised institutions. (a) Except as provided in § 324.172(b), an FDIC-supervised institution described in § 324.172(b) must make the disclosures described in Tables 1 through 12 to § 324.173. The FDICsupervised institution must make these disclosures publicly available for each of the last three years (that is, twelve quarters) or such shorter period beginning on January 1, 2014. TABLE 1 TO § 324.173—SCOPE OF APPLICATION Qualitative disclosures .......................... (a) ................................ (b) ................................ (c) ................................ Quantitative disclosures ........................ (d) ................................ ((e) .............................. The name of the top corporate entity in the group to which subpart E of this part applies. A brief description of the differences in the basis for consolidating entities 1 for accounting and regulatory purposes, with a description of those entities: (1) That are fully consolidated; (2) That are deconsolidated and deducted from total capital; (3) For which the total capital requirement is deducted; and (4) That are neither consolidated nor deducted (for example, where the investment in the entity is assigned a risk weight in accordance with this subpart E). Any restrictions, or other major impediments, on transfer of funds or total capital within the group. The aggregate amount of surplus capital of insurance subsidiaries included in the total capital of the consolidated group. The aggregate amount by which actual total capital is less than the minimum total capital requirement in all subsidiaries, with total capital requirements and the name(s) of the subsidiaries with such deficiencies. 1 Such entities include securities, insurance and other financial subsidiaries, commercial subsidiaries (where permitted), and significant minority equity investments in insurance, financial and commercial entities. TABLE 2 TO § 324.173—CAPITAL STRUCTURE emcdonald on DSK67QTVN1PROD with RULES2 Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00228 Summary information on the terms and conditions of the main features of all regulatory capital instruments. The amount of common equity tier 1 capital, with separate disclosure of: (1) Common stock and related surplus; (2) Retained earnings; (3) Common equity minority interest; (4) AOCI (net of tax) and other reserves; and (5) Regulatory adjustments and deductions made to common equity tier 1 capital. Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55567 TABLE 2 TO § 324.173—CAPITAL STRUCTURE—Continued (c) ................................ (d) ................................ The amount of tier 1 capital, with separate disclosure of: (1) Additional tier 1 capital elements, including additional tier 1 capital instruments and tier 1 minority interest not included in common equity tier 1 capital; and (2) Regulatory adjustments and deductions made to tier 1 capital. The amount of total capital, with separate disclosure of: (1) Tier 2 capital elements, including tier 2 capital instruments and total capital minority interest not included in tier 1 capital; and (2) Regulatory adjustments and deductions made to total capital. TABLE 3 TO § 324.173—CAPITAL ADEQUACY Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ (c) ................................ (d) ................................ (e) ................................ (f) ................................. A summary discussion of the FDIC-supervised institution’s approach to assessing the adequacy of its capital to support current and future activities. Risk-weighted assets for credit risk from: (1) Wholesale exposures; (2) Residential mortgage exposures; (3) Qualifying revolving exposures; (4) Other retail exposures; (5) Securitization exposures; (6) Equity exposures: (7) Equity exposures subject to the simple risk weight approach; and (8) Equity exposures subject to the internal models approach. Standardized market risk-weighted assets and advanced market risk-weighted assets as calculated under subpart F of this part: (1) Standardized approach for specific risk; and (2) Internal models approach for specific risk. Risk-weighted assets for operational risk. Common equity tier 1, tier 1 and total risk-based capital ratios: (1) For the top consolidated group; and (2) For each depository institution subsidiary. Total risk-weighted assets. TABLE 4 TO § 324.173—CAPITAL CONSERVATION AND COUNTERCYCLICAL CAPITAL BUFFERS Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ (c) ................................ (d) ................................ emcdonald on DSK67QTVN1PROD with RULES2 (b) General qualitative disclosure requirement. For each separate risk area described in Tables 5 through 12 to § 324.173, the FDIC-supervised institution must describe its risk management objectives and policies, including: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 The FDIC-supervised institution must publicly disclose the geographic breakdown of its private sector credit exposures used in the calculation of the countercyclical capital buffer. At least quarterly, the FDIC-supervised institution must calculate and publicly disclose the capital conservation buffer and the countercyclical capital buffer as described under § 324.11 of subpart B. At least quarterly, the FDIC-supervised institution must calculate and publicly disclose the buffer retained income of the FDIC-supervised institution, as described under § 324.11 of subpart B. At least quarterly, the FDIC-supervised institution must calculate and publicly disclose any limitations it has on distributions and discretionary bonus payments resulting from the capital conservation buffer and the countercyclical capital buffer framework described under § 324.11 of subpart B, including the maximum payout amount for the quarter. (1) Strategies and processes; (2) The structure and organization of the relevant risk management function; (3) The scope and nature of risk reporting and/or measurement systems; and PO 00000 Frm 00229 Fmt 4701 Sfmt 4700 (4) Policies for hedging and/or mitigating risk and strategies and processes for monitoring the continuing effectiveness of hedges/mitigants. E:\FR\FM\10SER2.SGM 10SER2 55568 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 51 TO § 324.173—CREDIT RISK: GENERAL DISCLOSURES Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ (c) ................................ (d) ................................ (e) ................................ (f) ................................. (g) ................................ (h) ................................ The general qualitative disclosure requirement with respect to credit risk (excluding counterparty credit risk disclosed in accordance with Table 7 to § 324.173), including: (1) Policy for determining past due or delinquency status; (2) Policy for placing loans on nonaccrual; (3) Policy for returning loans to accrual status; (4) Definition of and policy for identifying impaired loans (for financial accounting purposes). (5) Description of the methodology that the entity uses to estimate its allowance for loan and lease losses, including statistical methods used where applicable; (6) Policy for charging-off uncollectible amounts; and (7) Discussion of the FDIC-supervised institution’s credit risk management policy Total credit risk exposures and average credit risk exposures, after accounting offsets in accordance with GAAP,2 without taking into account the effects of credit risk mitigation techniques (for example, collateral and netting not permitted under GAAP), over the period categorized by major types of credit exposure. For example, FDIC-supervised institutions could use categories similar to that used for financial statement purposes. Such categories might include, for instance: (1) Loans, off-balance sheet commitments, and other non-derivative off-balance sheet exposures; (2) Debt securities; and (3) OTC derivatives. Geographic 3 distribution of exposures, categorized in significant areas by major types of credit exposure. Industry or counterparty type distribution of exposures, categorized by major types of credit exposure. By major industry or counterparty type: (1) Amount of impaired loans for which there was a related allowance under GAAP; (2) Amount of impaired loans for which there was no related allowance under GAAP; (3) Amount of loans past due 90 days and on nonaccrual; (4) Amount of loans past due 90 days and still accruing; 4 (5) The balance in the allowance for loan and lease losses at the end of each period, disaggregated on the basis of the entity’s impairment method. To disaggregate the information required on the basis of impairment methodology, an entity shall separately disclose the amounts based on the requirements in GAAP; and (6) Charge-offs during the period. Amount of impaired loans and, if available, the amount of past due loans categorized by significant geographic areas including, if practical, the amounts of allowances related to each geographical area,5 further categorized as required by GAAP. Reconciliation of changes in ALLL.6 Remaining contractual maturity breakdown (for example, one year or less) of the whole portfolio, categorized by credit exposure. 1 Table 5 to § 324.173 does not cover equity exposures, which should be reported in Table 9 to § 324.173. for example, ASC Topic 815–10 and 210–20, as they may be amended from time to time. areas may comprise individual countries, groups of countries, or regions within countries. An FDIC-supervised institution might choose to define the geographical areas based on the way the company’s portfolio is geographically managed. The criteria used to allocate the loans to geographical areas must be specified. 4 An FDIC-supervised institution is encouraged also to provide an analysis of the aging of past-due loans. 5 The portion of the general allowance that is not allocated to a geographical area should be disclosed separately. 6 The reconciliation should include the following: a description of the allowance; the opening balance of the allowance; charge-offs taken against the allowance during the period; amounts provided (or reversed) for estimated probable loan losses during the period; any other adjustments (for example, exchange rate differences, business combinations, acquisitions and disposals of subsidiaries), including transfers between allowances; and the closing balance of the allowance. Charge-offs and recoveries that have been recorded directly to the income statement should be disclosed separately. 2 See, 3 Geographical emcdonald on DSK67QTVN1PROD with RULES2 TABLE 6 TO § 324.173—CREDIT RISK: DISCLOSURES FOR PORTFOLIOS SUBJECT TO IRB RISK-BASED CAPITAL FORMULAS Qualitative disclosures .......................... VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (a) ................................ PO 00000 Frm 00230 Explanation and review of the: (1) Structure of internal rating systems and relation between internal and external ratings; (2) Use of risk parameter estimates other than for regulatory capital purposes; (3) Process for managing and recognizing credit risk mitigation (see Table 8 to § 324.173); and (4) Control mechanisms for the rating system, including discussion of independence, accountability, and rating systems review. Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55569 TABLE 6 TO § 324.173—CREDIT RISK: DISCLOSURES FOR PORTFOLIOS SUBJECT TO IRB RISK-BASED CAPITAL FORMULAS—Continued (b) ................................ Quantitative disclosures: risk assessment. (c) ................................ Quantitative disclosures: historical results. (d) ................................ (e) ................................ (1) Description of the internal ratings process, provided separately for the following: (i) Wholesale category; (ii) Retail subcategories; (iii) Residential mortgage exposures; (iv) Qualifying revolving exposures; and (v) Other retail exposures. (2) For each category and subcategory above the description should include: (i) The types of exposure included in the category/subcategories; and (ii) The definitions, methods and data for estimation and validation of PD, LGD, and EAD, including assumptions employed in the derivation of these variables.1 (1) For wholesale exposures, present the following information across a sufficient number of PD grades (including default) to allow for a meaningful differentiation of credit risk: 2 (i) Total EAD; 3 (ii) Exposure-weighted average LGD (percentage); (iii) Exposure-weighted average risk weight; and (iv) Amount of undrawn commitments and exposure-weighted average EAD including average drawdowns prior to default for wholesale exposures. (2) For each retail subcategory, present the disclosures outlined above across a sufficient number of segments to allow for a meaningful differentiation of credit risk. Actual losses in the preceding period for each category and subcategory and how this differs from past experience. A discussion of the factors that impacted the loss experience in the preceding period—for example, has the FDIC-supervised institution experienced higher than average default rates, loss rates or EADs. The FDIC-supervised institution’s estimates compared against actual outcomes over a longer period.4 At a minimum, this should include information on estimates of losses against actual losses in the wholesale category and each retail subcategory over a period sufficient to allow for a meaningful assessment of the performance of the internal rating processes for each category/subcategory.5 Where appropriate, the FDIC-supervised institution should further decompose this to provide analysis of PD, LGD, and EAD outcomes against estimates provided in the quantitative risk assessment disclosures above.6 1 This disclosure item does not require a detailed description of the model in full—it should provide the reader with a broad overview of the model approach, describing definitions of the variables and methods for estimating and validating those variables set out in the quantitative risk disclosures below. This should be done for each of the four category/subcategories. The FDIC-supervised institution must disclose any significant differences in approach to estimating these variables within each category/subcategories. 2 The PD, LGD and EAD disclosures in Table 6 (c) to § 324.173 should reflect the effects of collateral, qualifying master netting agreements, eligible guarantees and eligible credit derivatives as defined under this part. Disclosure of each PD grade should include the exposure-weighted average PD for each grade. Where an FDIC-supervised institution aggregates PD grades for the purposes of disclosure, this should be a representative breakdown of the distribution of PD grades used for regulatory capital purposes. 3 Outstanding loans and EAD on undrawn commitments can be presented on a combined basis for these disclosures. 4 These disclosures are a way of further informing the reader about the reliability of the information provided in the ‘‘quantitative disclosures: risk assessment’’ over the long run. The disclosures are requirements from year-end 2010; in the meantime, early adoption is encouraged. The phased implementation is to allow an FDIC-supervised institution sufficient time to build up a longer run of data that will make these disclosures meaningful. 5 This disclosure item is not intended to be prescriptive about the period used for this assessment. Upon implementation, it is expected that an FDIC-supervised institution would provide these disclosures for as long a set of data as possible—for example, if an FDIC-supervised institution has 10 years of data, it might choose to disclose the average default rates for each PD grade over that 10-year period. Annual amounts need not be disclosed. 6 An FDIC-supervised institution must provide this further decomposition where it will allow users greater insight into the reliability of the estimates provided in the ‘‘quantitative disclosures: risk assessment.’’ In particular, it must provide this information where there are material differences between its estimates of PD, LGD or EAD compared to actual outcomes over the long run. The FDIC-supervised institution must also provide explanations for such differences. TABLE 7 TO § 324.173—GENERAL DISCLOSURE FOR COUNTERPARTY CREDIT RISK OF OTC DERIVATIVE CONTRACTS, REPO-STYLE TRANSACTIONS, AND ELIGIBLE MARGIN LOANS emcdonald on DSK67QTVN1PROD with RULES2 Qualitative Disclosures .......................... VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (a) ................................ PO 00000 Frm 00231 The general qualitative disclosure requirement with respect to OTC derivatives, eligible margin loans, and repo-style transactions, including: (1) Discussion of methodology used to assign economic capital and credit limits for counterparty credit exposures; (2) Discussion of policies for securing collateral, valuing and managing collateral, and establishing credit reserves; (3) Discussion of the primary types of collateral taken; (4) Discussion of policies with respect to wrong-way risk exposures; and (5) Discussion of the impact of the amount of collateral the FDIC-supervised institution would have to provide if the FDIC-supervised institution were to receive a credit rating downgrade. Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55570 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 7 TO § 324.173—GENERAL DISCLOSURE FOR COUNTERPARTY CREDIT RISK OF OTC DERIVATIVE CONTRACTS, REPO-STYLE TRANSACTIONS, AND ELIGIBLE MARGIN LOANS—Continued Quantitative Disclosures ....................... (b) ................................ (c) ................................ (d) ................................ Gross positive fair value of contracts, netting benefits, netted current credit exposure, collateral held (including type, for example, cash, government securities), and net unsecured credit exposure.1 Also report measures for EAD used for regulatory capital for these transactions, the notional value of credit derivative hedges purchased for counterparty credit risk protection, and, for FDIC-supervised institutions not using the internal models methodology in § 324.132(d), the distribution of current credit exposure by types of credit exposure.2 Notional amount of purchased and sold credit derivatives, segregated between use for the FDIC-supervised institution’s own credit portfolio and for its intermediation activities, including the distribution of the credit derivative products used, categorized further by protection bought and sold within each product group. The estimate of alpha if the FDIC-supervised institution has received supervisory approval to estimate alpha. 1 Net unsecured credit exposure is the credit exposure after considering the benefits from legally enforceable netting agreements and collateral arrangements, without taking into account haircuts for price volatility, liquidity, etc. 2 This may include interest rate derivative contracts, foreign exchange derivative contracts, equity derivative contracts, credit derivatives, commodity or other derivative contracts, repo-style transactions, and eligible margin loans. TABLE 8 TO § 324.173—CREDIT RISK MITIGATION 1 2 Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ The general qualitative disclosure requirement with respect to credit risk mitigation, including: (1) Policies and processes for, and an indication of the extent to which the FDIC-supervised institution uses, on- or off-balance sheet netting; (2) Policies and processes for collateral valuation and management; (3) A description of the main types of collateral taken by the FDIC-supervised institution; (4) The main types of guarantors/credit derivative counterparties and their creditworthiness; and (5) Information about (market or credit) risk concentrations within the mitigation taken. For each separately disclosed portfolio, the total exposure (after, where applicable, on- or off-balance sheet netting) that is covered by guarantees/credit derivatives. 1 At a minimum, an FDIC-supervised institution must provide the disclosures in Table 8 to § 324.173 in relation to credit risk mitigation that has been recognized for the purposes of reducing capital requirements under this subpart. Where relevant, FDIC-supervised institutions are encouraged to give further information about mitigants that have not been recognized for that purpose. 2 Credit derivatives and other credit mitigation that are treated for the purposes of this subpart as synthetic securitization exposures should be excluded from the credit risk mitigation disclosures (in Table 8 to § 324.173) and included within those relating to securitization (in Table 9 to § 324.173). TABLE 9 TO § 324.173—SECURITIZATION emcdonald on DSK67QTVN1PROD with RULES2 Qualitative disclosures .......................... VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (a) ................................ PO 00000 Frm 00232 The general qualitative disclosure requirement with respect to securitization (including synthetic securitizations), including a discussion of: (1) The FDIC-supervised institution’s objectives for securitizing assets, including the extent to which these activities transfer credit risk of the underlying exposures away from the FDIC-supervised institution to other entities and including the type of risks assumed and retained with resecuritization activity; 1 (2) The nature of the risks (e.g. liquidity risk) inherent in the securitized assets; (3) The roles played by the FDIC-supervised institution in the securitization process 2 and an indication of the extent of the FDIC-supervised institution’s involvement in each of them; (4) The processes in place to monitor changes in the credit and market risk of securitization exposures including how those processes differ for resecuritization exposures; (5) The FDIC-supervised institution’s policy for mitigating the credit risk retained through securitization and resecuritization exposures; and (6) The risk-based capital approaches that the FDIC-supervised institution follows for its securitization exposures including the type of securitization exposure to which each approach applies. Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55571 TABLE 9 TO § 324.173—SECURITIZATION—Continued (b) ................................ (c) ................................ (d) ................................ Quantitative disclosures ........................ (e) ................................ (f) ................................. (g) ................................ (h) ................................ (i) ................................. (j) ................................. emcdonald on DSK67QTVN1PROD with RULES2 (k) ................................ A list of: (1) The type of securitization SPEs that the FDIC-supervised institution, as sponsor, uses to securitize third-party exposures. The FDIC-supervised institution must indicate whether it has exposure to these SPEs, either on- or off- balance sheet; and (2) Affiliated entities: (i) That the FDIC-supervised institution manages or advises; and (ii) That invest either in the securitization exposures that the FDIC-supervised institution has securitized or in securitization SPEs that the FDIC-supervised institution sponsors.3 Summary of the FDIC-supervised institution’s accounting policies for securitization activities, including: (1) Whether the transactions are treated as sales or financings; (2) Recognition of gain-on-sale; (3) Methods and key assumptions and inputs applied in valuing retained or purchased interests; (4) Changes in methods and key assumptions and inputs from the previous period for valuing retained interests and impact of the changes; (5) Treatment of synthetic securitizations; (6) How exposures intended to be securitized are valued and whether they are recorded under subpart E of this part; and (7) Policies for recognizing liabilities on the balance sheet for arrangements that could require the FDIC-supervised institution to provide financial support for securitized assets. An explanation of significant changes to any of the quantitative information set forth below since the last reporting period. The total outstanding exposures securitized 4 by the FDIC-supervised institution in securitizations that meet the operational criteria in § 324.141 (categorized into traditional/synthetic), by underlying exposure type 5 separately for securitizations of third-party exposures for which the FDIC-supervised institution acts only as sponsor. For exposures securitized by the FDIC-supervised institution in securitizations that meet the operational criteria in § 324.141: (1) Amount of securitized assets that are impaired 6/past due categorized by exposure type; and (2) Losses recognized by the FDIC-supervised institution during the current period categorized by exposure type.7 The total amount of outstanding exposures intended to be securitized categorized by exposure type. Aggregate amount of: (1) On-balance sheet securitization exposures retained or purchased categorized by exposure type; and (2) Off-balance sheet securitization exposures categorized by exposure type. (1) Aggregate amount of securitization exposures retained or purchased and the associated capital requirements for these exposures, categorized between securitization and resecuritization exposures, further categorized into a meaningful number of risk weight bands and by risk-based capital approach (e.g. SA, SFA, or SSFA). (2) Exposures that have been deducted entirely from tier 1 capital, CEIOs deducted from total capital (as described in § 324.42(a)(1)), and other exposures deducted from total capital should be disclosed separately by exposure type. Summary of current year’s securitization activity, including the amount of exposures securitized (by exposure type), and recognized gain or loss on sale by asset type. Aggregate amount of resecuritization exposures retained or purchased categorized according to: (1) Exposures to which credit risk mitigation is applied and those not applied; and (2) Exposures to guarantors categorized according to guarantor creditworthiness categories or guarantor name. 1 The FDIC-supervised institution must describe the structure of resecuritizations in which it participates; this description must be provided for the main categories of resecuritization products in which the FDIC-supervised institution is active. 2 For example, these roles would include originator, investor, servicer, provider of credit enhancement, sponsor, liquidity provider, or swap provider. 3 For example, money market mutual funds should be listed individually, and personal and private trusts, should be noted collectively. 4 ‘‘Exposures securitized’’ include underlying exposures originated by the FDIC-supervised institution, whether generated by them or purchased, and recognized in the balance sheet, from third parties, and third-party exposures included in sponsored transactions. Securitization transactions (including underlying exposures originally on the FDIC-supervised institution’s balance sheet and underlying exposures acquired by the FDIC-supervised institution from third-party entities) in which the originating bank does not retain any securitization exposure should be shown separately but need only be reported for the year of inception. 5 An FDIC-supervised institution is required to disclose exposures regardless of whether there is a capital charge under this part. 6 An FDIC-supervised institution must include credit-related other than temporary impairment (OTTI). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00233 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55572 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 7 For example, charge-offs/allowances (if the assets remain on the FDIC-supervised institution’s balance sheet) or credit-related OTTI of I/O strips and other retained residual interests, as well as recognition of liabilities for probable future financial support required of the FDIC-supervised institution with respect to securitized assets. TABLE 10 TO § 324.173—OPERATIONAL RISK Qualitative disclosures .......................... (a) ................................ (b) ................................ (c) ................................ The general qualitative disclosure requirement for operational risk. Description of the AMA, including a discussion of relevant internal and external factors considered in the FDIC-supervised institution’s measurement approach. A description of the use of insurance for the purpose of mitigating operational risk. TABLE 11 TO § 324.173—EQUITIES NOT SUBJECT TO SUBPART F OF THIS PART Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ (c) ................................ (d) ................................ (e) ................................ (f) ................................. The general qualitative disclosure requirement with respect to the equity risk of equity holdings not subject to subpart F of this part, including: (1) Differentiation between holdings on which capital gains are expected and those held for other objectives, including for relationship and strategic reasons; and (2) Discussion of important policies covering the valuation of and accounting for equity holdings not subject to subpart F of this part. This includes the accounting methodology and valuation methodologies used, including key assumptions and practices affecting valuation as well as significant changes in these practices. Carrying value on the balance sheet of equity investments, as well as the fair value of those investments. The types and nature of investments, including the amount that is: (1) Publicly traded; and (2) Non-publicly traded. The cumulative realized gains (losses) arising from sales and liquidations in the reporting period. (1) Total unrealized gains (losses) 1 (2) Total latent revaluation gains (losses) 2 (3) Any amounts of the above included in tier 1 and/or tier 2 capital. Capital requirements categorized by appropriate equity groupings, consistent with the FDIC-supervised institution’s methodology, as well as the aggregate amounts and the type of equity investments subject to any supervisory transition regarding total capital requirements.3 1 Unrealized gains (losses) recognized in the balance sheet but not through earnings. gains (losses) not recognized either in the balance sheet or through earnings. disclosure must include a breakdown of equities that are subject to the 0 percent, 20 percent, 100 percent, 300 percent, 400 percent, and 600 percent risk weights, as applicable. 2 Unrealized 3 This TABLE 12 TO § 324.173—INTEREST RATE RISK FOR NON-TRADING ACTIVITIES Qualitative disclosures .......................... (a) ................................ Quantitative disclosures ........................ (b) ................................ §§ 324.174 through 234.200 [Reserved] Subpart F—Risk-Weighted Assets— Market Risk emcdonald on DSK67QTVN1PROD with RULES2 § 324.201 Purpose, applicability, and reservation of authority. (a) Purpose. This subpart F establishes risk-based capital requirements for FDIC-supervised institutions with significant exposure to market risk, provides methods for these FDICsupervised institutions to calculate their standardized measure for market risk and, if applicable, advanced measure for VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 The general qualitative disclosure requirement, including the nature of interest rate risk for non-trading activities and key assumptions, including assumptions regarding loan prepayments and behavior of non-maturity deposits, and frequency of measurement of interest rate risk for non-trading activities. The increase (decline) in earnings or economic value (or relevant measure used by management) for upward and downward rate shocks according to management’s method for measuring interest rate risk for non-trading activities, categorized by currency (as appropriate). market risk, and establishes public disclosure requirements. (b) Applicability. (1) This subpart F applies to any FDIC-supervised institution with aggregate trading assets and trading liabilities (as reported in the FDIC-supervised institution’s most recent quarterly Call Report), equal to: (i) 10 percent or more of quarter-end total assets as reported on the most recent quarterly Call Report; or (ii) $1 billion or more. (2) The FDIC may apply this subpart to any FDIC-supervised institution if the PO 00000 Frm 00234 Fmt 4701 Sfmt 4700 FDIC deems it necessary or appropriate because of the level of market risk of the FDIC-supervised institution or to ensure safe and sound banking practices. (3) The FDIC may exclude an FDICsupervised institution that meets the criteria of paragraph (b)(1) of this section from application of this subpart if the FDIC determines that the exclusion is appropriate based on the level of market risk of the FDICsupervised institution and is consistent with safe and sound banking practices. E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations (c) Reservation of authority (1) The FDIC may require an FDIC-supervised institution to hold an amount of capital greater than otherwise required under this subpart if the FDIC determines that the FDIC-supervised institution’s capital requirement for market risk as calculated under this subpart is not commensurate with the market risk of the FDIC-supervised institution’s covered positions. In making determinations under paragraphs (c)(1) through (c)(3) of this section, the FDIC will apply notice and response procedures generally in the same manner as the notice and response procedures set forth in § 324.5(c). (2) If the FDIC determines that the risk-based capital requirement calculated under this subpart by the FDIC-supervised institution for one or more covered positions or portfolios of covered positions is not commensurate with the risks associated with those positions or portfolios, the FDIC may require the FDIC-supervised institution to assign a different risk-based capital requirement to the positions or portfolios that more accurately reflects the risk of the positions or portfolios. (3) The FDIC may also require an FDIC-supervised institution to calculate risk-based capital requirements for specific positions or portfolios under this subpart, or under subpart D or subpart E of this part, as appropriate, to more accurately reflect the risks of the positions. (4) Nothing in this subpart limits the authority of the FDIC under any other provision of law or regulation to take supervisory or enforcement action, including action to address unsafe or unsound practices or conditions, deficient capital levels, or violations of law. emcdonald on DSK67QTVN1PROD with RULES2 § 324.202 Definitions. (a) Terms set forth in § 324.2 and used in this subpart have the definitions assigned thereto in § 324.2. (b) For the purposes of this subpart, the following terms are defined as follows: Backtesting means the comparison of an FDIC-supervised institution’s internal estimates with actual outcomes during a sample period not used in model development. For purposes of this subpart, backtesting is one form of out-of-sample testing. Commodity position means a position for which price risk arises from changes in the price of a commodity. Corporate debt position means a debt position that is an exposure to a company that is not a sovereign entity, the Bank for International Settlements, the European Central Bank, the VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 European Commission, the International Monetary Fund, a multilateral development bank, a depository institution, a foreign bank, a credit union, a public sector entity, a GSE, or a securitization. Correlation trading position means: (1) A securitization position for which all or substantially all of the value of the underlying exposures is based on the credit quality of a single company for which a two-way market exists, or on commonly traded indices based on such exposures for which a two-way market exists on the indices; or (2) A position that is not a securitization position and that hedges a position described in paragraph (1) of this definition; and (3) A correlation trading position does not include: (i) A resecuritization position; (ii) A derivative of a securitization position that does not provide a pro rata share in the proceeds of a securitization tranche; or (iii) A securitization position for which the underlying assets or reference exposures are retail exposures, residential mortgage exposures, or commercial mortgage exposures. Covered position means the following positions: (1) A trading asset or trading liability (whether on- or off-balance sheet),27 as reported on Call Report, that meets the following conditions: (i) The position is a trading position or hedges another covered position; 28 and (ii) The position is free of any restrictive covenants on its tradability or the FDIC-supervised institution is able to hedge the material risk elements of the position in a two-way market; (2) A foreign exchange or commodity position, regardless of whether the position is a trading asset or trading liability (excluding any structural foreign currency positions that the FDIC-supervised institution chooses to exclude with prior supervisory approval); and (3) Notwithstanding paragraphs (1) and (2) of this definition, a covered position does not include: (i) An intangible asset, including any servicing asset; (ii) Any hedge of a trading position that the FDIC determines to be outside the scope of the FDIC-supervised institution’s hedging strategy required in paragraph (a)(2) of § 324.203; 27 Securities subject to repurchase and lending agreements are included as if they are still owned by the lender. 28 A position that hedges a trading position must be within the scope of the bank’s hedging strategy as described in paragraph (a)(2) of § 324.203. PO 00000 Frm 00235 Fmt 4701 Sfmt 4700 55573 (iii) Any position that, in form or substance, acts as a liquidity facility that provides support to asset-backed commercial paper; (iv) A credit derivative the FDICsupervised institution recognizes as a guarantee for risk-weighted asset amount calculation purposes under subpart D or subpart E of this part; (v) Any position that is recognized as a credit valuation adjustment hedge under § 324.132(e)(5) or § 324.132(e)(6), except as provided in § 324.132(e)(6)(vii); (vi) Any equity position that is not publicly traded, other than a derivative that references a publicly traded equity and other than a position in an investment company as defined in and registered with the SEC under the Investment Company Act, provided that all the underlying equities held by the investment company are publicly traded; (vii) Any equity position that is not publicly traded, other than a derivative that references a publicly traded equity and other than a position in an entity not domiciled in the United States (or a political subdivision thereof) that is supervised and regulated in a manner similar to entities described in paragraph (3)(vi) of this definition; (viii) Any position an FDICsupervised institution holds with the intent to securitize; or (ix) Any direct real estate holding. Debt position means a covered position that is not a securitization position or a correlation trading position and that has a value that reacts primarily to changes in interest rates or credit spreads. Default by a sovereign entity has the same meaning as the term sovereign default under § 324.2. Equity position means a covered position that is not a securitization position or a correlation trading position and that has a value that reacts primarily to changes in equity prices. Event risk means the risk of loss on equity or hybrid equity positions as a result of a financial event, such as the announcement or occurrence of a company merger, acquisition, spin-off, or dissolution. Foreign exchange position means a position for which price risk arises from changes in foreign exchange rates. General market risk means the risk of loss that could result from broad market movements, such as changes in the general level of interest rates, credit spreads, equity prices, foreign exchange rates, or commodity prices. Hedge means a position or positions that offset all, or substantially all, of one E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 55574 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations or more material risk factors of another position. Idiosyncratic risk means the risk of loss in the value of a position that arises from changes in risk factors unique to that position. Incremental risk means the default risk and credit migration risk of a position. Default risk means the risk of loss on a position that could result from the failure of an obligor to make timely payments of principal or interest on its debt obligation, and the risk of loss that could result from bankruptcy, insolvency, or similar proceeding. Credit migration risk means the price risk that arises from significant changes in the underlying credit quality of the position. Market risk means the risk of loss on a position that could result from movements in market prices. Resecuritization position means a covered position that is: (1) An on- or off-balance sheet exposure to a resecuritization; or (2) An exposure that directly or indirectly references a resecuritization exposure in paragraph (1) of this definition. Securitization means a transaction in which: (1) All or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties; (2) The credit risk associated with the underlying exposures has been separated into at least two tranches that reflect different levels of seniority; (3) Performance of the securitization exposures depends upon the performance of the underlying exposures; (4) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities); (5) For non-synthetic securitizations, the underlying exposures are not owned by an operating company; (6) The underlying exposures are not owned by a small business investment company described in section 302 of the Small Business Investment Act; (7) The underlying exposures are not owned by a firm an investment in which qualifies as a community development investment under section 24(Eleventh) of the National Bank Act; (8) The FDIC may determine that a transaction in which the underlying exposures are owned by an investment firm that exercises substantially unfettered control over the size and composition of its assets, liabilities, and off-balance sheet exposures is not a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 securitization based on the transaction’s leverage, risk profile, or economic substance; (9) The FDIC may deem an exposure to a transaction that meets the definition of a securitization, notwithstanding paragraph (5), (6), or (7) of this definition, to be a securitization based on the transaction’s leverage, risk profile, or economic substance; and (10) The transaction is not: (i) An investment fund; (ii) A collective investment fund (as defined in 12 CFR 344.3 (state nonmember bank) and 12 CFR 390.203 (state savings association)); (iii) An employee benefit plan as defined in paragraphs (3) and (32) of section 3 of ERISA, a ‘‘governmental plan’’ (as defined in 29 USC 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code, or any similar employee benefit plan established under the laws of a foreign jurisdiction; or (iv) Registered with the SEC under the Investment Company Act or foreign equivalents thereof. Securitization position means a covered position that is: (1) An on-balance sheet or off-balance sheet credit exposure (including creditenhancing representations and warranties) that arises from a securitization (including a resecuritization); or (2) An exposure that directly or indirectly references a securitization exposure described in paragraph (1) of this definition. Sovereign debt position means a direct exposure to a sovereign entity. Specific risk means the risk of loss on a position that could result from factors other than broad market movements and includes event risk, default risk, and idiosyncratic risk. Structural position in a foreign currency means a position that is not a trading position and that is: (1) Subordinated debt, equity, or minority interest in a consolidated subsidiary that is denominated in a foreign currency; (2) Capital assigned to foreign branches that is denominated in a foreign currency; (3) A position related to an unconsolidated subsidiary or another item that is denominated in a foreign currency and that is deducted from the FDIC-supervised institution’s tier 1 or tier 2 capital; or (4) A position designed to hedge an FDIC-supervised institution’s capital ratios or earnings against the effect on paragraphs (1), (2), or (3) of this definition of adverse exchange rate movements. PO 00000 Frm 00236 Fmt 4701 Sfmt 4700 Term repo-style transaction means a repo-style transaction that has an original maturity in excess of one business day. Trading position means a position that is held by the FDIC-supervised institution for the purpose of short-term resale or with the intent of benefiting from actual or expected short-term price movements, or to lock in arbitrage profits. Two-way market means a market where there are independent bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined within one day and settled at that price within a relatively short time frame conforming to trade custom. Value-at-Risk (VaR) means the estimate of the maximum amount that the value of one or more positions could decline due to market price or rate movements during a fixed holding period within a stated confidence interval. § 324.203 Requirements for application of this subpart F. (a) Trading positions—(1) Identification of trading positions. An FDIC-supervised institution must have clearly defined policies and procedures for determining which of its trading assets and trading liabilities are trading positions and which of its trading positions are correlation trading positions. These policies and procedures must take into account: (i) The extent to which a position, or a hedge of its material risks, can be marked-to-market daily by reference to a two-way market; and (ii) Possible impairments to the liquidity of a position or its hedge. (2) Trading and hedging strategies. An FDIC-supervised institution must have clearly defined trading and hedging strategies for its trading positions that are approved by senior management of the FDIC-supervised institution. (i) The trading strategy must articulate the expected holding period of, and the market risk associated with, each portfolio of trading positions. (ii) The hedging strategy must articulate for each portfolio of trading positions the level of market risk the FDIC-supervised institution is willing to accept and must detail the instruments, techniques, and strategies the FDICsupervised institution will use to hedge the risk of the portfolio. (b) Management of covered positions—(1) Active management. An FDIC-supervised institution must have clearly defined policies and procedures for actively managing all covered E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations positions. At a minimum, these policies and procedures must require: (i) Marking positions to market or to model on a daily basis; (ii) Daily assessment of the FDICsupervised institution’s ability to hedge position and portfolio risks, and of the extent of market liquidity; (iii) Establishment and daily monitoring of limits on positions by a risk control unit independent of the trading business unit; (iv) Daily monitoring by senior management of information described in paragraphs (b)(1)(i) through (b)(1)(iii) of this section; (v) At least annual reassessment of established limits on positions by senior management; and (vi) At least annual assessments by qualified personnel of the quality of market inputs to the valuation process, the soundness of key assumptions, the reliability of parameter estimation in pricing models, and the stability and accuracy of model calibration under alternative market scenarios. (2) Valuation of covered positions. The FDIC-supervised institution must have a process for prudent valuation of its covered positions that includes policies and procedures on the valuation of positions, marking positions to market or to model, independent price verification, and valuation adjustments or reserves. The valuation process must consider, as appropriate, unearned credit spreads, close-out costs, early termination costs, investing and funding costs, liquidity, and model risk. (c) Requirements for internal models. (1) An FDIC-supervised institution must obtain the prior written approval of the FDIC before using any internal model to calculate its risk-based capital requirement under this subpart. (2) An FDIC-supervised institution must meet all of the requirements of this section on an ongoing basis. The FDICsupervised institution must promptly notify the FDIC when: (i) The FDIC-supervised institution plans to extend the use of a model that the FDIC has approved under this subpart to an additional business line or product type; (ii) The FDIC-supervised institution makes any change to an internal model approved by the FDIC under this subpart that would result in a material change in the FDIC-supervised institution’s risk-weighted asset amount for a portfolio of covered positions; or (iii) The FDIC-supervised institution makes any material change to its modeling assumptions. (3) The FDIC may rescind its approval of the use of any internal model (in VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 whole or in part) or of the determination of the approach under § 324.209(a)(2)(ii) for an FDIC-supervised institution’s modeled correlation trading positions and determine an appropriate capital requirement for the covered positions to which the model would apply, if the FDIC determines that the model no longer complies with this subpart or fails to reflect accurately the risks of the FDIC-supervised institution’s covered positions. (4) The FDIC-supervised institution must periodically, but no less frequently than annually, review its internal models in light of developments in financial markets and modeling technologies, and enhance those models as appropriate to ensure that they continue to meet the FDIC’s standards for model approval and employ risk measurement methodologies that are most appropriate for the FDICsupervised institution’s covered positions. (5) The FDIC-supervised institution must incorporate its internal models into its risk management process and integrate the internal models used for calculating its VaR-based measure into its daily risk management process. (6) The level of sophistication of an FDIC-supervised institution’s internal models must be commensurate with the complexity and amount of its covered positions. An FDIC-supervised institution’s internal models may use any of the generally accepted approaches, including but not limited to variance-covariance models, historical simulations, or Monte Carlo simulations, to measure market risk. (7) The FDIC-supervised institution’s internal models must properly measure all the material risks in the covered positions to which they are applied. (8) The FDIC-supervised institution’s internal models must conservatively assess the risks arising from less liquid positions and positions with limited price transparency under realistic market scenarios. (9) The FDIC-supervised institution must have a rigorous and well-defined process for re-estimating, re-evaluating, and updating its internal models to ensure continued applicability and relevance. (10) If an FDIC-supervised institution uses internal models to measure specific risk, the internal models must also satisfy the requirements in paragraph (b)(1) of § 324.207. (d) Control, oversight, and validation mechanisms. (1) The FDIC-supervised institution must have a risk control unit that reports directly to senior management and is independent from the business trading units. PO 00000 Frm 00237 Fmt 4701 Sfmt 4700 55575 (2) The FDIC-supervised institution must validate its internal models initially and on an ongoing basis. The FDIC-supervised institution’s validation process must be independent of the internal models’ development, implementation, and operation, or the validation process must be subjected to an independent review of its adequacy and effectiveness. Validation must include: (i) An evaluation of the conceptual soundness of (including developmental evidence supporting) the internal models; (ii) An ongoing monitoring process that includes verification of processes and the comparison of the FDICsupervised institution’s model outputs with relevant internal and external data sources or estimation techniques; and (iii) An outcomes analysis process that includes backtesting. For internal models used to calculate the VaR-based measure, this process must include a comparison of the changes in the FDICsupervised institution’s portfolio value that would have occurred were end-ofday positions to remain unchanged (therefore, excluding fees, commissions, reserves, net interest income, and intraday trading) with VaR-based measures during a sample period not used in model development. (3) The FDIC-supervised institution must stress test the market risk of its covered positions at a frequency appropriate to each portfolio, and in no case less frequently than quarterly. The stress tests must take into account concentration risk (including but not limited to concentrations in single issuers, industries, sectors, or markets), illiquidity under stressed market conditions, and risks arising from the FDIC-supervised institution’s trading activities that may not be adequately captured in its internal models. (4) The FDIC-supervised institution must have an internal audit function independent of business-line management that at least annually assesses the effectiveness of the controls supporting the FDIC-supervised institution’s market risk measurement systems, including the activities of the business trading units and independent risk control unit, compliance with policies and procedures, and calculation of the FDIC-supervised institution’s measures for market risk under this subpart. At least annually, the internal audit function must report its findings to the FDIC-supervised institution’s board of directors (or a committee thereof). (e) Internal assessment of capital adequacy. The FDIC-supervised institution must have a rigorous process E:\FR\FM\10SER2.SGM 10SER2 55576 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations for assessing its overall capital adequacy in relation to its market risk. The assessment must take into account risks that may not be captured fully in the VaR-based measure, including concentration and liquidity risk under stressed market conditions. (f) Documentation. The FDICsupervised institution must adequately document all material aspects of its internal models, management and valuation of covered positions, control, oversight, validation and review processes and results, and internal assessment of capital adequacy. emcdonald on DSK67QTVN1PROD with RULES2 § 324.204 Measure for market risk. (a) General requirement. (1) An FDICsupervised institution must calculate its standardized measure for market risk by following the steps described in paragraph (a)(2) of this section. An advanced approaches FDIC-supervised institution also must calculate an advanced measure for market risk by following the steps in paragraph (a)(2) of this section. (2) Measure for market risk. An FDICsupervised institution must calculate the standardized measure for market risk, which equals the sum of the VaRbased capital requirement, stressed VaRbased capital requirement, specific risk add-ons, incremental risk capital requirement, comprehensive risk capital requirement, and capital requirement for de minimis exposures all as defined under this paragraph (a)(2), (except, that the FDIC-supervised institution may not use the SFA in § 324.210(b)(2)(vii)(B) for purposes of this calculation), plus any additional capital requirement established by the FDIC. An advanced approaches FDIC-supervised institution that has completed the parallel run process and that has received notifications from the FDIC pursuant to § 324.121(d) also must calculate the advanced measure for market risk, which equals the sum of the VaR-based capital requirement, stressed VaR-based capital requirement, specific risk addons, incremental risk capital requirement, comprehensive risk capital requirement, and capital requirement for de minimis exposures as defined under this paragraph (a)(2), plus any additional capital requirement established by the FDIC. (i) VaR-based capital requirement. An FDIC-supervised institution’s VaR-based capital requirement equals the greater of: (A) The previous day’s VaR-based measure as calculated under § 324.205; or (B) The average of the daily VaRbased measures as calculated under § 324.205 for each of the preceding 60 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 business days multiplied by three, except as provided in paragraph (b) of this section. (ii) Stressed VaR-based capital requirement. An FDIC-supervised institution’s stressed VaR-based capital requirement equals the greater of: (A) The most recent stressed VaRbased measure as calculated under § 324.206; or (B) The average of the stressed VaRbased measures as calculated under § 324.206 for each of the preceding 12 weeks multiplied by three, except as provided in paragraph (b) of this section. (iii) Specific risk add-ons. An FDICsupervised institution’s specific risk add-ons equal any specific risk add-ons that are required under § 324.207 and are calculated in accordance with § 324.210. (iv) Incremental risk capital requirement. An FDIC-supervised institution’s incremental risk capital requirement equals any incremental risk capital requirement as calculated under § 324.208. (v) Comprehensive risk capital requirement. An FDIC-supervised institution’s comprehensive risk capital requirement equals any comprehensive risk capital requirement as calculated under § 324.209. (vi) Capital requirement for de minimis exposures. An FDIC-supervised institution’s capital requirement for de minimis exposures equals: (A) The absolute value of the fair value of those de minimis exposures that are not captured in the FDICsupervised institution’s VaR-based measure or under paragraph (a)(2)(vi)(B) of this section; and (B) With the prior written approval of the FDIC, the capital requirement for any de minimis exposures using alternative techniques that appropriately measure the market risk associated with those exposures. (b) Backtesting. An FDIC-supervised institution must compare each of its most recent 250 business days’ trading losses (excluding fees, commissions, reserves, net interest income, and intraday trading) with the corresponding daily VaR-based measures calibrated to a one-day holding period and at a one-tail, 99.0 percent confidence level. An FDICsupervised institution must begin backtesting as required by this paragraph (b) no later than one year after the later of January 1, 2014, and the date on which the FDIC-supervised institution becomes subject to this subpart. In the interim, consistent with safety and soundness principles, an FDIC-supervised institution subject to PO 00000 Frm 00238 Fmt 4701 Sfmt 4700 this subpart as of January 1, 2014 should continue to follow backtesting procedures in accordance with the FDIC’s supervisory expectations. (1) Once each quarter, the FDICsupervised institution must identify the number of exceptions (that is, the number of business days for which the actual daily net trading loss, if any, exceeds the corresponding daily VaRbased measure) that have occurred over the preceding 250 business days. (2) An FDIC-supervised institution must use the multiplication factor in Table 1 to § 324.204 that corresponds to the number of exceptions identified in paragraph (b)(1) of this section to determine its VaR-based capital requirement for market risk under paragraph (a)(2)(i) of this section and to determine its stressed VaR-based capital requirement for market risk under paragraph (a)(2)(ii) of this section until it obtains the next quarter’s backtesting results, unless the FDIC notifies the FDIC-supervised institution in writing that a different adjustment or other action is appropriate. TABLE 1 TO § 324.204—MULTIPLICATION FACTORS BASED ON RESULTS OF BACKTESTING Number of exceptions Multiplication factor 4 or fewer ....................... 5 ...................................... 6 ...................................... 7 ...................................... 8 ...................................... 9 ...................................... 10 or more ...................... § 324.205 3.00 3.40 3.50 3.65 3.75 3.85 4.00 VaR-based measure. (a) General requirement. An FDICsupervised institution must use one or more internal models to calculate daily a VaR-based measure of the general market risk of all covered positions. The daily VaR-based measure also may reflect the FDIC-supervised institution’s specific risk for one or more portfolios of debt and equity positions, if the internal models meet the requirements of § 324.207(b)(1). The daily VaR-based measure must also reflect the FDICsupervised institution’s specific risk for any portfolio of correlation trading positions that is modeled under § 324.209. An FDIC-supervised institution may elect to include term repo-style transactions in its VaR-based measure, provided that the FDICsupervised institution includes all such term repo-style transactions consistently over time. (1) The FDIC-supervised institution’s internal models for calculating its VaR- E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations based measure must use risk factors sufficient to measure the market risk inherent in all covered positions. The market risk categories must include, as appropriate, interest rate risk, credit spread risk, equity price risk, foreign exchange risk, and commodity price risk. For material positions in the major currencies and markets, modeling techniques must incorporate enough segments of the yield curve—in no case less than six—to capture differences in volatility and less than perfect correlation of rates along the yield curve. (2) The VaR-based measure may incorporate empirical correlations within and across risk categories, provided the FDIC-supervised institution validates and demonstrates the reasonableness of its process for measuring correlations. If the VaR-based measure does not incorporate empirical correlations across risk categories, the FDIC-supervised institution must add the separate measures from its internal models used to calculate the VaR-based measure for the appropriate market risk categories (interest rate risk, credit spread risk, equity price risk, foreign exchange rate risk, and/or commodity price risk) to determine its aggregate VaR-based measure. (3) The VaR-based measure must include the risks arising from the nonlinear price characteristics of options positions or positions with embedded optionality and the sensitivity of the fair value of the positions to changes in the volatility of the underlying rates, prices, or other material risk factors. An FDICsupervised institution with a large or complex options portfolio must measure the volatility of options positions or positions with embedded optionality by different maturities and/or strike prices, where material. (4) The FDIC-supervised institution must be able to justify to the satisfaction of the FDIC the omission of any risk factors from the calculation of its VaRbased measure that the FDIC-supervised institution uses in its pricing models. (5) The FDIC-supervised institution must demonstrate to the satisfaction of the FDIC the appropriateness of any proxies used to capture the risks of the FDIC-supervised institution’s actual positions for which such proxies are used. (b) Quantitative requirements for VaRbased measure. (1) The VaR-based measure must be calculated on a daily basis using a one-tail, 99.0 percent confidence level, and a holding period equivalent to a 10-business-day movement in underlying risk factors, such as rates, spreads, and prices. To VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 calculate VaR-based measures using a 10-business-day holding period, the FDIC-supervised institution may calculate 10-business-day measures directly or may convert VaR-based measures using holding periods other than 10 business days to the equivalent of a 10-business-day holding period. An FDIC-supervised institution that converts its VaR-based measure in such a manner must be able to justify the reasonableness of its approach to the satisfaction of the FDIC. (2) The VaR-based measure must be based on a historical observation period of at least one year. Data used to determine the VaR-based measure must be relevant to the FDIC-supervised institution’s actual exposures and of sufficient quality to support the calculation of risk-based capital requirements. The FDIC-supervised institution must update data sets at least monthly or more frequently as changes in market conditions or portfolio composition warrant. For an FDICsupervised institution that uses a weighting scheme or other method for the historical observation period, the FDIC-supervised institution must either: (i) Use an effective observation period of at least one year in which the average time lag of the observations is at least six months; or (ii) Demonstrate to the FDIC that its weighting scheme is more effective than a weighting scheme with an average time lag of at least six months representing the volatility of the FDICsupervised institution’s trading portfolio over a full business cycle. An FDICsupervised institution using this option must update its data more frequently than monthly and in a manner appropriate for the type of weighting scheme. (c) An FDIC-supervised institution must divide its portfolio into a number of significant subportfolios approved by the FDIC for subportfolio backtesting purposes. These subportfolios must be sufficient to allow the FDIC-supervised institution and the FDIC to assess the adequacy of the VaR model at the risk factor level; the FDIC will evaluate the appropriateness of these subportfolios relative to the value and composition of the FDIC-supervised institution’s covered positions. The FDIC-supervised institution must retain and make available to the FDIC the following information for each subportfolio for each business day over the previous two years (500 business days), with no more than a 60-day lag: (1) A daily VaR-based measure for the subportfolio calibrated to a one-tail, 99.0 percent confidence level; PO 00000 Frm 00239 Fmt 4701 Sfmt 4700 55577 (2) The daily profit or loss for the subportfolio (that is, the net change in price of the positions held in the portfolio at the end of the previous business day); and (3) The p-value of the profit or loss on each day (that is, the probability of observing a profit that is less than, or a loss that is greater than, the amount reported for purposes of paragraph (c)(2) of this section based on the model used to calculate the VaR-based measure described in paragraph (c)(1) of this section). § 324.206 Stressed VaR-based measure. (a) General requirement. At least weekly, an FDIC-supervised institution must use the same internal model(s) used to calculate its VaR-based measure to calculate a stressed VaR-based measure. (b) Quantitative requirements for stressed VaR-based measure. (1) An FDIC-supervised institution must calculate a stressed VaR-based measure for its covered positions using the same model(s) used to calculate the VaRbased measure, subject to the same confidence level and holding period applicable to the VaR-based measure under § 324.205, but with model inputs calibrated to historical data from a continuous 12-month period that reflects a period of significant financial stress appropriate to the FDICsupervised institution’s current portfolio. (2) The stressed VaR-based measure must be calculated at least weekly and be no less than the FDIC-supervised institution’s VaR-based measure. (3) An FDIC-supervised institution must have policies and procedures that describe how it determines the period of significant financial stress used to calculate the FDIC-supervised institution’s stressed VaR-based measure under this section and must be able to provide empirical support for the period used. The FDIC-supervised institution must obtain the prior approval of the FDIC for, and notify the FDIC if the FDIC-supervised institution makes any material changes to, these policies and procedures. The policies and procedures must address: (i) How the FDIC-supervised institution links the period of significant financial stress used to calculate the stressed VaR-based measure to the composition and directional bias of its current portfolio; and (ii) The FDIC-supervised institution’s process for selecting, reviewing, and updating the period of significant financial stress used to calculate the stressed VaR-based measure and for monitoring the appropriateness of the E:\FR\FM\10SER2.SGM 10SER2 55578 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations period to the FDIC-supervised institution’s current portfolio. (4) Nothing in this section prevents the FDIC from requiring an FDICsupervised institution to use a different period of significant financial stress in the calculation of the stressed VaRbased measure. emcdonald on DSK67QTVN1PROD with RULES2 § 324.207 Specific risk. (a) General requirement. An FDICsupervised institution must use one of the methods in this section to measure the specific risk for each of its debt, equity, and securitization positions with specific risk. (b) Modeled specific risk. An FDICsupervised institution may use models to measure the specific risk of covered positions as provided in § 324.205(a) (therefore, excluding securitization positions that are not modeled under § 324.209). An FDIC-supervised institution must use models to measure the specific risk of correlation trading positions that are modeled under § 324.209. (1) Requirements for specific risk modeling. (i) If an FDIC-supervised institution uses internal models to measure the specific risk of a portfolio, the internal models must: (A) Explain the historical price variation in the portfolio; (B) Be responsive to changes in market conditions; (C) Be robust to an adverse environment, including signaling rising risk in an adverse environment; and (D) Capture all material components of specific risk for the debt and equity positions in the portfolio. Specifically, the internal models must: (1) Capture event risk and idiosyncratic risk; and (2) Capture and demonstrate sensitivity to material differences between positions that are similar but not identical and to changes in portfolio composition and concentrations. (ii) If an FDIC-supervised institution calculates an incremental risk measure for a portfolio of debt or equity positions under § 324.208, the FDIC-supervised institution is not required to capture default and credit migration risks in its internal models used to measure the specific risk of those portfolios. (2) Specific risk fully modeled for one or more portfolios. If the FDICsupervised institution’s VaR-based measure captures all material aspects of specific risk for one or more of its portfolios of debt, equity, or correlation trading positions, the FDIC-supervised institution has no specific risk add-on for those portfolios for purposes of § 324.204(a)(2)(iii). (c) Specific risk not modeled. (1) If the FDIC-supervised institution’s VaR-based VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 measure does not capture all material aspects of specific risk for a portfolio of debt, equity, or correlation trading positions, the FDIC-supervised institution must calculate a specific-risk add-on for the portfolio under the standardized measurement method as described in § 324.210. (2) An FDIC-supervised institution must calculate a specific risk add-on under the standardized measurement method as described in § 324.210 for all of its securitization positions that are not modeled under § 324.209. § 324.208 Incremental risk. (a) General requirement. An FDICsupervised institution that measures the specific risk of a portfolio of debt positions under § 324.207(b) using internal models must calculate at least weekly an incremental risk measure for that portfolio according to the requirements in this section. The incremental risk measure is the FDICsupervised institution’s measure of potential losses due to incremental risk over a one-year time horizon at a onetail, 99.9 percent confidence level, either under the assumption of a constant level of risk, or under the assumption of constant positions. With the prior approval of the FDIC, an FDICsupervised institution may choose to include portfolios of equity positions in its incremental risk model, provided that it consistently includes such equity positions in a manner that is consistent with how the FDIC-supervised institution internally measures and manages the incremental risk of such positions at the portfolio level. If equity positions are included in the model, for modeling purposes default is considered to have occurred upon the default of any debt of the issuer of the equity position. An FDIC-supervised institution may not include correlation trading positions or securitization positions in its incremental risk measure. (b) Requirements for incremental risk modeling. For purposes of calculating the incremental risk measure, the incremental risk model must: (1) Measure incremental risk over a one-year time horizon and at a one-tail, 99.9 percent confidence level, either under the assumption of a constant level of risk, or under the assumption of constant positions. (i) A constant level of risk assumption means that the FDIC-supervised institution rebalances, or rolls over, its trading positions at the beginning of each liquidity horizon over the one-year horizon in a manner that maintains the FDIC-supervised institution’s initial risk level. The FDIC-supervised institution must determine the frequency of PO 00000 Frm 00240 Fmt 4701 Sfmt 4700 rebalancing in a manner consistent with the liquidity horizons of the positions in the portfolio. The liquidity horizon of a position or set of positions is the time required for an FDIC-supervised institution to reduce its exposure to, or hedge all of its material risks of, the position(s) in a stressed market. The liquidity horizon for a position or set of positions may not be less than the shorter of three months or the contractual maturity of the position. (ii) A constant position assumption means that the FDIC-supervised institution maintains the same set of positions throughout the one-year horizon. If an FDIC-supervised institution uses this assumption, it must do so consistently across all portfolios. (iii) An FDIC-supervised institution’s selection of a constant position or a constant risk assumption must be consistent between the FDIC-supervised institution’s incremental risk model and its comprehensive risk model described in § 324.209, if applicable. (iv) An FDIC-supervised institution’s treatment of liquidity horizons must be consistent between the FDIC-supervised institution’s incremental risk model and its comprehensive risk model described in § 324.209, if applicable. (2) Recognize the impact of correlations between default and migration events among obligors. (3) Reflect the effect of issuer and market concentrations, as well as concentrations that can arise within and across product classes during stressed conditions. (4) Reflect netting only of long and short positions that reference the same financial instrument. (5) Reflect any material mismatch between a position and its hedge. (6) Recognize the effect that liquidity horizons have on dynamic hedging strategies. In such cases, an FDICsupervised institution must: (i) Choose to model the rebalancing of the hedge consistently over the relevant set of trading positions; (ii) Demonstrate that the inclusion of rebalancing results in a more appropriate risk measurement; (iii) Demonstrate that the market for the hedge is sufficiently liquid to permit rebalancing during periods of stress; and (iv) Capture in the incremental risk model any residual risks arising from such hedging strategies. (7) Reflect the nonlinear impact of options and other positions with material nonlinear behavior with respect to default and migration changes. (8) Maintain consistency with the FDIC-supervised institution’s internal risk management methodologies for E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations identifying, measuring, and managing risk. (c) Calculation of incremental risk capital requirement. The incremental risk capital requirement is the greater of: (1) The average of the incremental risk measures over the previous 12 weeks; or (2) The most recent incremental risk measure. emcdonald on DSK67QTVN1PROD with RULES2 § 324.209 Comprehensive risk. (a) General requirement. (1) Subject to the prior approval of the FDIC, an FDICsupervised institution may use the method in this section to measure comprehensive risk, that is, all price risk, for one or more portfolios of correlation trading positions. (2) An FDIC-supervised institution that measures the price risk of a portfolio of correlation trading positions using internal models must calculate at least weekly a comprehensive risk measure that captures all price risk according to the requirements of this section. The comprehensive risk measure is either: (i) The sum of: (A) The FDIC-supervised institution’s modeled measure of all price risk determined according to the requirements in paragraph (b) of this section; and (B) A surcharge for the FDICsupervised institution’s modeled correlation trading positions equal to the total specific risk add-on for such positions as calculated under § 324.210 multiplied by 8.0 percent; or (ii) With approval of the FDIC and provided the FDIC-supervised institution has met the requirements of this section for a period of at least one year and can demonstrate the effectiveness of the model through the results of ongoing model validation efforts including robust benchmarking, the greater of: (A) The FDIC-supervised institution’s modeled measure of all price risk determined according to the requirements in paragraph (b) of this section; or (B) The total specific risk add-on that would apply to the bank’s modeled correlation trading positions as calculated under § 324.210 multiplied by 8.0 percent. (b) Requirements for modeling all price risk. If an FDIC-supervised institution uses an internal model to measure the price risk of a portfolio of correlation trading positions: (1) The internal model must measure comprehensive risk over a one-year time horizon at a one-tail, 99.9 percent confidence level, either under the assumption of a constant level of risk, or under the assumption of constant positions. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (2) The model must capture all material price risk, including but not limited to the following: (i) The risks associated with the contractual structure of cash flows of the position, its issuer, and its underlying exposures; (ii) Credit spread risk, including nonlinear price risks; (iii) The volatility of implied correlations, including nonlinear price risks such as the cross-effect between spreads and correlations; (iv) Basis risk; (v) Recovery rate volatility as it relates to the propensity for recovery rates to affect tranche prices; and (vi) To the extent the comprehensive risk measure incorporates the benefits of dynamic hedging, the static nature of the hedge over the liquidity horizon must be recognized. In such cases, an FDIC-supervised institution must: (A) Choose to model the rebalancing of the hedge consistently over the relevant set of trading positions; (B) Demonstrate that the inclusion of rebalancing results in a more appropriate risk measurement; (C) Demonstrate that the market for the hedge is sufficiently liquid to permit rebalancing during periods of stress; and (D) Capture in the comprehensive risk model any residual risks arising from such hedging strategies; (3) The FDIC-supervised institution must use market data that are relevant in representing the risk profile of the FDIC-supervised institution’s correlation trading positions in order to ensure that the FDIC-supervised institution fully captures the material risks of the correlation trading positions in its comprehensive risk measure in accordance with this section; and (4) The FDIC-supervised institution must be able to demonstrate that its model is an appropriate representation of comprehensive risk in light of the historical price variation of its correlation trading positions. (c) Requirements for stress testing. (1) An FDIC-supervised institution must at least weekly apply specific, supervisory stress scenarios to its portfolio of correlation trading positions that capture changes in: (i) Default rates; (ii) Recovery rates; (iii) Credit spreads; (iv) Correlations of underlying exposures; and (v) Correlations of a correlation trading position and its hedge. (2) Other requirements. (i) An FDICsupervised institution must retain and make available to the FDIC the results of the supervisory stress testing, including comparisons with the capital PO 00000 Frm 00241 Fmt 4701 Sfmt 4700 55579 requirements generated by the FDICsupervised institution’s comprehensive risk model. (ii) An FDIC-supervised institution must report to the FDIC promptly any instances where the stress tests indicate any material deficiencies in the comprehensive risk model. (d) Calculation of comprehensive risk capital requirement. The comprehensive risk capital requirement is the greater of: (1) The average of the comprehensive risk measures over the previous 12 weeks; or (2) The most recent comprehensive risk measure. § 324.210 Standardized measurement method for specific risk. (a) General requirement. An FDICsupervised institution must calculate a total specific risk add-on for each portfolio of debt and equity positions for which the FDIC-supervised institution’s VaR-based measure does not capture all material aspects of specific risk and for all securitization positions that are not modeled under § 324.209. An FDICsupervised institution must calculate each specific risk add-on in accordance with the requirements of this section. Notwithstanding any other definition or requirement in this subpart, a position that would have qualified as a debt position or an equity position but for the fact that it qualifies as a correlation trading position under paragraph (2) of the definition of correlation trading position in § 324.2, shall be considered a debt position or an equity position, respectively, for purposes of this § 324.210. (1) The specific risk add-on for an individual debt or securitization position that represents sold credit protection is capped at the notional amount of the credit derivative contract. The specific risk add-on for an individual debt or securitization position that represents purchased credit protection is capped at the current fair value of the transaction plus the absolute value of the present value of all remaining payments to the protection seller under the transaction. This sum is equal to the value of the protection leg of the transaction. (2) For debt, equity, or securitization positions that are derivatives with linear payoffs, an FDIC-supervised institution must assign a specific risk-weighting factor to the fair value of the effective notional amount of the underlying instrument or index portfolio, except for a securitization position for which the FDIC-supervised institution directly calculates a specific risk add-on using the SFA in paragraph (b)(2)(vii)(B) of this section. A swap must be included E:\FR\FM\10SER2.SGM 10SER2 55580 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations as an effective notional position in the underlying instrument or portfolio, with the receiving side treated as a long position and the paying side treated as a short position. For debt, equity, or securitization positions that are derivatives with nonlinear payoffs, an FDIC-supervised institution must risk weight the fair value of the effective notional amount of the underlying instrument or portfolio multiplied by the derivative’s delta. (3) For debt, equity, or securitization positions, an FDIC-supervised institution may net long and short positions (including derivatives) in identical issues or identical indices. An FDIC-supervised institution may also net positions in depositary receipts against an opposite position in an identical equity in different markets, provided that the FDIC-supervised institution includes the costs of conversion. (4) A set of transactions consisting of either a debt position and its credit derivative hedge or a securitization position and its credit derivative hedge has a specific risk add-on of zero if: (i) The debt or securitization position is fully hedged by a total return swap (or similar instrument where there is a matching of swap payments and changes in fair value of the debt or securitization position); (ii) There is an exact match between the reference obligation of the swap and the debt or securitization position; (iii) There is an exact match between the currency of the swap and the debt or securitization position; and (iv) There is either an exact match between the maturity date of the swap and the maturity date of the debt or securitization position; or, in cases where a total return swap references a portfolio of positions with different maturity dates, the total return swap maturity date must match the maturity date of the underlying asset in that portfolio that has the latest maturity date. (5) The specific risk add-on for a set of transactions consisting of either a debt position and its credit derivative hedge or a securitization position and its credit derivative hedge that does not meet the criteria of paragraph (a)(4) of this section is equal to 20.0 percent of the capital requirement for the side of the transaction with the higher specific risk add-on when: (i) The credit risk of the position is fully hedged by a credit default swap or similar instrument; (ii) There is an exact match between the reference obligation of the credit derivative hedge and the debt or securitization position; (iii) There is an exact match between the currency of the credit derivative hedge and the debt or securitization position; and (iv) There is either an exact match between the maturity date of the credit derivative hedge and the maturity date of the debt or securitization position; or, in the case where the credit derivative hedge has a standard maturity date: (A) The maturity date of the credit derivative hedge is within 30 business days of the maturity date of the debt or securitization position; or (B) For purchased credit protection, the maturity date of the credit derivative hedge is later than the maturity date of the debt or securitization position, but is no later than the standard maturity date for that instrument that immediately follows the maturity date of the debt or securitization position. The maturity date of the credit derivative hedge may not exceed the maturity date of the debt or securitization position by more than 90 calendar days. (6) The specific risk add-on for a set of transactions consisting of either a debt position and its credit derivative hedge or a securitization position and its credit derivative hedge that does not meet the criteria of either paragraph (a)(4) or (a)(5) of this section, but in which all or substantially all of the price risk has been hedged, is equal to the specific risk add-on for the side of the transaction with the higher specific risk add-on. (b) Debt and securitization positions. (1) The total specific risk add-on for a portfolio of debt or securitization positions is the sum of the specific risk add-ons for individual debt or securitization positions, as computed under this section. To determine the specific risk add-on for individual debt or securitization positions, an FDICsupervised institution must multiply the absolute value of the current fair value of each net long or net short debt or securitization position in the portfolio by the appropriate specific riskweighting factor as set forth in paragraphs (b)(2)(i) through (b)(2)(vii) of this section. (2) For the purpose of this section, the appropriate specific risk-weighting factors include: (i) Sovereign debt positions. (A) In accordance with Table 1 to § 324.210, an FDIC-supervised institution must assign a specific risk-weighting factor to a sovereign debt position based on the CRC applicable to the sovereign, and, as applicable, the remaining contractual maturity of the position, or if there is no CRC applicable to the sovereign, based on whether the sovereign entity is a member of the OECD. Notwithstanding any other provision in this subpart, sovereign debt positions that are backed by the full faith and credit of the United States are treated as having a CRC of 0. TABLE 1 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR SOVEREIGN DEBT POSITIONS Specific risk-weighting factor (in percent) CRC ................................................. 0–1 Remaining contractual maturity of 6 months or less ................................ 0.25 Remaining contractual maturity of greater than 6 and up to and including 24 months. 1.0 Remaining contractual maturity exceeds 24 months ................................ emcdonald on DSK67QTVN1PROD with RULES2 2–3 0.0 1.6 4–6 8.0 7 12.0 OECD Member with No CRC 0.0 Non-OECD Member with No CRC 8.0 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00242 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55581 TABLE 1 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR SOVEREIGN DEBT POSITIONS—Continued Sovereign Default 12.0 (B) Notwithstanding paragraph (b)(2)(i)(A) of this section, an FDICsupervised institution may assign to a sovereign debt position a specific riskweighting factor that is lower than the applicable specific risk-weighting factor in Table 1 to § 324.210 if: (1) The position is denominated in the sovereign entity’s currency; (2) The FDIC-supervised institution has at least an equivalent amount of liabilities in that currency; and (3) The sovereign entity allows banks under its jurisdiction to assign the lower specific risk-weighting factor to the same exposures to the sovereign entity. (C) An FDIC-supervised institution must assign a 12.0 percent specific riskweighting factor to a sovereign debt position immediately upon determination a default has occurred; or if a default has occurred within the previous five years. (D) An FDIC-supervised institution must assign a 0.0 percent specific risk- weighting factor to a sovereign debt position if the sovereign entity is a member of the OECD and does not have a CRC assigned to it, except as provided in paragraph (b)(2)(i)(C) of this section. (E) An FDIC-supervised institution must assign an 8.0 percent specific riskweighting factor to a sovereign debt position if the sovereign is not a member of the OECD and does not have a CRC assigned to it, except as provided in paragraph (b)(2)(i)(C) of this section. (ii) Certain supranational entity and multilateral development bank debt positions. An FDIC-supervised institution may assign a 0.0 percent specific risk-weighting factor to a debt position that is an exposure to the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, or an MDB. (iii) GSE debt positions. An FDICsupervised institution must assign a 1.6 percent specific risk-weighting factor to a debt position that is an exposure to a GSE. Notwithstanding the foregoing, an FDIC-supervised institution must assign an 8.0 percent specific risk-weighting factor to preferred stock issued by a GSE. (iv) Depository institution, foreign bank, and credit union debt positions. (A) Except as provided in paragraph (b)(2)(iv)(B) of this section, an FDICsupervised institution must assign a specific risk-weighting factor to a debt position that is an exposure to a depository institution, a foreign bank, or a credit union, in accordance with Table 2 to § 324.210 of this section, based on the CRC that corresponds to that entity’s home country or the OECD membership status of that entity’s home country if there is no CRC applicable to the entity’s home country, and, as applicable, the remaining contractual maturity of the position. TABLE 2 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR DEPOSITORY INSTITUTION, FOREIGN BANK, AND CREDIT UNION DEBT POSITIONS Specific risk-weighting factor CRC 0–2 or OECD Member with No CRC ................................ emcdonald on DSK67QTVN1PROD with RULES2 CRC 3 ......................................................................................... CRC 4–7 ..................................................................................... Non-OECD Member with No CRC ............................................. Sovereign Default ....................................................................... (B) An FDIC-supervised institution must assign a specific risk-weighting factor of 8.0 percent to a debt position that is an exposure to a depository institution or a foreign bank that is includable in the depository institution’s or foreign bank’s regulatory capital and that is not subject to deduction as a reciprocal holding under § 324.22. (C) An FDIC-supervised institution must assign a 12.0 percent specific riskweighting factor to a debt position that is an exposure to a foreign bank immediately upon determination that a default by the foreign bank’s home country has occurred or if a default by the foreign bank’s home country has occurred within the previous five years. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 Remaining contractual maturity of 6 months or less ................. Remaining contractual maturity of greater than 6 and up to and including 24 months. Remaining contractual maturity exceeds 24 months ................. ................................................................................................ ................................................................................................ ................................................................................................ ................................................................................................ (v) PSE debt positions. (A) Except as provided in paragraph (b)(2)(v)(B) of this section, an FDIC-supervised institution must assign a specific riskweighting factor to a debt position that is an exposure to a PSE in accordance with Tables 3 and 4 to § 324.210 depending on the position’s categorization as a general obligation or revenue obligation based on the CRC that corresponds to the PSE’s home country or the OECD membership status of the PSE’s home country if there is no CRC applicable to the PSE’s home country, and, as applicable, the remaining contractual maturity of the position, as set forth in Tables 3 and 4 to § 324.210. (B) An FDIC-supervised institution may assign a lower specific risk- PO 00000 Frm 00243 Fmt 4701 Sfmt 4700 Percent 0.25 1.0 1.6 8.0 12.0 8.0 12.0 weighting factor than would otherwise apply under Tables 3 and 4 to § 324.210 to a debt position that is an exposure to a foreign PSE if: (1) The PSE’s home country allows banks under its jurisdiction to assign a lower specific risk-weighting factor to such position; and (2) The specific risk-weighting factor is not lower than the risk weight that corresponds to the PSE’s home country in Table 1 to § 324.210. (C) An FDIC-supervised institution must assign a 12.0 percent specific riskweighting factor to a PSE debt position immediately upon determination that a default by the PSE’s home country has occurred or if a default by the PSE’s home country has occurred within the previous five years. E:\FR\FM\10SER2.SGM 10SER2 55582 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 3 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR PSE GENERAL OBLIGATION DEBT POSITIONS General obligation specific risk-weighting factor CRC 0–2 or OECD Member with No CRC ................................ CRC 3 ......................................................................................... CRC 4–7 ..................................................................................... Non-OECD Member with No CRC ............................................. Sovereign Default ....................................................................... Percent Remaining contractual maturity of 6 months or less ................. Remaining contractual maturity of greater than 6 and up to and including 24 months. Remaining contractual maturity exceeds 24 months ................. ................................................................................................ ................................................................................................ ................................................................................................ ................................................................................................ 0.25 1.0 1.6 8.0 12.0 8.0 12.0 TABLE 4 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR PSE REVENUE OBLIGATION DEBT POSITIONS Revenue obligation specific risk-weighting factor CRC 0–1 or OECD Member with No CRC ................................ CRC 2–3 ..................................................................................... CRC 4–7 ..................................................................................... Non-OECD Member with No CRC ............................................. Sovereign Default ....................................................................... (vi) Corporate debt positions. Except as otherwise provided in paragraph (b)(2)(vi)(B) of this section, an FDICsupervised institution must assign a specific risk-weighting factor to a corporate debt position in accordance with the investment grade methodology in paragraph (b)(2)(vi)(A) of this section. Percent Remaining contractual maturity of 6 months or less ................. Remaining contractual maturity of greater than 6 and up to and including 24 months. Remaining contractual maturity exceeds 24 months ................. ..................................................................................................... ..................................................................................................... ..................................................................................................... ..................................................................................................... (A) Investment grade methodology. (1) For corporate debt positions that are exposures to entities that have issued and outstanding publicly traded instruments, an FDIC-supervised institution must assign a specific riskweighting factor based on the category and remaining contractual maturity of 0.25 1.0 1.6 8.0 12.0 8.0 12.0 the position, in accordance with Table 5 to § 324.210. For purposes of this paragraph (b)(2)(vi)(A)(1), the FDICsupervised institution must determine whether the position is in the investment grade or not investment grade category. TABLE 5 TO § 324.210—SPECIFIC RISK-WEIGHTING FACTORS FOR CORPORATE DEBT POSITIONS UNDER THE INVESTMENT GRADE METHODOLOGY Specific risk-weighting factor (in percent) Category Remaining contractual maturity Investment Grade ................................................................ 6 months or less ................................................................ Greater than 6 and up to and including 24 months .......... Greater than 24 months ..................................................... ........................................................................................ emcdonald on DSK67QTVN1PROD with RULES2 Non-investment Grade ........................................................ (2) An FDIC-supervised institution must assign an 8.0 percent specific riskweighting factor for corporate debt positions that are exposures to entities that do not have publicly traded instruments outstanding. (B) Limitations. (1) An FDICsupervised institution must assign a specific risk-weighting factor of at least 8.0 percent to an interest-only mortgagebacked security that is not a securitization position. (2) An FDIC-supervised institution shall not assign a corporate debt position a specific risk-weighting factor that is lower than the specific riskweighting factor that corresponds to the CRC of the issuer’s home country, if applicable, in Table 1 to § 324.210. (vii) Securitization positions. (A) General requirements. (1) An FDIC- VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 supervised institution that is not an advanced approaches FDIC-supervised institution must assign a specific riskweighting factor to a securitization position using either the simplified supervisory formula approach (SSFA) in paragraph (b)(2)(vii)(C) of this section (and § 324.211) or assign a specific riskweighting factor of 100 percent to the position. (2) An FDIC-supervised institution that is an advanced approaches FDICsupervised institution must calculate a specific risk add-on for a securitization position in accordance with paragraph (b)(2)(vii)(B) of this section if the FDICsupervised institution and the securitization position each qualifies to use the SFA in § 324.143. An FDICsupervised institution that is an advanced approaches FDIC-supervised PO 00000 Frm 00244 Fmt 4701 Sfmt 4700 0.50 2.00 4.00 12.00 institution with a securitization position that does not qualify for the SFA under paragraph (b)(2)(vii)(B) of this section may assign a specific risk-weighting factor to the securitization position using the SSFA in accordance with paragraph (b)(2)(vii)(C) of this section or assign a specific risk-weighting factor of 100 percent to the position. (3) An FDIC-supervised institution must treat a short securitization position as if it is a long securitization position solely for calculation purposes when using the SFA in paragraph (b)(2)(vii)(B) of this section or the SSFA in paragraph (b)(2)(vii)(C) of this section. (B) SFA. To calculate the specific risk add-on for a securitization position using the SFA, an FDIC-supervised institution that is an advanced approaches FDIC-supervised institution E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations must set the specific risk add-on for the position equal to the risk-based capital requirement as calculated under § 324.143. (C) SSFA. To use the SSFA to determine the specific risk-weighting factor for a securitization position, an FDIC-supervised institution must calculate the specific risk-weighting factor in accordance with § 324.211. (D) Nth-to-default credit derivatives. An FDIC-supervised institution must determine a specific risk add-on using the SFA in paragraph (b)(2)(vii)(B) of this section, or assign a specific riskweighting factor using the SSFA in paragraph (b)(2)(vii)(C) of this section to an nth-to-default credit derivative in accordance with this paragraph (b)(2)(vii)(D), regardless of whether the FDIC-supervised institution is a net protection buyer or net protection seller. An FDIC-supervised institution must determine its position in the nth-todefault credit derivative as the largest notional amount of all the underlying exposures. (1) For purposes of determining the specific risk add-on using the SFA in paragraph (b)(2)(vii)(B) of this section or the specific risk-weighting factor for an nth-to-default credit derivative using the SSFA in paragraph (b)(2)(vii)(C) of this section the FDIC-supervised institution must calculate the attachment point and detachment point of its position as follows: (i) The attachment point (parameter A) is the ratio of the sum of the notional amounts of all underlying exposures that are subordinated to the FDICsupervised institution’s position to the total notional amount of all underlying exposures. For purposes of the SSFA, parameter A is expressed as a decimal value between zero and one. For purposes of using the SFA in paragraph (b)(2)(vii)(B) of this section to calculate the specific add-on for its position in an nth-to-default credit derivative, parameter A must be set equal to the credit enhancement level (L) input to the SFA formula in § 324.143. In the case of a first-to-default credit derivative, there are no underlying exposures that are subordinated to the FDIC-supervised institution’s position. In the case of a second-or-subsequent-todefault credit derivative, the smallest (n1) notional amounts of the underlying exposure(s) are subordinated to the FDIC-supervised institution’s position. (ii) The detachment point (parameter D) equals the sum of parameter A plus the ratio of the notional amount of the FDIC-supervised institution’s position in the nth-to-default credit derivative to the total notional amount of all underlying exposures. For purposes of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 the SSFA, parameter A is expressed as a decimal value between zero and one. For purposes of using the SFA in paragraph (b)(2)(vii)(B) of this section to calculate the specific risk add-on for its position in an nth-to-default credit derivative, parameter D must be set to equal the L input plus the thickness of tranche (T) input to the SFA formula in § 324.143. (2) An FDIC-supervised institution that does not use the SFA in paragraph (b)(2)(vii)(B) of this section to determine a specific risk-add on, or the SSFA in paragraph (b)(2)(vii)(C) of this section to determine a specific risk-weighting factor for its position in an nth-to-default credit derivative must assign a specific risk-weighting factor of 100 percent to the position. (c) Modeled correlation trading positions. For purposes of calculating the comprehensive risk measure for modeled correlation trading positions under either paragraph (a)(2)(i) or (a)(2)(ii) of § 324.209, the total specific risk add-on is the greater of: (1) The sum of the FDIC-supervised institution’s specific risk add-ons for each net long correlation trading position calculated under this section; or (2) The sum of the FDIC-supervised institution’s specific risk add-ons for each net short correlation trading position calculated under this section. (d) Non-modeled securitization positions. For securitization positions that are not correlation trading positions and for securitizations that are correlation trading positions not modeled under § 324.209, the total specific risk add-on is the greater of: (1) The sum of the FDIC-supervised institution’s specific risk add-ons for each net long securitization position calculated under this section; or (2) The sum of the FDIC-supervised institution’s specific risk add-ons for each net short securitization position calculated under this section. (e) Equity positions. The total specific risk add-on for a portfolio of equity positions is the sum of the specific risk add-ons of the individual equity positions, as computed under this section. To determine the specific risk add-on of individual equity positions, an FDIC-supervised institution must multiply the absolute value of the current fair value of each net long or net short equity position by the appropriate specific risk-weighting factor as determined under this paragraph: (1) The FDIC-supervised institution must multiply the absolute value of the current fair value of each net long or net short equity position by a specific riskweighting factor of 8.0 percent. For PO 00000 Frm 00245 Fmt 4701 Sfmt 4700 55583 equity positions that are index contracts comprising a well-diversified portfolio of equity instruments, the absolute value of the current fair value of each net long or net short position is multiplied by a specific risk-weighting factor of 2.0 percent.29 (2) For equity positions arising from the following futures-related arbitrage strategies, an FDIC-supervised institution may apply a 2.0 percent specific risk-weighting factor to one side (long or short) of each position with the opposite side exempt from an additional capital requirement: (i) Long and short positions in exactly the same index at different dates or in different market centers; or (ii) Long and short positions in index contracts at the same date in different, but similar indices. (3) For futures contracts on main indices that are matched by offsetting positions in a basket of stocks comprising the index, an FDICsupervised institution may apply a 2.0 percent specific risk-weighting factor to the futures and stock basket positions (long and short), provided that such trades are deliberately entered into and separately controlled, and that the basket of stocks is comprised of stocks representing at least 90.0 percent of the capitalization of the index. (f) Due diligence requirements for securitization positions. (1) An FDICsupervised institution must demonstrate to the satisfaction of the FDIC a comprehensive understanding of the features of a securitization position that would materially affect the performance of the position by conducting and documenting the analysis set forth in paragraph (f)(2) of this section. The FDIC-supervised institution’s analysis must be commensurate with the complexity of the securitization position and the materiality of the position in relation to capital. (2) An FDIC-supervised institution must demonstrate its comprehensive understanding for each securitization position by: (i) Conducting an analysis of the risk characteristics of a securitization position prior to acquiring the position and document such analysis within three business days after acquiring position, considering: (A) Structural features of the securitization that would materially impact the performance of the position, for example, the contractual cash flow waterfall, waterfall-related triggers, 29 A portfolio is well-diversified if it contains a large number of individual equity positions, with no single position representing a substantial portion of the portfolio’s total fair value. E:\FR\FM\10SER2.SGM 10SER2 55584 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations credit enhancements, liquidity enhancements, fair value triggers, the performance of organizations that service the position, and deal-specific definitions of default; (B) Relevant information regarding the performance of the underlying credit exposure(s), for example, the percentage of loans 30, 60, and 90 days past due; default rates; prepayment rates; loans in foreclosure; property types; occupancy; average credit score or other measures of creditworthiness; average loan-to-value ratio; and industry and geographic diversification data on the underlying exposure(s); (C) Relevant market data of the securitization, for example, bid-ask spreads, most recent sales price and historical price volatility, trading volume, implied market rating, and size, depth and concentration level of the market for the securitization; and (D) For resecuritization positions, performance information on the underlying securitization exposures, for example, the issuer name and credit quality, and the characteristics and performance of the exposures underlying the securitization exposures. (ii) On an on-going basis (no less frequently than quarterly), evaluating, reviewing, and updating as appropriate the analysis required under paragraph (f)(1) of this section for each securitization position. emcdonald on DSK67QTVN1PROD with RULES2 § 324.211 Simplified supervisory formula approach (SSFA). (a) General requirements. To use the SSFA to determine the specific riskweighting factor for a securitization position, an FDIC-supervised institution must have data that enables it to assign accurately the parameters described in paragraph (b) of this section. Data used to assign the parameters described in paragraph (b) of this section must be the most currently available data; if the contracts governing the underlying exposures of the securitization require payments on a monthly or quarterly basis, the data used to assign the parameters described in paragraph (b) of this section must be no more than 91 calendar days old. An FDIC-supervised institution that does not have the appropriate data to assign the parameters described in paragraph (b) of this section must assign a specific riskweighting factor of 100 percent to the position. (b) SSFA parameters. To calculate the specific risk-weighting factor for a VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 securitization position using the SSFA, an FDIC-supervised institution must have accurate information on the five inputs to the SSFA calculation described in paragraphs (b)(1) through (b)(5) of this section. (1) KG is the weighted-average (with unpaid principal used as the weight for each exposure) total capital requirement of the underlying exposures calculated using subpart D. KG is expressed as a decimal value between zero and one (that is, an average risk weight of 100 percent represents a value of KG equal to 0.08). (2) Parameter W is expressed as a decimal value between zero and one. Parameter W is the ratio of the sum of the dollar amounts of any underlying exposures of the securitization that meet any of the criteria as set forth in paragraphs (b)(2)(i) through (vi) of this section to the balance, measured in dollars, of underlying exposures: (i) Ninety days or more past due; (ii) Subject to a bankruptcy or insolvency proceeding; (iii) In the process of foreclosure; (iv) Held as real estate owned; (v) Has contractually deferred payments for 90 days or more, other than principal or interest payments deferred on: (A) Federally-guaranteed student loans, in accordance with the terms of those guarantee programs; or (B) Consumer loans, including nonfederally-guaranteed student loans, provided that such payments are deferred pursuant to provisions included in the contract at the time funds are disbursed that provide for period(s) of deferral that are not initiated based on changes in the creditworthiness of the borrower; or (vi) Is in default. (3) Parameter A is the attachment point for the position, which represents the threshold at which credit losses will first be allocated to the position. Except as provided in § 324.210(b)(2)(vii)(D) for nth-to-default credit derivatives, parameter A equals the ratio of the current dollar amount of underlying exposures that are subordinated to the position of the FDIC-supervised institution to the current dollar amount of underlying exposures. Any reserve account funded by the accumulated cash flows from the underlying exposures that is subordinated to the position that contains the FDICsupervised institution’s securitization exposure may be included in the PO 00000 Frm 00246 Fmt 4701 Sfmt 4700 calculation of parameter A to the extent that cash is present in the account. Parameter A is expressed as a decimal value between zero and one. (4) Parameter D is the detachment point for the position, which represents the threshold at which credit losses of principal allocated to the position would result in a total loss of principal. Except as provided in § 324.210(b)(2)(vii)(D) for nth-to-default credit derivatives, parameter D equals parameter A plus the ratio of the current dollar amount of the securitization positions that are pari passu with the position (that is, have equal seniority with respect to credit risk) to the current dollar amount of the underlying exposures. Parameter D is expressed as a decimal value between zero and one. (5) A supervisory calibration parameter, p, is equal to 0.5 for securitization positions that are not resecuritization positions and equal to 1.5 for resecuritization positions. (c) Mechanics of the SSFA. KG and W are used to calculate KA, the augmented value of KG, which reflects the observed credit quality of the underlying exposures. KA is defined in paragraph (d) of this section. The values of parameters A and D, relative to KA determine the specific risk-weighting factor assigned to a position as described in this paragraph and paragraph (d) of this section. The specific risk-weighting factor assigned to a securitization position, or portion of a position, as appropriate, is the larger of the specific risk-weighting factor determined in accordance with this paragraph, paragraph (d) of this section, and a specific risk-weighting factor of 1.6 percent. (1) When the detachment point, parameter D, for a securitization position is less than or equal to KA, the position must be assigned a specific risk-weighting factor of 100 percent. (2) When the attachment point, parameter A, for a securitization position is greater than or equal to KA, the FDIC-supervised institution must calculate the specific risk-weighting factor in accordance with paragraph (d) of this section. (3) When A is less than KA and D is greater than KA, the specific riskweighting factor is a weighted-average of 1.00 and KSSFA calculated under paragraphs (c)(3)(i) and (c)(3)(ii) of this section. For the purpose of this calculation: E:\FR\FM\10SER2.SGM 10SER2 emcdonald on DSK67QTVN1PROD with RULES2 § 324.212 Market risk disclosures. (a) Scope. An FDIC-supervised institution must comply with this section unless it is a consolidated subsidiary of a bank holding company or a depository institution that is subject to these requirements or of a non-U.S. banking organization that is subject to comparable public disclosure requirements in its home jurisdiction. An FDIC-supervised institution must make timely public disclosures each calendar quarter. If a significant change VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 occurs, such that the most recent reporting amounts are no longer reflective of the FDIC-supervised institution’s capital adequacy and risk profile, then a brief discussion of this change and its likely impact must be provided as soon as practicable thereafter. Qualitative disclosures that typically do not change each quarter may be disclosed annually, provided any significant changes are disclosed in the interim. If an FDIC-supervised institution believes that disclosure of PO 00000 Frm 00247 Fmt 4701 Sfmt 4700 55585 specific commercial or financial information would prejudice seriously its position by making public certain information that is either proprietary or confidential in nature, the FDICsupervised institution is not required to disclose these specific items, but must disclose more general information about the subject matter of the requirement, together with the fact that, and the reason why, the specific items of information have not been disclosed. The FDIC-supervised institution’s E:\FR\FM\10SER2.SGM 10SER2 ER10SE13.046</GPH> Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55586 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations management may provide all of the disclosures required by this section in one place on the FDIC-supervised institution’s public Web site or may provide the disclosures in more than one public financial report or other regulatory reports, provided that the FDIC-supervised institution publicly provides a summary table specifically indicating the location(s) of all such disclosures. (b) Disclosure policy. The FDICsupervised institution must have a formal disclosure policy approved by the board of directors that addresses the FDIC-supervised institution’s approach for determining its market risk disclosures. The policy must address the associated internal controls and disclosure controls and procedures. The board of directors and senior management must ensure that appropriate verification of the disclosures takes place and that effective internal controls and disclosure controls and procedures are maintained. One or more senior officers of the FDIC-supervised institution must attest that the disclosures meet the requirements of this subpart, and the board of directors and senior management are responsible for establishing and maintaining an effective internal control structure over financial reporting, including the disclosures required by this section. (c) Quantitative disclosures. (1) For each material portfolio of covered positions, the FDIC-supervised institution must provide timely public disclosures of the following information at least quarterly: (i) The high, low, and mean VaRbased measures over the reporting period and the VaR-based measure at period-end; (ii) The high, low, and mean stressed VaR-based measures over the reporting period and the stressed VaR-based measure at period-end; (iii) The high, low, and mean incremental risk capital requirements over the reporting period and the incremental risk capital requirement at period-end; (iv) The high, low, and mean comprehensive risk capital requirements over the reporting period and the comprehensive risk capital requirement at period-end, with the period-end requirement broken down into appropriate risk classifications (for example, default risk, migration risk, correlation risk); (v) Separate measures for interest rate risk, credit spread risk, equity price risk, foreign exchange risk, and commodity price risk used to calculate the VaRbased measure; and (vi) A comparison of VaR-based estimates with actual gains or losses experienced by the FDIC-supervised institution, with an analysis of important outliers. (2) In addition, the FDIC-supervised institution must disclose publicly the following information at least quarterly: (i) The aggregate amount of onbalance sheet and off-balance sheet securitization positions by exposure type; and (ii) The aggregate amount of correlation trading positions. (d) Qualitative disclosures. For each material portfolio of covered positions, the FDIC-supervised institution must provide timely public disclosures of the following information at least annually after the end of the fourth calendar quarter, or more frequently in the event of material changes for each portfolio: (1) The composition of material portfolios of covered positions; (2) The FDIC-supervised institution’s valuation policies, procedures, and methodologies for covered positions including, for securitization positions, the methods and key assumptions used for valuing such positions, any significant changes since the last reporting period, and the impact of such change; (3) The characteristics of the internal models used for purposes of this subpart. For the incremental risk capital requirement and the comprehensive risk capital requirement, this must include: (i) The approach used by the FDICsupervised institution to determine liquidity horizons; (ii) The methodologies used to achieve a capital assessment that is consistent with the required soundness standard; and (iii) The specific approaches used in the validation of these models; (4) A description of the approaches used for validating and evaluating the accuracy of internal models and modeling processes for purposes of this subpart; (5) For each market risk category (that is, interest rate risk, credit spread risk, equity price risk, foreign exchange risk, and commodity price risk), a description of the stress tests applied to the positions subject to the factor; (6) The results of the comparison of the FDIC-supervised institution’s internal estimates for purposes of this subpart with actual outcomes during a sample period not used in model development; (7) The soundness standard on which the FDIC-supervised institution’s internal capital adequacy assessment under this subpart is based, including a description of the methodologies used to achieve a capital adequacy assessment that is consistent with the soundness standard; (8) A description of the FDICsupervised institution’s processes for monitoring changes in the credit and market risk of securitization positions, including how those processes differ for resecuritization positions; and (9) A description of the FDICsupervised institution’s policy governing the use of credit risk mitigation to mitigate the risks of securitization and resecuritization positions. §§ 324.213 through 324.299 [Reserved] Subpart G—Transition Provisions § 324.300 Transitions. (a) Capital conservation and countercyclical capital buffer. (1) From January 1, 2014, through December 31, 2015, an FDIC-supervised institution is not subject to limits on distributions and discretionary bonus payments under § 324.11 notwithstanding the amount of its capital conservation buffer or any applicable countercyclical capital buffer amount. (2) Beginning January 1, 2016, through December 31, 2018, an FDICsupervised institution’s maximum payout ratio shall be determined as set forth in Table 1 to § 324.300. emcdonald on DSK67QTVN1PROD with RULES2 TABLE 1 TO § 324.300 Transition period Capital conservation buffer Maximum payout ratio (as a percentage of eligible retained income) Calendar year 2016 ......... Greater than 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount). No payout ratio limitation applies under this section. VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00248 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55587 TABLE 1 TO § 324.300—Continued Transition period Calendar year 2017 ......... emcdonald on DSK67QTVN1PROD with RULES2 Calendar year 2018 ......... Less than or equal to 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount), and greater than 0.469 percent (plus 17.25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.469 percent (plus 17.25 percent of any applicable countercyclical capital buffer amount), and greater than 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.156 percent (plus 6.25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.156 percent (plus 6.25 percent of any applicable countercyclical capital buffer amount). Greater than 1.25 percent (plus 50 percent of any applicable countercyclical capital buffer amount). Less than or equal to 1.25 percent (plus 50 percent of any applicable countercyclical capital buffer amount), and greater than 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.625 percent (plus 25 percent of any applicable countercyclical capital buffer amount), and greater than 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.313 percent (plus 12.5 percent of any applicable countercyclical capital buffer amount). Greater than 1.875 percent (plus 75 percent of any applicable countercyclical capital buffer amount). Less than or equal to 1.875 percent (plus 75 percent of any applicable countercyclical capital buffer amount), and greater than 1.406 percent (plus 56.25 percent of any applicable countercyclical capital buffer amount). Less than or equal to 1.406 percent (plus 56.25 percent of any applicable countercyclical capital buffer amount), and greater than 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.938 percent (plus 37.5 percent of any applicable countercyclical capital buffer amount), and greater than 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount). Less than or equal to 0.469 percent (plus 18.75 percent of any applicable countercyclical capital buffer amount). (b) Regulatory capital adjustments and deductions. Beginning January 1, 2014, for an advanced approaches FDICsupervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution must make the capital adjustments and deductions in § 324.22 in accordance with the transition requirements in this paragraph (b). Beginning January 1, 2018, an FDIC-supervised institution must make all regulatory capital adjustments and deductions in accordance with § 324.22. VerDate Mar<15>2010 Maximum payout ratio (as a percentage of eligible retained income) Capital conservation buffer 17:14 Sep 09, 2013 Jkt 229001 (1) Transition deductions from common equity tier 1 capital. Beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDICsupervised institution, and in each case through December 31, 2017, an FDICsupervised institution, must make the deductions required under § 324.22(a)(1)—(7) from common equity tier 1 or tier 1 capital elements in accordance with the percentages set forth in Tables 2 and 3 to § 324.300. (i) An FDIC-supervised institution must deduct the following items from common equity tier 1 and additional tier PO 00000 Frm 00249 Fmt 4701 Sfmt 4700 60 percent. 40 percent. 20 percent. 0 percent. No payout ratio limitation applies under this section. 60 percent. 40 percent. 20 percent. 0 percent. No payout ratio limitation applies under this section. 60 percent. 40 percent. 20 percent. 0 percent. 1 capital in accordance with the percentages set forth in Table 2 to § 324.300: Goodwill (§ 324.22(a)(1)), DTAs that arise from net operating loss and tax credit carryforwards (§ 324.22(a)(3)), a gain-on-sale in connection with a securitization exposure (§ 324.22(a)(4)), defined benefit pension fund assets (§ 324.22(a)(5)), expected credit loss that exceeds eligible credit reserves (for advanced approaches FDIC-supervised institutions that have completed the parallel run process and that have received notifications from the FDIC pursuant to § 324.121(d) of subpart E) (§ 324.22(a)(6)), and financial subsidiaries (§ 324.22(a)(7)). E:\FR\FM\10SER2.SGM 10SER2 55588 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 2 TO § 324.300 Transition deductions under § 324.22(a)(1), (a)(7), (a)(8), and (a)(9) Transition period Percentage of the deductions from common equity tier 1 capital Calendar Calendar Calendar Calendar Calendar year year year year year 2014 ................................................................................. 2015 ................................................................................. 2016 ................................................................................. 2017 ................................................................................. 2018, and thereafter ........................................................ (ii) An FDIC-supervised institution must deduct from common equity tier 1 capital any intangible assets other than goodwill and MSAs in accordance with Transition deductions under § 324.22(a)(3)– (6) Percentage of the deductions from common equity tier 1 capital Percentage of the deductions from tier 1 capital 20 40 60 80 100 80 60 40 20 0 100 100 100 100 100 the percentages set forth in Table 3 to § 324.300. (iii) An FDIC-supervised institution must apply a 100 percent risk-weight to the aggregate amount of intangible assets other than goodwill and MSAs that are not required to be deducted from common equity tier 1 capital under this section. TABLE 3 TO § 324.300 Transition deductions under § 324.22(a)(2)— Percentage of the deductions from common equity tier 1 capital Transition period Calendar Calendar Calendar Calendar Calendar year year year year year 2014 ............................................................................................................................. 2015 ............................................................................................................................. 2016 ............................................................................................................................. 2017 ............................................................................................................................. 2018, and thereafter .................................................................................................... (2) Transition adjustments to common equity tier 1 capital. Beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDICsupervised institution that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution, must allocate the regulatory adjustments related to changes in the fair value of liabilities due to changes in the FDIC-supervised institution’s own credit risk (§ 324.22(b)(1)(iii)) between common equity tier 1 capital and tier 1 capital in accordance with the percentages set forth in Table 4 to § 324.300. (i) If the aggregate amount of the adjustment is positive, the FDIC- 20 40 60 80 100 supervised institution must allocate the deduction between common equity tier 1 and tier 1 capital in accordance with Table 4 to § 324.300. (ii) If the aggregate amount of the adjustment is negative, the FDICsupervised institution must add back the adjustment to common equity tier 1 capital or to tier 1 capital, in accordance with Table 4 to § 324.300. TABLE 4 TO § 324.300 Transition adjustments under § 324.22(b)(2) Transition period emcdonald on DSK67QTVN1PROD with RULES2 Calendar Calendar Calendar Calendar Calendar year year year year year Percentage of the adjustment applied to common equity tier 1 capital 20 40 60 80 100 80 60 40 20 0 2014 ..................................................... 2015 ..................................................... 2016 ..................................................... 2017 ..................................................... 2018, and thereafter ............................ (3) Transition adjustments to AOCI for an advanced approaches FDICsupervised institution and an FDICsupervised institution that has not made an AOCI opt-out election under § 324.22(b)(2). Beginning January 1, 2014, for an advanced approaches FDICsupervised institution, and beginning January 1, 2015, for an FDIC-supervised VerDate Mar<15>2010 Percentage of the adjustment applied to tier 1 capital 17:14 Sep 09, 2013 Jkt 229001 institution that is not an advanced approaches FDIC-supervised institution and that has not made an AOCI opt-out election under § 324.22(b)(2), and in each case through December 31, 2017, an FDIC-supervised institution must adjust common equity tier 1 capital with respect to the transition AOCI PO 00000 Frm 00250 Fmt 4701 Sfmt 4700 adjustment amount (transition AOCI adjustment amount): (i) The transition AOCI adjustment amount is the aggregate amount of an FDIC-supervised institution’s: (A) Unrealized gains on available-forsale securities that are preferred stock classified as an equity security under E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations GAAP or available-for-sale equity exposures, plus (B) Net unrealized gains or losses on available-for-sale securities that are not preferred stock classified as an equity security under GAAP or available-forsale equity exposures, plus (C) Any amounts recorded in AOCI attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (excluding, at the FDIC- supervised institution’s option, the portion relating to pension assets deducted under § 324.22(a)(5)), plus (D) Accumulated net gains or losses on cash flow hedges related to items that are reported on the balance sheet at fair value included in AOCI, plus (E) Net unrealized gains or losses on held-to-maturity securities that are included in AOCI. (ii) An FDIC-supervised institution must make the following adjustment to its common equity tier 1 capital: 55589 (A) If the transition AOCI adjustment amount is positive, the appropriate amount must be deducted from common equity tier 1 capital in accordance with Table 5 to § 324.300. (B) If the transition AOCI adjustment amount is negative, the appropriate amount must be added back to common equity tier 1 capital in accordance with Table 5 to § 324.300. TABLE 5 TO § 324.300 Percentage of the transition AOCI adjustment amount to be applied to common equity tier 1 capital Transition period Calendar Calendar Calendar Calendar Calendar year year year year year 2014 2015 2016 2017 2018 ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. and thereafter ..................................................................................................... (iii) An FDIC-supervised institution may include in tier 2 capital the percentage of unrealized gains on available-for-sale preferred stock classified as an equity security under GAAP and available-for-sale equity 80 60 40 20 0 exposures as set forth in Table 6 to § 324.300. TABLE 6 TO § 324.300 Percentage of unrealized gains on availablefor-sale preferred stock classified as an equity security under GAAP and available-forsale equity exposures that may be included in tier 2 capital Transition period Calendar Calendar Calendar Calendar Calendar year year year year year 2014 2015 2016 2017 2018 ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. and thereafter ..................................................................................................... emcdonald on DSK67QTVN1PROD with RULES2 (4) Additional transition deductions from regulatory capital. (i) Beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDICsupervised institution, and in each case through December 31, 2017, an FDICsupervised institution must use Table 7 to § 324.300 to determine the amount of investments in capital instruments and the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds (§ 324.22(d)) (that is, MSAs, DTAs arising from temporary differences that the FDIC-supervised institution could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock) that must be deducted from common equity tier 1 capital. (ii) Beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution must apply 36 27 18 9 0 a 100 percent risk-weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted under this section. As set forth in § 324.22(d)(2), beginning January 1, 2018, an FDIC-supervised institution must apply a 250 percent risk-weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted from common equity tier 1 capital. TABLE 7 TO § 324.300 Transition period Transitions for deductions under § 324.22(c) and (d)—Percentage of additional deductions from regulatory capital Calendar year 2014 ............................................................................................................................. Calendar year 2015 ............................................................................................................................. Calendar year 2016 ............................................................................................................................. 20 40 60 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00251 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 55590 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations TABLE 7 TO § 324.300—Continued Transition period Transitions for deductions under § 324.22(c) and (d)—Percentage of additional deductions from regulatory capital Calendar year 2017 ............................................................................................................................. Calendar year 2018 and thereafter ..................................................................................................... 80 100 (iii) For purposes of calculating the transition deductions in this paragraph (b)(4), beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution’s 15 percent common equity tier 1 capital deduction threshold for MSAs, DTAs arising from temporary differences that the FDICsupervised institution could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock is equal to 15 percent of the sum of the FDIC-supervised institution’s common equity tier 1 elements, after regulatory adjustments and deductions required under § 324.22(a) through (c) (transition 15 percent common equity tier 1 capital deduction threshold). (iv) Beginning January 1, 2018, an FDIC-supervised institution must calculate the 15 percent common equity tier 1 capital deduction threshold in accordance with § 324.22(d). (c) Non-qualifying capital instruments. Depository institutions. (1) Beginning on January 1, 2014, a depository institution that is an advanced approaches FDIC-supervised institution, and beginning on January 1, 2015, all other depository institutions may include in regulatory capital debt or equity instruments issued prior to September 12, 2010, that do not meet the criteria for additional tier 1 or tier 2 capital instruments in § 324.20 but that were included in tier 1 or tier 2 capital respectively as of September 12, 2010 (non-qualifying capital instruments issued prior to September 12, 2010) up to the percentage of the outstanding principal amount of such non-qualifying capital instruments as of January 1, 2014 in accordance with Table 8 to § 324.300. (2) Table 8 to § 324.300 applies separately to tier 1 and tier 2 nonqualifying capital instruments. (3) The amount of non-qualifying capital instruments that cannot be included in additional tier 1 capital under this section may be included in tier 2 capital without limitation, provided that the instruments meet the criteria for tier 2 capital instruments under § 324.20(d). TABLE 8 TO § 324.300 Percentage of non-qualifying capital instruments includable in additional tier 1 or tier 2 capital Transition period (calendar year) Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year year year year 2014 2015 2016 2017 2018 2019 2020 2021 2022 ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. and thereafter ..................................................................................................... emcdonald on DSK67QTVN1PROD with RULES2 (d) Minority interest—(1) Surplus minority interest. Beginning January 1, 2014, for an advanced approaches FDICsupervised institution, and beginning January 1, 2015, for an FDIC-supervised institution that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution may include in common equity tier 1 capital, tier 1 capital, or total capital the percentage of the common equity tier 1 minority interest, tier 1 minority interest and total capital minority interest outstanding as of January 1, 2014 that exceeds any common equity tier 1 minority interest, tier 1 minority interest or total capital minority interest includable under § 324.21 (surplus minority interest), respectively, as set forth in Table 9 to § 324.300. (2) Non-qualifying minority interest. Beginning January 1, 2014, for an advanced approaches FDIC-supervised institution, and beginning January 1, 2015, for an FDIC-supervised institution 80 70 60 50 40 30 20 10 0 that is not an advanced approaches FDIC-supervised institution, and in each case through December 31, 2017, an FDIC-supervised institution may include in tier 1 capital or total capital the percentage of the tier 1 minority interest and total capital minority interest outstanding as of January 1, 2014 that does not meet the criteria for additional tier 1 or tier 2 capital instruments in § 324.20 (non-qualifying minority interest), as set forth in Table 9 to § 324.300. TABLE 9 TO § 324.300 Transition period Percentage of the amount of surplus or nonqualifying minority interest that can be included in regulatory capital during the transition period Calendar year 2014 ............................................................................................................................. 80 VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00252 Fmt 4701 Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55591 TABLE 9 TO § 324.300—Continued Percentage of the amount of surplus or nonqualifying minority interest that can be included in regulatory capital during the transition period Transition period Calendar Calendar Calendar Calendar year year year year 2015 2016 2017 2018 ............................................................................................................................. ............................................................................................................................. ............................................................................................................................. and thereafter ..................................................................................................... (e) Prompt corrective action. For purposes of subpart H of this part, an FDIC-supervised institution must calculate its capital measures and tangible equity ratio in accordance with the transition provisions in this section. §§ 324.301 through 324.399 [Reserved] Subpart H—Prompt Corrective Action emcdonald on DSK67QTVN1PROD with RULES2 § 324.401 Authority, purpose, scope, other supervisory authority, disclosure of capital categories, and transition procedures. (a) Authority. This subpart H is issued by the FDIC pursuant to section 38 of the Federal Deposit Insurance Act (FDI Act), as added by section 131 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub.L. 102– 242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o). (b) Purpose. Section 38 of the FDI Act establishes a framework of supervisory actions for insured depository institutions that are not adequately capitalized. The principal purpose of this subpart is to define, for FDICsupervised institutions, the capital measures and capital levels, and for insured branches of foreign banks, comparable asset-based measures and levels, that are used for determining the supervisory actions authorized under section 38 of the FDI Act. This subpart also establishes procedures for submission and review of capital restoration plans and for issuance and review of directives and orders pursuant to section 38 of the FDI Act. (c) Scope. Until January 1, 2015, subpart B of part 325 of this chapter will continue to apply to banks and insured branches of foreign banks for which the FDIC is the appropriate Federal banking agency. Until January 1, 2015, subpart Y of part 390 of this chapter will continue to apply to state savings associations. Beginning on, and thereafter, January 1, 2015, this subpart H implements the provisions of section 38 of the FDI Act as they apply to FDIC-supervised institutions and insured branches of foreign banks for which the FDIC is the appropriate Federal banking agency. Certain of these provisions also apply to officers, directors and employees of VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 those insured institutions. In addition, certain provisions of this subpart apply to all insured depository institutions that are deemed critically undercapitalized. (d) Other supervisory authority. Neither section 38 of the FDI Act nor this subpart H in any way limits the authority of the FDIC under any other provision of law to take supervisory actions to address unsafe or unsound practices, deficient capital levels, violations of law, unsafe or unsound conditions, or other practices. Action under section 38 of the FDI Act and this subpart H may be taken independently of, in conjunction with, or in addition to any other enforcement action available to the FDIC, including issuance of cease and desist orders, capital directives, approval or denial of applications or notices, assessment of civil money penalties, or any other actions authorized by law. (e) Disclosure of capital categories. The assignment of an FDIC-supervised institution or an insured branch of a foreign bank for which the FDIC is the appropriate Federal banking agency under this subpart H within a particular capital category is for purposes of implementing and applying the provisions of section 38 of the FDI Act. Unless permitted by the FDIC or otherwise required by law, no FDICsupervised institution or insured branch of a foreign bank for which the FDIC is the appropriate Federal banking agency may state in any advertisement or promotional material its capital category under this subpart H or that the FDIC or any other Federal banking agency has assigned it to a particular capital category. (f) Transition procedures—(1) Definitions applicable before January 1, 2015, for certain FDIC-supervised institutions. Before January 1, 2015, notwithstanding any other requirement in this subpart H and with respect to any FDIC-supervised institution that is not an advanced approaches FDICsupervised institution: (i) The definitions of leverage ratio, tangible equity, tier 1 capital, tier 1 riskbased capital, and total risk-based PO 00000 Frm 00253 Fmt 4701 Sfmt 4700 60 40 20 0 capital as calculated or defined under Appendix A to part 325 or Appendix B to part 325, as applicable, remain in effect for purposes of this subpart H; and (ii) The term total assets shall have the meaning provided in 12 CFR 325.2(x). (2) Timing. The calculation of the definitions of common equity tier 1 capital, the common equity tier 1 riskbased capital ratio, the leverage ratio, the supplementary leverage ratio, tangible equity, tier 1 capital, the tier 1 risk-based capital ratio, total assets, total leverage exposure, the total risk-based capital ratio, and total risk-weighted assets under this subpart H is subject to the timing provisions at 12 CFR 324.1(f) and the transitions at 12 CFR part 324, subpart G. (g) For purposes of subpart H, as of January 1, 2015, total assets means quarterly average total assets as reported in an FDIC-supervised institution’s Call Report, minus amounts deducted from tier 1 capital under § 324.22(a), (c), and (d). At its discretion, the FDIC may calculate total assets using an FDICsupervised institution’s period-end assets rather than quarterly average assets. § 324.402 Notice of capital category. (a) Effective date of determination of capital category. An FDIC-supervised institution shall be deemed to be within a given capital category for purposes of section 38 of the FDI Act and this subpart H as of the date the FDICsupervised institution is notified of, or is deemed to have notice of, its capital category, pursuant to paragraph (b) of this section. (b) Notice of capital category. An FDIC-supervised institution shall be deemed to have been notified of its capital levels and its capital category as of the most recent date: (1) A Call Report is required to be filed with the FDIC; (2) A final report of examination is delivered to the FDIC-supervised institution; or (3) Written notice is provided by the FDIC to the FDIC-supervised institution of its capital category for purposes of E:\FR\FM\10SER2.SGM 10SER2 55592 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations section 38 of the FDI Act and this subpart or that the FDIC-supervised institution’s capital category has changed as provided in § 324.403(d). (c) Adjustments to reported capital levels and capital category — (1) Notice of adjustment by bank or state savings association. An FDIC-supervised institution shall provide the appropriate FDIC regional director with written notice that an adjustment to the FDICsupervised institution’s capital category may have occurred no later than 15 calendar days following the date that any material event has occurred that would cause the FDIC-supervised institution to be placed in a lower capital category from the category assigned to the FDIC-supervised institution for purposes of section 38 of the FDI Act and this subpart H on the basis of the FDIC-supervised institution’s most recent Call Report or report of examination. (2) Determination by the FDIC to change capital category. After receiving notice pursuant to paragraph (c)(1) of this section, the FDIC shall determine whether to change the capital category of the FDIC-supervised institution and shall notify the bank or state savings association of the FDIC’s determination. emcdonald on DSK67QTVN1PROD with RULES2 § 324.403 Capital measures and capital category definitions. (a) Capital measures. For purposes of section 38 of the FDI Act and this subpart H, the relevant capital measures shall be: (1) The total risk-based capital ratio; (2) The Tier 1 risk-based capital ratio; and (3) The common equity tier 1 ratio; (4) The leverage ratio; (5) The tangible equity to total assets ratio; and (6) Beginning January 1, 2018, the supplementary leverage ratio calculated in accordance with § 324.11 for advanced approaches FDIC-supervised institutions that are subject to subpart E of this part. (b) Capital categories. For purposes of section 38 of the FDI Act and this subpart, an FDIC-supervised institution shall be deemed to be: (1) ‘‘Well capitalized’’ if it: (i) Has a total risk-based capital ratio of 10.0 percent or greater; and (ii) Has a Tier 1 risk-based capital ratio of 8.0 percent or greater; and (iii) Has a common equity tier 1 capital ratio of 6.5 percent or greater; and (iv) Has a leverage ratio of 5.0 percent or greater; and (v) Is not subject to any written agreement, order, capital directive, or prompt corrective action directive VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 issued by the FDIC pursuant to section 8 of the FDI Act (12 U.S.C. 1818), the International Lending Supervision Act of 1983 (12 U.S.C. 3907), or the Home Owners’ Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)), or section 38 of the FDI Act (12 U.S.C. 1831o), or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if it: (i) Has a total risk-based capital ratio of 8.0 percent or greater; and (ii) Has a Tier 1 risk-based capital ratio of 6.0 percent or greater; and (iii) Has a common equity tier 1 capital ratio of 4.5 percent or greater; and (iv) Has a leverage ratio of 4.0 percent or greater; and (v) Does not meet the definition of a well capitalized bank. (vi) Beginning January 1, 2018, an advanced approaches FDIC-supervised institution will be deemed to be ‘‘adequately capitalized’’ if it satisfies paragraphs (b)(2)(i) through (v) of this section and has a supplementary leverage ratio of 3.0 percent or greater, as calculated in accordance with § 324.11 of subpart B of this part. (3) ‘‘Undercapitalized’’ if it: (i) Has a total risk-based capital ratio that is less than 8.0 percent; or (ii) Has a Tier 1 risk-based capital ratio that is less than 6.0 percent; or (iii) Has a common equity tier 1 capital ratio that is less than 4.5 percent; or (iv) Has a leverage ratio that is less than 4.0 percent. (v) Beginning January 1, 2018, an advanced approaches FDIC-supervised institution will be deemed to be ‘‘undercapitalized’’ if it has a supplementary leverage ratio of less than 3.0 percent, as calculated in accordance with § 324.11. (4) ‘‘Significantly undercapitalized’’ if it has: (i) A total risk-based capital ratio that is less than 6.0 percent; or (ii) A Tier 1 risk-based capital ratio that is less than 4.0 percent; or (iii) A common equity tier 1 capital ratio that is less than 3.0 percent; or (iv) A leverage ratio that is less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the insured depository institution has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. (c) Capital categories for insured branches of foreign banks. For purposes of the provisions of section 38 of the FDI Act and this subpart H, an insured branch of a foreign bank shall be deemed to be: (1) ‘‘Well capitalized’’ if the insured branch: PO 00000 Frm 00254 Fmt 4701 Sfmt 4700 (i) Maintains the pledge of assets required under § 347.209 of this chapter; and (ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 108 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Has not received written notification from: (A) The OCC to increase its capital equivalency deposit pursuant to 12 CFR 28.15, or to comply with asset maintenance requirements pursuant to 12 CFR 28.20; or (B) The FDIC to pledge additional assets pursuant to § 347.209 of this chapter or to maintain a higher ratio of eligible assets pursuant to § 347.210 of this chapter. (2) ‘‘Adequately capitalized’’ if the insured branch: (i) Maintains the pledge of assets required under § 347.209 of this chapter; and (ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Does not meet the definition of a well capitalized insured branch. (3) ‘‘Undercapitalized’’ if the insured branch: (i) Fails to maintain the pledge of assets required under § 347.209 of this chapter; or (ii) Fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (4) ‘‘Significantly undercapitalized’’ if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 104 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (5) ‘‘Critically undercapitalized’’ if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 102 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (d) Reclassifications based on supervisory criteria other than capital. The FDIC may reclassify a well capitalized FDIC-supervised institution as adequately capitalized and may require an adequately capitalized FDICsupervised institution or an undercapitalized FDIC-supervised institution to comply with certain mandatory or discretionary supervisory E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations actions as if the FDIC-supervised institution were in the next lower capital category (except that the FDIC may not reclassify a significantly undercapitalized FDIC-supervised institution as critically undercapitalized) (each of these actions are hereinafter referred to generally as ‘‘reclassifications’’) in the following circumstances: (1) Unsafe or unsound condition. The FDIC has determined, after notice and opportunity for hearing pursuant to § 308.202(a) of this chapter, that the FDIC-supervised institution is in unsafe or unsound condition; or (2) Unsafe or unsound practice. The FDIC has determined, after notice and opportunity for hearing pursuant to § 308.202(a) of this chapter, that, in the most recent examination of the FDICsupervised institution, the FDICsupervised institution received and has not corrected a less-than-satisfactory rating for any of the categories of asset quality, management, earnings, or liquidity. emcdonald on DSK67QTVN1PROD with RULES2 § 324.404 Capital restoration plans. (a) Schedule for filing plan—(1) In general. An FDIC-supervised institution shall file a written capital restoration plan with the appropriate FDIC regional director within 45 days of the date that the FDIC-supervised institution receives notice or is deemed to have notice that the FDIC-supervised institution is undercapitalized, significantly undercapitalized, or critically undercapitalized, unless the FDIC notifies the FDIC-supervised institution in writing that the plan is to be filed within a different period. An adequately capitalized FDIC-supervised institution that has been required pursuant to § 324.403(d) to comply with supervisory actions as if the FDIC-supervised institution were undercapitalized is not required to submit a capital restoration plan solely by virtue of the reclassification. (2) Additional capital restoration plans. Notwithstanding paragraph (a)(1) of this section, an FDIC-supervised institution that has already submitted and is operating under a capital restoration plan approved under section 38 and this subpart H is not required to submit an additional capital restoration plan based on a revised calculation of its capital measures or a reclassification of the institution under § 324.403 unless the FDIC notifies the FDIC-supervised institution that it must submit a new or revised capital plan. An FDICsupervised institution that is notified that it must submit a new or revised capital restoration plan shall file the plan in writing with the appropriate VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 FDIC regional director within 45 days of receiving such notice, unless the FDIC notifies it in writing that the plan must be filed within a different period. (b) Contents of plan. All financial data submitted in connection with a capital restoration plan shall be prepared in accordance with the instructions provided on the Call Report, unless the FDIC instructs otherwise. The capital restoration plan shall include all of the information required to be filed under section 38(e)(2) of the FDI Act. An FDICsupervised institution that is required to submit a capital restoration plan as a result of its reclassification pursuant to § 324.403(d) shall include a description of the steps the FDIC-supervised institution will take to correct the unsafe or unsound condition or practice. No plan shall be accepted unless it includes any performance guarantee described in section 38(e)(2)(C) of the FDI Act by each company that controls the FDICsupervised institution. (c) Review of capital restoration plans. Within 60 days after receiving a capital restoration plan under this subpart, the FDIC shall provide written notice to the FDIC-supervised institution of whether the plan has been approved. The FDIC may extend the time within which notice regarding approval of a plan shall be provided. (d) Disapproval of capital plan. If a capital restoration plan is not approved by the FDIC, the FDIC-supervised institution shall submit a revised capital restoration plan within the time specified by the FDIC. Upon receiving notice that its capital restoration plan has not been approved, any undercapitalized FDIC-supervised institution (as defined in § 324.403(b)) shall be subject to all of the provisions of section 38 of the FDI Act and this subpart H applicable to significantly undercapitalized institutions. These provisions shall be applicable until such time as a new or revised capital restoration plan submitted by the FDICsupervised institution has been approved by the FDIC. (e) Failure to submit capital restoration plan. An FDIC-supervised institution that is undercapitalized (as defined in § 324.403(b)) and that fails to submit a written capital restoration plan within the period provided in this section shall, upon the expiration of that period, be subject to all of the provisions of section 38 and this subpart applicable to significantly undercapitalized institutions. (f) Failure to implement capital restoration plan. Any undercapitalized FDIC-supervised institution that fails in any material respect to implement a PO 00000 Frm 00255 Fmt 4701 Sfmt 4700 55593 capital restoration plan shall be subject to all of the provisions of section 38 of the FDI Act and this subpart H applicable to significantly undercapitalized institutions. (g) Amendment of capital restoration plan. An FDIC-supervised institution that has filed an approved capital restoration plan may, after prior written notice to and approval by the FDIC, amend the plan to reflect a change in circumstance. Until such time as a proposed amendment has been approved, the FDIC-supervised institution shall implement the capital restoration plan as approved prior to the proposed amendment. (h) Performance guarantee by companies that control an FDICsupervised institution—(1) Limitation on liability—(i) Amount limitation. The aggregate liability under the guarantee provided under section 38 and this subpart H for all companies that control a specific FDIC-supervised institution that is required to submit a capital restoration plan under this subpart H shall be limited to the lesser of: (A) An amount equal to 5.0 percent of the FDIC-supervised institution’s total assets at the time the FDIC-supervised institution was notified or deemed to have notice that the FDIC-supervised institution was undercapitalized; or (B) The amount necessary to restore the relevant capital measures of the FDIC-supervised institution to the levels required for the FDIC-supervised institution to be classified as adequately capitalized, as those capital measures and levels are defined at the time that the FDIC-supervised institution initially fails to comply with a capital restoration plan under this subpart H. (ii) Limit on duration. The guarantee and limit of liability under section 38 of the FDI Act and this subpart H shall expire after the FDIC notifies the FDICsupervised institution that it has remained adequately capitalized for each of four consecutive calendar quarters. The expiration or fulfillment by a company of a guarantee of a capital restoration plan shall not limit the liability of the company under any guarantee required or provided in connection with any capital restoration plan filed by the same FDIC-supervised institution after expiration of the first guarantee. (iii) Collection on guarantee. Each company that controls a given FDICsupervised institution shall be jointly and severally liable for the guarantee for such FDIC-supervised institution as required under section 38 and this subpart H, and the FDIC may require and collect payment of the full amount E:\FR\FM\10SER2.SGM 10SER2 55594 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations of that guarantee from any or all of the companies issuing the guarantee. (2) Failure to provide guarantee. In the event that an FDIC-supervised institution that is controlled by any company submits a capital restoration plan that does not contain the guarantee required under section 38(e)(2) of the FDI Act, the FDIC-supervised institution shall, upon submission of the plan, be subject to the provisions of section 38 and this subpart H that are applicable to FDIC-supervised institutions that have not submitted an acceptable capital restoration plan. (3) Failure to perform guarantee. Failure by any company that controls an FDIC-supervised institution to perform fully its guarantee of any capital plan shall constitute a material failure to implement the plan for purposes of section 38(f) of the FDI Act. Upon such failure, the FDIC-supervised institution shall be subject to the provisions of section 38 and this subpart H that are applicable to FDIC-supervised institutions that have failed in a material respect to implement a capital restoration plan. emcdonald on DSK67QTVN1PROD with RULES2 § 324.405 Mandatory and discretionary supervisory actions. (a) Mandatory supervisory actions— (1) Provisions applicable to all FDICsupervised institutions. All FDICsupervised institutions are subject to the restrictions contained in section 38(d) of the FDI Act on payment of capital distributions and management fees. (2) Provisions applicable to undercapitalized, significantly undercapitalized, and critically undercapitalized FDIC-supervised institution. Immediately upon receiving notice or being deemed to have notice, as provided in § 324.402, that the FDICsupervised institution is undercapitalized, significantly undercapitalized, or critically undercapitalized, it shall become subject to the provisions of section 38 of the FDI Act: (i) Restricting payment of capital distributions and management fees (section 38(d) of the FDI Act); (ii) Requiring that the FDIC monitor the condition of the FDIC-supervised institution (section 38(e)(1) of the FDI Act); (iii) Requiring submission of a capital restoration plan within the schedule established in this subpart (section 38(e)(2) of the FDI Act); (iv) Restricting the growth of the FDIC-supervised institution’s assets (section 38(e)(3) of the FDI Act); and (v) Requiring prior approval of certain expansion proposals (section 38(e)(4) of the FDI Act). VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 (3) Additional provisions applicable to significantly undercapitalized, and critically undercapitalized FDICsupervised institutions. In addition to the provisions of section 38 of the FDI Act described in paragraph (a)(2) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 324.402, that the FDICsupervised institution is significantly undercapitalized, or critically undercapitalized, or that the FDICsupervised institution is subject to the provisions applicable to institutions that are significantly undercapitalized because the FDIC-supervised institution failed to submit or implement in any material respect an acceptable capital restoration plan, the FDIC-supervised institution shall become subject to the provisions of section 38 of the FDI Act that restrict compensation paid to senior executive officers of the institution (section 38(f)(4) of the FDI Act). (4) Additional provisions applicable to critically undercapitalized institutions. (i) In addition to the provisions of section 38 of the FDI Act described in paragraphs (a)(2) and (a)(3) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 324.402, that the insured depository institution is critically undercapitalized, the institution is prohibited from doing any of the following without the FDIC’s prior written approval: (A) Entering into any material transaction other than in the usual course of business, including any investment, expansion, acquisition, sale of assets, or other similar action with respect to which the depository institution is required to provide notice to the appropriate Federal banking agency; (B) Extending credit for any highly leveraged transaction; (C) Amending the institution’s charter or bylaws, except to the extent necessary to carry out any other requirement of any law, regulation, or order; (D) Making any material change in accounting methods; (E) Engaging in any covered transaction (as defined in section 23A(b) of the Federal Reserve Act (12 U.S.C. 371c(b))); (F) Paying excessive compensation or bonuses; (G) Paying interest on new or renewed liabilities at a rate that would increase the institution’s weighted average cost of funds to a level significantly exceeding the prevailing rates of interest on insured deposits in the institution’s normal market areas; and PO 00000 Frm 00256 Fmt 4701 Sfmt 4700 (H) Making any principal or interest payment on subordinated debt beginning 60 days after becoming critically undercapitalized except that this restriction shall not apply, until July 15, 1996, with respect to any subordinated debt outstanding on July 15, 1991, and not extended or otherwise renegotiated after July 15, 1991. (ii) In addition, the FDIC may further restrict the activities of any critically undercapitalized institution to carry out the purposes of section 38 of the FDI Act. (iii) The FDIC-supervised institution must remain in compliance with the plan or is operating under a written agreement with the appropriate Federal banking agency. (b) Discretionary supervisory actions. In taking any action under section 38 of the FDI Act that is within the FDIC’s discretion to take in connection with: (1) An insured depository institution that is deemed to be undercapitalized, significantly undercapitalized, or critically undercapitalized, or has been reclassified as undercapitalized, or significantly undercapitalized; or (2) An officer or director of such institution, the FDIC shall follow the procedures for issuing directives under §§ 308.201 and 308.203 of this chapter, unless otherwise provided in section 38 of the FDI Act or this subpart H. PART 327—ASSESSMENTS 14. The authority citation for part 327 continues to read as follows: ■ Authority: 12 U.S.C. 1441, 1813, 1815, 1817–19, 1821. 15. Appendix A to subpart A of part 327 is amended by revising footnote 5 in section VI. to read as follows: ■ Appendix A to Subpart A of Part 327— Method to Derive Pricing Multipliers and Uniform Amount * * * * * VI. Description of Scorecard Measures * * * * * 5 Market risk capital is defined in Appendix C of part 325 of the FDIC Rules and Regulations or subpart F of Part 324 of the FDIC Rules and Regulations, as applicable. * * * * * 16. Appendix C to subpart A of part 327 is amended by revising the first paragraph in section I.A.5 to read as follows: ■ Appendix C to Subpart A to Part 327 * * * I. * * * A. * * * E:\FR\FM\10SER2.SGM 10SER2 * * Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 5. Higher-Risk Securitizations Higher-risk securitizations are defined as securitizations or securitization exposures (except securitizations classified as trading book), where, in aggregate, more than 50 percent of the assets backing the securitization meet either the criteria for higher-risk C & I loans or securities, higher-risk consumer loans, or nontraditional mortgage loans, except those classified as trading book. A securitization is as defined in 12 CFR part 325, Appendix A, Section II(B)(16), or in 12 CFR 324.2, as applicable, as they may be amended from time to time. A higher-risk securitization excludes the maximum amount that is recoverable from the U.S. government under guarantee or insurance provisions. * * * * * PART 333—EXTENSION OF CORPORATE POWERS 17. The authority citation for part 333 continues to read as follows: ■ Authority: 12 U.S.C. 1816, 1818, 1819 (‘‘Seventh’’, ‘‘Eighth’’ and ‘‘Tenth’’), 1828, 1828(m), 1831p–1(c). Conversions from mutual to stock PART 337—UNSAFE AND UNSOUND BANKING PRACTICES 19. The authority citation for part 337 continues to read as follows: ■ Authority: 12 U.S.C. 375a(4), 375b, 1816, 1818(a), 1818(b), 1819, 1820(d)(10), 1821(f), 1828(j)(2), 1831, 1831f. 20. Section 337.6 is amended by revising footnotes 12 and 13 in paragraph (a) to read as follows: emcdonald on DSK67QTVN1PROD with RULES2 ■ * * * * 12 For the most part, the capital measure terms are defined in the following regulations: FDIC—12 CFR part 325, subpart B or 12 CFR part 324, subpart H, as applicable; Board of Governors of the Federal Reserve System—12 CFR part 208; and Office VerDate Mar<15>2010 17:14 Sep 09, 2013 * * * * * 21. Section 337.12 is amended by revising paragraph (b)(2) to read as follows: ■ Frequency of examination. * * * * (b) * * * (2) The bank is well capitalized as defined in § 325.103(b)(1) of this chapter or § 324.403(b)(1) of this chapter, as applicable. * * * * * PART 347—INTERNATIONAL BANKING 22. The authority citation for part 347 continues to read as follows: ■ Authority: 12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103, 3104, 3105, 3108, 3109; Title IX, Pub.L. 98–181, 97 Stat. 1153. 23. Section 347.102 is amended by revising paragraphs (u) and (v) to read as follows: ■ § 347.102 Definition. * * * * * (u) Tier 1 capital means Tier 1 capital as defined in § 325.2 of this chapter or § 324.2 of this chapter, as applicable. (v) Well capitalized means well capitalized as defined in § 325.103 of this chapter or § 324.403 of this chapter, as applicable. PART 349—RETAIL FOREIGN EXCHANGE TRANSACTIONS Brokered deposits. * * * (a) Scope. * * * As determined by the Board of Directors of the FDIC on a case-by-case basis, the requirements of paragraphs (d), (e), and (f) of this section do not apply to mutual-to-stock conversions of insured mutual state savings banks whose capital category under § 325.103 of this chapter or § 324.403, as applicable, is ‘‘undercapitalized’’, ‘‘significantly undercapitalized’’ or ‘‘critically undercapitalized’’. * * * * * * * * § 337.6 § 349.8 § 337.12 18. Section 333.4 is amended by revising the fourth sentence in paragraph (a) to read as follows: ■ § 333.4 form. of the Comptroller of the Currency—12 CFR part 6. 13 The regulations implementing section 38 of the Federal Deposit Insurance Act and issued by the federal banking agencies generally provide that an insured depository institution is deemed to have been notified of its capital levels and its capital category as of the most recent date: (1) A Consolidated Report of Condition and Income is required to be filed with the appropriate federal banking agency; (2) A final report of examination is delivered to the institution; or (3) Written notice is provided by the appropriate federal banking agency to the institution of its capital category for purposes of section 38 of the Federal Deposit Insurance Act and implementing regulations or that the institution’s capital category has changed. Provisions specifying the effective date of determination of capital category are generally published in the following regulations: FDIC—12 CFR 325.102 or 12 CFR 324.402, as applicable. Board of Governors of the Federal Reserve System—12 CFR 208.32. Office of the Comptroller of the Currency—12 CFR 6.3. Jkt 229001 55595 24. The authority citation for part 349 continues to read as follows: ■ Authority: 12 U.S.C.1813(q), 1818, 1819, and 3108; 7 U.S.C. 2(c)(2)(E), 27 et seq. ■ 25. Section 349.8 is revised as follows: PO 00000 Frm 00257 Fmt 4701 Sfmt 4700 Capital requirements. An FDIC-supervised insured depository institution offering or entering into retail forex transactions must be well capitalized as defined by 12 CFR part 325 or 12 CFR part 324, as applicable, unless specifically exempted by the FDIC in writing. PART 360—RESOLUTION AND RECEIVERSHIP RULES 26. The authority citation for part 360 continues to read as follows: ■ Authority: 12 U.S.C. 1817(b), 1818(a)(2), 1818(t), 1819(a) Seventh, Ninth and Tenth, 1820(b)(3), (4), 1821(d)(1), 1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub.L. 101–73, 103 Stat. 357. 27. Section 360.5 is amended to revise paragraph (b) to read as follows: ■ § 360.5 Definition of qualified financial contracts. * * * * (b) Repurchase agreements. The following agreements shall be deemed ‘‘repurchase agreements’’ under section 11(e)(8)(D)(v) of the Federal Deposit Insurance Act, as amended (12 U.S.C. 1821(e)(8)(D)(v)): A repurchase agreement on qualified foreign government securities is an agreement or combination of agreements (including master agreements) which provides for the transfer of securities that are direct obligations of, or that are fully guaranteed by, the central governments (as set forth at 12 CFR part 325, appendix A, section II.C, n. 17, as may be amended from time to time or 12 CFR 324.2 (definition of sovereign exposure), as applicable) of the OECD-based group of countries (as set forth at 12 CFR part 325, appendix A, section II.B.2., note 12 as generally discussed in 12 CFR 324.32) against the transfer of funds by the transferee of such securities with a simultaneous agreement by such transferee to transfer to the transferor thereof securities as described above, at a date certain not later than one year after such transfers or on demand, against the transfer of funds. * * * * * ■ 28. Section 360.9 is amended by revising the first sentence of paragraph (e)(6) to read as follows: § 360.9 Large-bank deposit insurance determination modernization. * * * * * (e) * * * (6) Notwithstanding the general requirements of this paragraph (e), on a case-by-case basis, the FDIC may accelerate, upon notice, the implementation timeframe of all or part E:\FR\FM\10SER2.SGM 10SER2 55596 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations of the requirements of this section for a covered institution that: Has a composite rating of 3, 4, or 5 under the Uniform Financial Institution’s Rating System, or in the case of an insured branch of a foreign bank, an equivalent rating; is undercapitalized, as defined under the prompt corrective action provisions of 12 CFR part 325 or 12 CFR part 324, as applicable; or is determined by the appropriate Federal banking agency or the FDIC in consultation with the appropriate Federal banking agency to be experiencing a significant deterioration of capital or significant funding difficulties or liquidity stress, notwithstanding the composite rating of the institution by its appropriate Federal banking agency in its most recent report of examination. * * * * * * * * PART 362—ACTIVITIES OF INSURED STATE BANKS AND INSURED SAVINGS ASSOCIATIONS 29. The authority citation for part 362 continues to read as follows: ■ Authority: 12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l). 30. Section 362.2 is amended by revising paragraphs (s) and (t) to read as follows: ■ § 362.2 Definitions. * * * * * (s) Tier one capital has the same meaning as set forth in part 324 or 325 of this chapter, as applicable, for an insured State nonmember bank. For other state-chartered depository institutions, the term ‘‘tier one capital’’ has the same meaning as set forth in the capital regulations adopted by the appropriate Federal banking agency. (t) Well-capitalized has the same meaning set forth in part 324 or 325 of this chapter, as applicable, of this chapter for an insured State nonmember bank. For other state-chartered depository institutions, the term ‘‘wellcapitalized’’ has the same meaning as set forth in the capital regulations adopted by the appropriate Federal banking agency. ■ 31. Section 362.4 is amended by revising paragraph (e)(3) to read as follows: § 362.4 banks. (d) Tangible equity and Tier 2 capital have the same meaning as set forth in part 325 of this chapter or part 324 of this chapter, as applicable. * * * * * 33. Revise § 362.18(a)(3) to read as follows: ■ § 362.18 Financial subsidiaries of insured state nonmember banks. Subsidiaries of insured State * * * * * (e) * * * (3) Use such regulatory capital amount for the purposes of the bank’s assessment risk classification under part 327 of this chapter and its categorization as a ‘‘well-capitalized’’, an ‘‘adequately capitalized’’, an ‘‘undercapitalized’’, or a ‘‘significantly undercapitalized’’ institution as defined in § 325.103(b) of this chapter or § 324.403(b) of this chapter, as applicable, provided that the capital deduction shall not be used for purposes of determining whether the bank is ‘‘critically undercapitalized’’ under part 325 of this chapter or part 324 of this chapter, as applicable. ■ 32. Section 362.17 is amended by revising paragraph (d) to read as follows: § 362.17 * * Definitions. * * (a) * * * (3) The insured state nonmember bank will deduct the aggregate amount of its outstanding equity investment, including retained earnings, in all financial subsidiaries that engage in activities as principal pursuant to section 46(a) of the Federal Deposit Act (12 U.S.C. 1831w(a)), from the bank’s total assets and tangible equity and deduct such investment from its total risk-based capital (this deduction shall be made equally from tier 1 and tier 2 capital) or from common equity tier 1 capital in accordance with 12 CFR part 324, subpart C, as applicable. * * * * * PART 363—ANNUAL INDEPENDENT AUDITS AND REPORTING REQUIREMENTS 34. The authority citation for part 363 continues to read as follows: ■ Authority: 12 U.S.C. 1831m. 35. Appendix A to part 363 is amended by revising Table 1 to Appendix A to read as follows: ■ Appendix A to Part 363—Guidelines and Interpretations * TABLE 1 TO APPENDIX A—DESIGNATED FEDERAL LAWS AND REGULATIONS APPLICABLE TO: National banks State member banks State nonmember banks Savings associations Insider Loans—Parts and/or Sections of Title 12 of the United States Code 375a .............................. 375b .............................. 1468(b) .......................... 1828(j)(2) ....................... 1828(j)(3)(B) .................. Loans to Executive Officers of Banks ................. Extensions of Credit to Executive Officers, Directors, and Principal Shareholders of Banks. Extensions of Credit to Executive Officers, Directors, and Principal Shareholders. Extensions of Credit to Officers, Directors, and Principal Shareholders. Extensions of Credit to Officers, Directors, and Principal Shareholders. √ √ √ √ (A) (A) (A) (A) ........................ ........................ ........................ √ ........................ ........................ √ ........................ (B) ........................ (C) ........................ emcdonald on DSK67QTVN1PROD with RULES2 Parts and/or Sections of Title 12 of the Code of Federal Regulations 31 .................................. 32 .................................. 215 ................................ 337.3 ............................. VerDate Mar<15>2010 Extensions of Credit to Insiders ........................... Lending Limits ...................................................... Loans to Executive Officers, Directors, and Principal Shareholders of Member Banks. Limits on Extensions of Credit to Executive Officers, Directors, and Principal Shareholders of Insured Nonmember Banks. 17:14 Sep 09, 2013 Jkt 229001 PO 00000 Frm 00258 Fmt 4701 √ √ √ ........................ ........................ √ ........................ ........................ (D) ........................ ........................ (E) ........................ ........................ √ ........................ Sfmt 4700 E:\FR\FM\10SER2.SGM 10SER2 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations 55597 TABLE 1 TO APPENDIX A—DESIGNATED FEDERAL LAWS AND REGULATIONS APPLICABLE TO:—Continued National banks 563.43 ........................... Loans by Savings Associations to Their Executive Officers, Directors, and Principal Shareholders. State member banks State nonmember banks Savings associations ........................ ........................ ........................ √ Dividend Restrictions—Parts and/or Sections of Title 12 of the United States Code 56 .................................. Prohibition on Withdrawal of Capital and Unearned Dividends. Dividends and Surplus Fund ............................... Declaration of Dividend ........................................ Prompt Corrective Action—Capital Distributions Restricted. 60 .................................. 1467a(f) ......................... 1831o(d)(1) .................... √ √ ........................ ........................ √ ........................ √ √ ........................ √ ........................ ........................ √ ........................ √ √ Parts and/or Sections of Title 12 of the Code of Federal Regulations 5 Subpart E ................... 6.6 ................................. Payment of Dividends .......................................... Prompt Corrective Action— Restrictions on Undercapitalized Institutions. Dividends and Other Distributions ....................... Prompt Corrective Action— Restrictions on Undercapitalized Institutions. Prompt Corrective Action— Restrictions on Undercapitalized Institutions. Capital Distributions ............................................. Prompt Corrective Action—Restrictions on Undercapitalized Institutions. 208.5 ............................. 208.45 ........................... 325.105 or 324.403, as applicable. 563 Subpart E ............... 565.6 ............................. √ √ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ √ √ ........................ ........................ ........................ ........................ ........................ ........................ √ ........................ ........................ ........................ ........................ ........................ ........................ ........................ √ √ A. Subsections (g) and (h) of section 22 of the Federal Reserve Act [12 U.S.C. 375a, 375b]. B. Applies only to insured Federal branches of foreign banks. C. Applies only to insured State branches of foreign banks. D. See 12 CFR 337.3. E. See 12 CFR 563.43. PART 364—STANDARDS FOR SAFETY AND SOUNDNESS Authority: 12 U.S.C. 1828(o) and 5101 et seq. 39. Appendix A to subpart A of part 365 is amended by revising footnote 2 to the ‘‘Loans in Excess of the Supervisory Loan-to-Value Limits’’ section to read as follows: ■ 36. The authority citation in part 364 continues to read as follows: ■ Authority: 12 U.S.C. 1818 and 1819 (Tenth), 1831p–1; 15 U.S.C. 1681b, 1681s, 1681w, 6801(b), 6805(b)(1). 37. Appendix A to part 364 is amended by revising the last sentence in section I.A. as follows: ■ Appendix A to Part 364—Interagency Guidelines Establishing Standards for Safety and Soundness * * * * * * * I. Introduction * * * emcdonald on DSK67QTVN1PROD with RULES2 * * * Nothing in these Guidelines limits the authority of the FDIC pursuant to section 38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and part 325 or part 324, as applicable, of Title 12 of the Code of Federal Regulations. * * * * * PART 365—REAL ESTATE LENDING STANDARDS 38. The authority citation for part 365 continues to read as follows: VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 * * * * * 2 For insured state non-member banks, ‘‘total capital’’ refers to that term described in table I of appendix A to 12 CFR part 325 or 12 CFR 324.2, as applicable. For state savings associations, the term ‘‘total capital’’ is defined at 12 CFR part 390, subpart Z or 12 CFR 324.2, as applicable. * A. Preservation of Existing Authority ■ Appendix A to Subpart A of Part 365— Interagency Guidelines for Real Estate Lending Policies * * * * PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 40. The authority citation for part 390 continues to read as follows: ■ Authority: 12 U.S.C. 1819.; Subpart A also issued under 12 U.S.C. 1820; Subpart B also issued under 12 U.S.C. 1818.; Subpart C also issued under 5 U.S.C. 504; 554–557; 12 U.S.C. 1464; 1467; 1468; 1817; 1818; 1820; 1829; 3349, 4717; 15 U.S.C. 78l; 78o–5; 78u– 2; 28 U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 4012a.; Subpart D also issued under PO 00000 Frm 00259 Fmt 4701 Sfmt 4700 12 U.S.C. 1817; 1818; 1820; 15 U.S.C. 78l; Subpart E also issued under 12 U.S.C. 1813; 1831m; 15 U.S.C. 78.; Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901 et seq.; Subpart G also issued under 12 U.S.C. 2810 et seq., 2901 et seq.; 15 U.S.C. 1691; 42 U.S.C. 1981, 1982, 3601–3619.; Subpart H also issued under 12 U.S.C. 1464; 1831y; Subpart I also issued under 12 U.S.C. 1831x; Subpart J also issued under 12 U.S.C. 1831p– 1; Subpart K also issued under 12 U.S.C. 1817; 1818; 15 U.S.C. 78c; 78l; Subpart L also issued under 12 U.S.C. 1831p–1; Subpart M also issued under 12 U.S.C. 1818; Subpart N also issued under 12 U.S.C. 1821; Subpart O also issued under 12 U.S.C. 1828; Subpart P also issued under 12 U.S.C. 1470; 1831e; 1831n; 1831p–1; 3339; Subpart Q also issued under 12 U.S.C. 1462. 41. Appendix A to § 390.265 is amended by revising footnote 4 as follows: ■ § 390.265 Real estate landing standards. * * * * * Appendix A to § 390.265—Interagency Guidelines for Real Estate Lending Policies * * * * * For the state member banks, the term ‘‘total capital’’ means ‘‘total risk-based capital’’ as defined in appendix A to 12 CFR part 208. For insured state non-member banks, ‘‘total capital’’ refers to that term described in table I of appendix A to 12 CFR 4 E:\FR\FM\10SER2.SGM 10SER2 55598 Federal Register / Vol. 78, No. 175 / Tuesday, September 10, 2013 / Rules and Regulations part 325 or 12 CFR 324.2, as applicable. For national banks, the term ‘‘total capital’’ is defined at 12 CFR 3.2(e). For savings associations, the term ‘‘total capital’’ is defined at 12 CFR 390, subpart Z or 12 CFR 324.2, as applicable. * * * * * PART 391—FORMER OFFICE OF THRIFT SUPERVISION REGULATIONS 42. The authority citation for part 391 continues to read as follows: ■ emcdonald on DSK67QTVN1PROD with RULES2 Authority: 12 U.S.C. 1819 (Tenth); Subpart A also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p–1; 1881–1884; 15 U.S.C. 1681w; 15 U.S.C. 6801; 6805; Subpart B also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p–1; 1881–1884; 15 U.S.C.1681w; VerDate Mar<15>2010 17:14 Sep 09, 2013 Jkt 229001 15 U.S.C. 6801; 6805; Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 1831p–1; and 1881–1884; 15 U.S.C. 1681m; 1681w; Subpart D also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 42 U.S.C. 4012a; 4104a; 4104b; 4106; 4128; Subpart E also issued under 12 U.S.C. 1467a; 1468; 1817; 1831i. 43. Appendix A to subpart B of part 391 is amended by revising the last sentence in section I.A. as follows: ■ Appendix A to Subpart B of Part 391— Interagency Guidelines Establishing Standards for Safety and Soundness * * * * * PO 00000 * * Frm 00260 * * * Nothing in these Guidelines limits the authority of the FDIC pursuant to section 38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and part 325 or part 324, as applicable of Title 12 of the Code of Federal Regulations. Dated at Washington, DC, this 9th day of July, 2013. By order of the Board of Directors. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. 2013–20536 Filed 9–9–13; 8:45 am] I. Introduction * A. Preservation of Existing Authority BILLING CODE 6714–01–P * Fmt 4701 * Sfmt 9990 E:\FR\FM\10SER2.SGM 10SER2

Agencies

FEDERAL DEPOSIT INSURANCE CORPORATION

[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Rules and Regulations]
[Pages 55339-55598]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20536]



[[Page 55339]]

Vol. 78

Tuesday,

No. 175

September 10, 2013

Part II





Federal Deposit Insurance Corporation





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12 CFR Parts 303, 308, 324, et al.





Regulatory Capital Rules: Regulatory Capital, Implementation of Basel 
III, Capital Adequacy, Transition Provisions, Prompt Corrective Action, 
Standardized Approach for Risk-weighted Assets, Market Discipline and 
Disclosure Requirements, Advanced Approaches Risk-Based Capital Rule, 
and Market Risk Capital Rule; Interim Final Rule

Federal Register / Vol. 78 , No. 175 / Tuesday, September 10, 2013 / 
Rules and Regulations

[[Page 55340]]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 303, 308, 324, 327, 333, 337, 347, 349, 360, 362, 363, 
364, 365, 390, and 391

RIN 3064-AD95


Regulatory Capital Rules: Regulatory Capital, Implementation of 
Basel III, Capital Adequacy, Transition Provisions, Prompt Corrective 
Action, Standardized Approach for Risk-weighted Assets, Market 
Discipline and Disclosure Requirements, Advanced Approaches Risk-Based 
Capital Rule, and Market Risk Capital Rule

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is adopting 
an interim final rule that revises its risk-based and leverage capital 
requirements for FDIC-supervised institutions. This interim final rule 
is substantially identical to a joint final rule issued by the Office 
of the Comptroller of the Currency (OCC) and the Board of Governors of 
the Federal Reserve System (Federal Reserve) (together, with the FDIC, 
the agencies). The interim final rule consolidates three separate 
notices of proposed rulemaking that the agencies jointly published in 
the Federal Register on August 30, 2012, with selected changes. The 
interim final rule implements a revised definition of regulatory 
capital, a new common equity tier 1 minimum capital requirement, a 
higher minimum tier 1 capital requirement, and, for FDIC-supervised 
institutions subject to the advanced approaches risk-based capital 
rules, a supplementary leverage ratio that incorporates a broader set 
of exposures in the denominator. The interim final rule incorporates 
these new requirements into the FDIC's prompt corrective action (PCA) 
framework. In addition, the interim final rule establishes limits on 
FDIC-supervised institutions' capital distributions and certain 
discretionary bonus payments if the FDIC-supervised institution does 
not hold a specified amount of common equity tier 1 capital in addition 
to the amount necessary to meet its minimum risk-based capital 
requirements. The interim final rule amends the methodologies for 
determining risk-weighted assets for all FDIC-supervised institutions. 
The interim final rule also adopts changes to the FDIC's regulatory 
capital requirements that meet the requirements of section 171 and 
section 939A of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.
    The interim final rule also codifies the FDIC's regulatory capital 
rules, which have previously resided in various appendices to their 
respective regulations, into a harmonized integrated regulatory 
framework. In addition, the FDIC is amending the market risk capital 
rule (market risk rule) to apply to state savings associations.
    The FDIC is issuing these revisions to its capital regulations as 
an interim final rule. The FDIC invites comments on the interaction of 
this rule with other proposed leverage ratio requirements applicable to 
large, systemically important banking organizations. This interim final 
rule otherwise contains regulatory text that is identical to the common 
rule text adopted as a final rule by the Federal Reserve and the OCC. 
This interim final rule enables the FDIC to proceed on a unified, 
expedited basis with the other federal banking agencies pending 
consideration of other issues. Specifically, the FDIC intends to 
evaluate this interim final rule in the context of the proposed well-
capitalized and buffer levels of the supplementary leverage ratio 
applicable to large, systemically important banking organizations, as 
described in a separate Notice of Proposed Rulemaking (NPR) published 
in the Federal Register August 20, 2013.
    The FDIC is seeking commenters' views on the interaction of this 
interim final rule with the proposed rule regarding the supplementary 
leverage ratio for large, systemically important banking organizations.

DATES: Effective date: January 1, 2014. Mandatory compliance date: 
January 1, 2014 for advanced approaches FDIC-supervised institutions; 
January 1, 2015 for all other FDIC-supervised institutions. Comments on 
the interim final rule must be received no later than November 12, 
2013.

ADDRESSES: You may submit comments, identified by RIN 3064-AD95, by any 
of the following methods:
     Agency Web site: https://www.fdic.gov/regulations/laws/federal/propose.html. Follow instructions for submitting comments on 
the Agency Web site.
     Email: Comments@fdic.gov. Include the RIN 3064-AD95 on the 
subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., 
Washington, DC 20429.
     Hand Delivery: Comments may be hand delivered to the guard 
station at the rear of the 550 17th Street Building (located on F 
Street) on business days between 7:00 a.m. and 5:00 p.m.
    Public Inspection: All comments received must include the agency 
name and RIN 3064-AD95 for this rulemaking. All comments received will 
be posted without change to https://www.fdic.gov/regulations/laws/federal/propose.html, including any personal information provided. 
Paper copies of public comments may be ordered from the FDIC Public 
Information Center, 3501 North Fairfax Drive, Room E-1002, Arlington, 
VA 22226 by telephone at (877) 275-3342 or (703) 562-2200.

FOR FURTHER INFORMATION CONTACT: Bobby R. Bean, Associate Director, 
bbean@fdic.gov; Ryan Billingsley, Chief, Capital Policy Section, 
rbillingsley@fdic.gov; Karl Reitz, Chief, Capital Markets Strategies 
Section, kreitz@fdic.gov; David Riley, Senior Policy Analyst, 
dariley@fdic.gov; Benedetto Bosco, Capital Markets Policy Analyst, 
bbosco@fdic.gov, regulatorycapital@fdic.gov, Capital Markets Branch, 
Division of Risk Management Supervision, (202) 898-6888; or Mark 
Handzlik, Counsel, mhandzlik@fdic.gov; Michael Phillips, Counsel, 
mphillips@fdic.gov; Greg Feder, Counsel, gfeder@fdic.gov; Ryan 
Clougherty, Senior Attorney, rclougherty@fdic.gov; or Rachel Jones, 
Attorney, racjones@fdic.gov, Supervision Branch, Legal Division, 
Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, 
DC 20429.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Summary of the Three Notices of Proposed Rulemaking
    A. The Basel III Notice of Proposed Rulemaking
    B. The Standardized Approach Notice of Proposed Rulemaking
    C. The Advanced Approaches Notice of Proposed Rulemaking
III. Summary of General Comments on the Basel III Notice of Proposed 
Rulemaking and on the Standardized Approach Notice of Proposed 
Rulemaking; Overview of the Interim Final Rule
    A. General Comments on the Basel III Notice of Proposed 
Rulemaking and on the Standardized Approach Notice of Proposed 
Rulemaking
    1. Applicability and Scope
    2. Aggregate Impact
    3. Competitive Concerns
    4. Costs
    B. Comments on Particular Aspects of the Basel III Notice of 
Proposed Rulemaking and on the Standardized Approach Notice of 
Proposed Rulemaking

[[Page 55341]]

    1. Accumulated Other Comprehensive Income
    2. Residential Mortgages
    3. Trust Preferred Securities for Smaller FDIC-Supervised 
Institutions
    C. Overview of the Interim Final Rule
    D. Timeframe for Implementation and Compliance
IV. Minimum Regulatory Capital Ratios, Additional Capital 
Requirements, and Overall Capital Adequacy
    A. Minimum Risk-Based Capital Ratios and Other Regulatory 
Capital Provisions
    B. Leverage Ratio
    C. Supplementary Leverage Ratio for Advanced Approaches FDIC-
Supervised Institutions
    D. Capital Conservation Buffer
    E. Countercyclical Capital Buffer
    F. Prompt Corrective Action Requirements
    G. Supervisory Assessment of Overall Capital Adequacy
    H. Tangible Capital Requirement for State Savings Associations
V. Definition of Capital
    A. Capital Components and Eligibility Criteria for Regulatory 
Capital Instruments
    1. Common Equity Tier 1 Capital
    2. Additional Tier 1 Capital
    3. Tier 2 Capital
    4. Capital Instruments of Mutual FDIC-Supervised Institutions
    5. Grandfathering of Certain Capital Instruments
    6. Agency Approval of Capital Elements
    7. Addressing the Point of Non-Viability Requirements Under 
Basel III
    8. Qualifying Capital Instruments Issued by Consolidated 
Subsidiaries of an FDIC-Supervised Institution
    9. Real Estate Investment Trust Preferred Capital
    B. Regulatory Adjustments and Deductions
    1. Regulatory Deductions from Common Equity Tier 1 Capital
    a. Goodwill and Other Intangibles (other than Mortgage Servicing 
Assets)
    b. Gain-on-Sale Associated with a Securitization Exposure
    c. Defined Benefit Pension Fund Net Assets
    d. Expected Credit Loss That Exceeds Eligible Credit Reserves
    e. Equity Investments in Financial Subsidiaries
    f. Deduction for Subsidiaries of Savings Associations That 
Engage in Activities That Are Not Permissible for National Banks
    g. Identified Losses for State Nonmember Banks
    2. Regulatory Adjustments to Common Equity Tier 1 Capital
    a. Accumulated Net Gains and Losses on Certain Cash-Flow Hedges
    b. Changes in an FDIC-Supervised Institution's Own Credit Risk
    c. Accumulated Other Comprehensive Income
    d. Investments in Own Regulatory Capital Instruments
    e. Definition of Financial Institution
    f. The Corresponding Deduction Approach
    g. Reciprocal Crossholdings in the Capital Instruments of 
Financial Institutions
    h. Investments in the FDIC-Supervised Institution's Own Capital 
Instruments or in the Capital of Unconsolidated Financial 
Institutions
    i. Indirect Exposure Calculations
    j. Non-Significant Investments in the Capital of Unconsolidated 
Financial Institutions
    k. Significant Investments in the Capital of Unconsolidated 
Financial Institutions That Are Not in the Form of Common Stock
    l. Items Subject to the 10 and 15 Percent Common Equity Tier 1 
Capital Threshold Deductions
    m. Netting of Deferred Tax Liabilities Against Deferred Tax 
Assets and Other Deductible Assets
    3. Investments in Hedge Funds and Private Equity Funds Pursuant 
to Section 13 of the Bank Holding Company Act
VI. Denominator Changes Related to the Regulatory Capital Changes
VII. Transition Provisions
    A. Transitions Provisions for Minimum Regulatory Capital Ratios
    B. Transition Provisions for Capital Conservation and 
Countercyclical Capital Buffers
    C. Transition Provisions for Regulatory Capital Adjustments and 
Deductions
    1. Deductions for Certain Items Under Section 22(a) of the 
Interim Final Rule
    2. Deductions for Intangibles Other Than Goodwill and Mortgage 
Servicing Assets
    3. Regulatory Adjustments Under Section 22(b)(1) of the Interim 
Final Rule
    4. Phase-Out of Current Accumulated Other Comprehensive Income 
Regulatory Capital Adjustments
    5. Phase-Out of Unrealized Gains on Available for Sale Equity 
Securities in Tier 2 Capital
    6. Phase-In of Deductions Related to Investments in Capital 
Instruments and to the Items Subject to the 10 and 15 Percent Common 
Equity Tier 1 Capital Deduction Thresholds (Sections 22(c) and 
22(d)) of the Interim Final Rule
    D. Transition Provisions for Non-Qualifying Capital Instruments
VIII. Standardized Approach for Risk-Weighted Assets
    A. Calculation of Standardized Total Risk-Weighted Assets
    B. Risk-Weighted Assets for General Credit Risk
    1. Exposures to Sovereigns
    2. Exposures to Certain Supranational Entities and Multilateral 
Development Banks
    3. Exposures to Government-Sponsored Enterprises
    4. Exposures to Depository Institutions, Foreign Banks, and 
Credit Unions
    5. Exposures to Public-Sector Entities
    6. Corporate Exposures
    7. Residential Mortgage Exposures
    8. Pre-Sold Construction Loans and Statutory Multifamily 
Mortgages
    9. High-Volatility Commercial Real Estate
    10. Past-Due Exposures
    11. Other Assets
    C. Off-Balance Sheet Items
    1. Credit Conversion Factors
    2. Credit-Enhancing Representations and Warranties
    D. Over-the-Counter Derivative Contracts
    E. Cleared Transactions
    1. Definition of Cleared Transaction
    2. Exposure Amount Scalar for Calculating for Client Exposures
    3. Risk Weighting for Cleared Transactions
    4. Default Fund Contribution Exposures
    F. Credit Risk Mitigation
    1. Guarantees and Credit Derivatives
    a. Eligibility Requirements
    b. Substitution Approach
    c. Maturity Mismatch Haircut
    d. Adjustment for Credit Derivatives Without Restructuring as a 
Credit Event
    e. Currency Mismatch Adjustment
    f. Multiple Credit Risk Mitigants
    2. Collateralized Transactions
    a. Eligible Collateral
    b. Risk-Management Guidance for Recognizing Collateral
    c. Simple Approach
    d. Collateral Haircut Approach
    e. Standard Supervisory Haircuts
    f. Own Estimates of Haircuts
    g. Simple Value-at-Risk and Internal Models Methodology
    G. Unsettled Transactions
    H. Risk-Weighted Assets for Securitization Exposures
    1. Overview of the Securitization Framework and Definitions
    2. Operational Requirements
    a. Due Diligence Requirements
    b. Operational Requirements for Traditional Securitizations
    c. Operational Requirements for Synthetic Securitizations
    d. Clean-Up Calls
    3. Risk-Weighted Asset Amounts for Securitization Exposures
    a. Exposure Amount of a Securitization Exposure
    b. Gains-on-Sale and Credit-Enhancing Interest-Only Strips
    c. Exceptions Under the Securitization Framework
    d. Overlapping Exposures
    e. Servicer Cash Advances
    f. Implicit Support
    4. Simplified Supervisory Formula Approach
    5. Gross-Up Approach
    6. Alternative Treatments for Certain Types of Securitization 
Exposures
    a. Eligible Asset-Backed Commercial Paper Liquidity Facilities
    b. A Securitization Exposure in a Second-Loss Position or Better 
to an Asset-Backed Commercial Paper Program
    7. Credit Risk Mitigation for Securitization Exposures
    8. Nth-to-Default Credit Derivatives
IX. Equity Exposures
    A. Definition of Equity Exposure and Exposure Measurement
    B. Equity Exposure Risk Weights
    C. Non-Significant Equity Exposures
    D. Hedged Transactions
    E. Measures of Hedge Effectiveness
    F. Equity Exposures to Investment Funds
    1. Full Look-through Approach
    2. Simple Modified Look-through Approach
    3. Alternative Modified Look-Through Approach
X. Market Discipline and Disclosure Requirements

[[Page 55342]]

    A. Proposed Disclosure Requirements
    B. Frequency of Disclosures
    C. Location of Disclosures and Audit Requirements
    D. Proprietary and Confidential Information
    E. Specific Public Disclosure Requirements
XI. Risk-Weighted Assets--Modifications to the Advanced Approaches
    A. Counterparty Credit Risk
    1. Recognition of Financial Collateral
    a. Financial Collateral
    b. Revised Supervisory Haircuts
    2. Holding Periods and the Margin Period of Risk
    3. Internal Models Methodology
    a. Recognition of Wrong-Way Risk
    b. Increased Asset Value Correlation Factor
    4. Credit Valuation Adjustments
    a. Simple Credit Valuation Adjustment Approach
    b. Advanced Credit Valuation Adjustment Approach
    5. Cleared Transactions (Central Counterparties)
    6. Stress Period for Own Estimates
    B. Removal of Credit Ratings
    1. Eligible Guarantor
    2. Money Market Fund Approach
    3. Modified Look-Through Approaches for Equity Exposures to 
Investment F
    C. Revisions to the Treatment of Securitization Exposures
    1. Definitions
    2. Operational Criteria for Recognizing Risk Transference in 
Traditional Securitizations
    3. The Hierarchy of Approaches
    4. Guarantees and Credit Derivatives Referencing a 
Securitization Expo
    5. Due Diligence Requirements for Securitization Exposures
    6. Nth-to-Default Credit Derivatives
    D. Treatment of Exposures Subject to Deduction
    E. Technical Amendments to the Advanced Approaches Rule
    1. Eligible Guarantees and Contingent U.S. Government Guarantees
    2. Calculation of Foreign Exposures for Applicability of the 
Advanced Approaches--Changes to Federal Financial Institutions 
Examination Council 009
    3. Applicability of the Interim Final Rule
    4. Change to the Definition of Probability of Default Related to 
Seasoning
    5. Cash Items in Process of Collection
    6. Change to the Definition of Qualifying Revolving Exposure
    7. Trade-Related Letters of Credit
    8. Defaulted Exposures That Are Guaranteed by the U.S. 
Government
    9. Stable Value Wraps
    10. Treatment of Pre-Sold Construction Loans and Multi-Family 
Residential Loans
    F. Pillar 3 Disclosures
    1. Frequency and Timeliness of Disclosures
    2. Enhanced Securitization Disclosure Requirements
    3. Equity Holdings That Are Not Covered Positions
XII. Market Risk Rule
XIII. Abbreviations
XIV. Regulatory Flexibility Act
XV. Paperwork Reduction Act
XVI. Plain Language
XVII. Small Business Regulatory Enforcement Fairness Act of 1996

I. Introduction

    On August 30, 2012, the agencies published in the Federal Register 
three joint notices of proposed rulemaking seeking public comment on 
revisions to their risk-based and leverage capital requirements and on 
methodologies for calculating risk-weighted assets under the 
standardized and advanced approaches (each, a proposal, and together, 
the NPRs, the proposed rules, or the proposals).\1\ The proposed rules, 
in part, reflected agreements reached by the Basel Committee on Banking 
Supervision (BCBS) in ``Basel III: A Global Regulatory Framework for 
More Resilient Banks and Banking Systems'' (Basel III), including 
subsequent changes to the BCBS's capital standards and recent BCBS 
consultative papers.\2\ Basel III is intended to improve both the 
quality and quantity of banking organizations' capital, as well as to 
strengthen various aspects of the international capital standards for 
calculating regulatory capital. The proposed rules also reflect aspects 
of the Basel II Standardized Approach and other Basel Committee 
standards.
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    \1\ 77 FR 52792 (August 30, 2012); 77 FR 52888 (August 30, 
2012); 77 FR 52978 (August 30, 2012).
    \2\ Basel III was published in December 2010 and revised in June 
2011. The text is available at https://www.bis.org/publ/bcbs189.htm. 
The BCBS is a committee of banking supervisory authorities, which 
was established by the central bank governors of the G-10 countries 
in 1975. More information regarding the BCBS and its membership is 
available at https://www.bis.org/bcbs/about.htm. Documents issued by 
the BCBS are available through the Bank for International 
Settlements Web site at https://www.bis.org.
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    The proposals also included changes consistent with the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act); 
\3\ would apply the risk-based and leverage capital rules to top-tier 
savings and loan holding companies (SLHCs) domiciled in the United 
States; and would apply the market risk capital rule (the market risk 
rule) \4\ to Federal and state savings associations (as appropriate 
based on trading activity).
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    \3\ Public Law 111-203, 124 Stat. 1376, 1435-38 (2010).
    \4\ The FDIC's market risk rule is at 12 CFR part 325, appendix 
C.
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    The NPR titled ``Regulatory Capital Rules: Regulatory Capital, 
Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital 
Adequacy, Transition Provisions, and Prompt Corrective Action'' \5\ 
(the Basel III NPR), provided for the implementation of the Basel III 
revisions to international capital standards related to minimum capital 
requirements, regulatory capital, and additional capital ``buffer'' 
standards to enhance the resilience of FDIC-supervised institutions to 
withstand periods of financial stress. FDIC-supervised institutions 
include state nonmember banks and state savings associations. The term 
banking organizations includes national banks, state member banks, 
state nonmember banks, state and Federal savings associations, and top-
tier bank holding companies domiciled in the United States not subject 
to the Federal Reserve's Small Bank Holding Company Policy Statement 
(12 CFR part 225, appendix C), as well as top-tier savings and loan 
holding companies domiciled in the United States, except certain 
savings and loan holding companies that are substantially engaged in 
insurance underwriting or commercial activities. The proposal included 
transition periods for many of the requirements, consistent with Basel 
III and the Dodd-Frank Act. The NPR titled ``Regulatory Capital Rules: 
Standardized Approach for Risk-weighted Assets; Market Discipline and 
Disclosure Requirements'' \6\ (the Standardized Approach NPR), would 
revise the methodologies for calculating risk-weighted assets in the 
agencies' general risk-based capital rules \7\ (the general risk-based 
capital rules), incorporating aspects of the Basel II standardized 
approach,\8\ and establish alternative standards of creditworthiness in 
place of credit ratings, consistent with section 939A of the Dodd-Frank 
Act.\9\ The proposed minimum capital requirements in section 10(a) of 
the Basel III NPR, as determined using the standardized capital ratio 
calculations in section 10(b), would establish minimum capital 
requirements that would be the ``generally applicable'' capital 
requirements for purpose of section 171 of the Dodd-Frank Act (Pub. L. 
111-203, 124 Stat. 1376, 1435-38 (2010).\10\
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    \5\ 77 FR 52792 (August 30, 2012).
    \6\ 77 FR 52888 (August 30, 2012).
    \7\ The FDIC's general risk-based capital rules is at 12 CFR 
part 325, appendix A, and 12 CFR part 390, subpart Z . The general 
risk-based capital rule is supplemented by the FDIC's market risk 
rule in 12 CFR part 325, appendix C.
    \8\ See BCBS, ``International Convergence of Capital Measurement 
and Capital Standards: A Revised Framework,'' (June 2006), available 
at https://www.bis.org/publ/bcbs128.htm (Basel II).
    \9\ See section 939A of the Dodd-Frank Act (15 U.S.C. 78o-7 
note).
    \10\ See 77 FR 52856 (August 30, 2012).
---------------------------------------------------------------------------

    The NPR titled ``Regulatory Capital Rules: Advanced Approaches 
Risk-Based Capital Rule; Market Risk Capital

[[Page 55343]]

Rule'' \11\ (the Advanced Approaches NPR) included proposed changes to 
the agencies' current advanced approaches risk-based capital rules (the 
advanced approaches rule) \12\ to incorporate applicable provisions of 
Basel III and the ``Enhancements to the Basel II framework'' (2009 
Enhancements) published in July 2009 \13\ and subsequent consultative 
papers, to remove references to credit ratings, to apply the market 
risk rule to savings associations and SLHCs, and to apply the advanced 
approaches rule to SLHCs meeting the scope of application of those 
rules. Taken together, the three proposals also would have restructured 
the agencies' regulatory capital rules (the general risk-based capital 
rules, leverage rules,\14\ market risk rule, and advanced approaches 
rule) into a harmonized, codified regulatory capital framework.
---------------------------------------------------------------------------

    \11\ 77 FR 52978 (August 30, 2012).
    \12\ The FDIC's advanced approaches rules is at 12 CFR part 325, 
appendix D, and 12 CFR part 390, subpart Z, appendix A. The advanced 
approaches rule is supplemented by the market risk rule.
    \13\ See ``Enhancements to the Basel II framework'' (July 2009), 
available at https://www.bis.org/publ/bcbs157.htm.
    \14\ The FDIC's tier 1 leverage rules are at 12 CFR 325.3 (state 
nonmember banks) and 390.467 (state savings associations).
---------------------------------------------------------------------------

    The FDIC is finalizing the Basel III NPR, Standardized Approach 
NPR, and Advanced Approaches NPR in this interim final rule, with 
certain changes to the proposals, as described further below. The OCC 
and Federal Reserve are jointly finalizing the Basel III NPR, 
Standardized Approach NPR, and Advanced Approaches NPR as a final rule, 
with identical changes to the proposals as the FDIC. This interim final 
rule applies to FDIC-supervised institutions.
    Certain aspects of this interim final rule apply only to FDIC-
supervised institutions subject to the advanced approaches rule 
(advanced approaches FDIC-supervised institutions) or to FDIC-
supervised institutions with significant trading activities, as further 
described below.
    Likewise, the enhanced disclosure requirements in the interim final 
rule apply only to FDIC-supervised institutions with $50 billion or 
more in total consolidated assets.
    As under the proposal, the minimum capital requirements in section 
10(a) of the interim final rule, as determined using the standardized 
capital ratio calculations in section 10(b), which apply to all FDIC-
supervised institutions, establish the ``generally applicable'' capital 
requirements under section 171 of the Dodd-Frank Act.\15\
---------------------------------------------------------------------------

    \15\ See note 14, supra. Risk-weighted assets calculated under 
the market risk framework in subpart F of the interim final rule are 
included in calculations of risk-weighted assets both under the 
standardized approach and the advanced approaches.
---------------------------------------------------------------------------

    Under the interim final rule, as under the proposal, in order to 
determine its minimum risk-based capital requirements, an advanced 
approaches FDIC-supervised institution that has completed the parallel 
run process and that has received notification from its primary Federal 
supervisor pursuant to section 324.121(d) of subpart E must determine 
its minimum risk-based capital requirements by calculating the three 
risk-based capital ratios using total risk-weighted assets under the 
standardized approach and, separately, total risk-weighted assets under 
the advanced approaches.\16\ The lower ratio for each risk-based 
capital requirement is the ratio the FDIC-supervised institution must 
use to determine its compliance with the minimum capital 
requirement.\17\ These enhanced prudential standards help ensure that 
advanced approaches FDIC-supervised institutions, which are among the 
largest and most complex FDIC-supervised institutions, have capital 
adequate to address their more complex operations and risks.
---------------------------------------------------------------------------

    \16\ An advanced approaches FDIC-supervised institution must 
also use its advanced-approaches-adjusted total to determine its 
total risk-based capital ratio.
    \17\ See section 10(c) of the interim final rule.
---------------------------------------------------------------------------

II. Summary of the Three Notices of Proposed Rulemaking

A. The Basel III Notice of Proposed Rulemaking

    As discussed in the proposals, the recent financial crisis 
demonstrated that the amount of high-quality capital held by banking 
organizations was insufficient to absorb the losses generated over that 
period. In addition, some non-common stock capital instruments included 
in tier 1 capital did not absorb losses to the extent previously 
expected. A lack of clear and easily understood disclosures regarding 
the characteristics of regulatory capital instruments, as well as 
inconsistencies in the definition of capital across jurisdictions, 
contributed to difficulties in evaluating a banking organization's 
capital strength. Accordingly, the BCBS assessed the international 
capital framework and, in 2010, published Basel III, a comprehensive 
reform package designed to improve the quality and quantity of 
regulatory capital and build additional capacity into the banking 
system to absorb losses in times of market and economic stress. On 
August 30, 2012, the agencies published the NPRs in the Federal 
Register to revise regulatory capital requirements, as discussed above. 
As proposed, the Basel III NPR generally would have applied to all U.S. 
banking organizations.
    Consistent with Basel III, the Basel III NPR would have required 
banking organizations to comply with the following minimum capital 
ratios: (i) A new requirement for a ratio of common equity tier 1 
capital to risk-weighted assets (common equity tier 1 capital ratio) of 
4.5 percent; (ii) a ratio of tier 1 capital to risk-weighted assets 
(tier 1 capital ratio) of 6 percent, increased from 4 percent; (iii) a 
ratio of total capital to risk-weighted assets (total capital ratio) of 
8 percent; (iv) a ratio of tier 1 capital to average total consolidated 
assets (leverage ratio) of 4 percent; and (v) for advanced approaches 
banking organizations only, an additional requirement that the ratio of 
tier 1 capital to total leverage exposure (supplementary leverage 
ratio) be at least 3 percent.
    The Basel III NPR also proposed implementation of a capital 
conservation buffer equal to 2.5 percent of risk-weighted assets above 
the minimum risk-based capital ratio requirements, which could be 
expanded by a countercyclical capital buffer for advanced approaches 
banking organizations under certain circumstances. If a banking 
organization failed to hold capital above the minimum capital ratios 
and proposed capital conservation buffer (as potentially expanded by 
the countercyclical capital buffer), it would be subject to certain 
restrictions on capital distributions and discretionary bonus payments. 
The proposed countercyclical capital buffer was designed to take into 
account the macro-financial environment in which large, internationally 
active banking organizations function. The countercyclical capital 
buffer could be implemented if the agencies determined that credit 
growth in the economy became excessive. As proposed, the 
countercyclical capital buffer would initially be set at zero, and 
could expand to as much as 2.5 percent of risk-weighted assets.
    The Basel III NPR proposed to apply a 4 percent minimum leverage 
ratio requirement to all banking organizations (computed using the new 
definition of capital), and to eliminate the exceptions for banking 
organizations with strong supervisory ratings or subject to the market 
risk rule. The Basel III NPR also

[[Page 55344]]

proposed to require advanced approaches banking organizations to 
satisfy a minimum supplementary leverage ratio requirement of 3 
percent, measured in a manner consistent with the international 
leverage ratio set forth in Basel III. Unlike the FDIC's current 
leverage ratio requirement, the proposed supplementary leverage ratio 
incorporates certain off-balance sheet exposures in the denominator.
    To strengthen the quality of capital, the Basel III NPR proposed 
more conservative eligibility criteria for regulatory capital 
instruments. For example, the Basel III NPR proposed that trust 
preferred securities (TruPS) and cumulative perpetual preferred 
securities, which were tier-1-eligible instruments (subject to limits) 
at the BHC level, would no longer be includable in tier 1 capital under 
the proposal and would be gradually phased out from tier 1 capital. The 
proposal also eliminated the existing limitations on the amount of tier 
2 capital that could be recognized in total capital, as well as the 
limitations on the amount of certain capital instruments (for example, 
term subordinated debt) that could be included in tier 2 capital.
    In addition, the proposal would have required banking organizations 
to include in common equity tier 1 capital accumulated other 
comprehensive income (AOCI) (with the exception of gains and losses on 
cash-flow hedges related to items that are not fair-valued on the 
balance sheet), and also would have established new limits on the 
amount of minority interest a banking organization could include in 
regulatory capital. The proposal also would have established more 
stringent requirements for several deductions from and adjustments to 
regulatory capital, including with respect to deferred tax assets 
(DTAs), investments in a banking organization's own capital instruments 
and the capital instruments of other financial institutions, and 
mortgage servicing assets (MSAs). The proposed revisions would have 
been incorporated into the regulatory capital ratios in the prompt 
corrective action (PCA) framework for depository institutions.

B. The Standardized Approach Notice of Proposed Rulemaking

    The Standardized Approach NPR proposed changes to the agencies' 
general risk-based capital rules for determining risk-weighted assets 
(that is, the calculation of the denominator of a banking 
organization's risk-based capital ratios). The proposed changes were 
intended to revise and harmonize the agencies' rules for calculating 
risk-weighted assets, enhance risk sensitivity, and address weaknesses 
in the regulatory capital framework identified over recent years, 
including by strengthening the risk sensitivity of the regulatory 
capital treatment for, among other items, credit derivatives, central 
counterparties (CCPs), high-volatility commercial real estate, and 
collateral and guarantees.
    In the Standardized Approach NPR, the agencies also proposed 
alternatives to credit ratings for calculating risk-weighted assets for 
certain assets, consistent with section 939A of the Dodd-Frank Act. 
These alternatives included methodologies for determining risk-weighted 
assets for exposures to sovereigns, foreign banks, and public sector 
entities, securitization exposures, and counterparty credit risk. The 
Standardized Approach NPR also proposed to include a framework for risk 
weighting residential mortgages based on underwriting and product 
features, as well as loan-to-value (LTV) ratios, and disclosure 
requirements for top-tier banking organizations domiciled in the United 
States with $50 billion or more in total assets, including disclosures 
related to regulatory capital instruments.

C. The Advanced Approaches Notice of Proposed Rulemaking

    The Advanced Approaches NPR proposed revisions to the advanced 
approaches rule to incorporate certain aspects of Basel III, the 2009 
Enhancements, and subsequent consultative papers. The proposal also 
would have implemented relevant provisions of the Dodd-Frank Act, 
including section 939A (regarding the use of credit ratings in agency 
regulations),\18\ and incorporated certain technical amendments to the 
existing requirements. In addition, the Advanced Approaches NPR 
proposed to codify the market risk rule in a manner similar to the 
codification of the other regulatory capital rules under the proposals.
---------------------------------------------------------------------------

    \18\ See section 939A of Dodd-Frank Act (15 U.S.C. 78o-7 note).
---------------------------------------------------------------------------

    Consistent with Basel III and the 2009 Enhancements, under the 
Advanced Approaches NPR, the agencies proposed further steps to 
strengthen capital requirements for internationally active banking 
organizations. This NPR would have required advanced approaches banking 
organizations to hold more appropriate levels of capital for 
counterparty credit risk, credit valuation adjustments (CVA), and 
wrong-way risk; would have strengthened the risk-based capital 
requirements for certain securitization exposures by requiring advanced 
approaches banking organizations to conduct more rigorous credit 
analysis of securitization exposures; and would have enhanced the 
disclosure requirements related to those exposures.
    The agencies proposed to apply the market risk rule to SLHCs and to 
state and Federal savings associations.

III. Summary of General Comments on the Basel III Notice of Proposed 
Rulemaking and on the Standardized Approach Notice of Proposed 
Rulemaking; Overview of the Interim Final Rule

A. General Comments on the Basel III Notice of Proposed Rulemaking and 
on the Standardized Approach Notice of Proposed Rulemaking

    Each agency received over 2,500 public comments on the proposals 
from banking organizations, trade associations, supervisory 
authorities, consumer advocacy groups, public officials (including 
members of the U.S. Congress), private individuals, and other 
interested parties. Overall, while most commenters supported more 
robust capital standards and the agencies' efforts to improve the 
resilience of the banking system, many commenters expressed concerns 
about the potential costs and burdens of various aspects of the 
proposals, particularly for smaller banking organizations. A 
substantial number of commenters also requested withdrawal of, or 
significant revisions to, the proposals. A few commenters argued that 
new capital rules were not necessary at this time. Some commenters 
requested that the agencies perform additional studies of the economic 
impact of part or all of the proposed rules. Many commenters asked for 
additional time to transition to the new requirements. A more detailed 
discussion of the comments provided on particular aspects of the 
proposals is provided in the remainder of this preamble.
1. Applicability and Scope
    The agencies received a significant number of comments regarding 
the proposed scope and applicability of the Basel III NPR and the 
Standardized Approach NPR. The majority of comments submitted by or on 
behalf of community banking organizations requested an exemption from 
the proposals. These commenters suggested basing such an exemption on a 
banking organization's asset size--for example, total assets of less 
than $500 million, $1 billion, $10 billion, $15 billion, or $50 
billion--or on its risk profile or business model. Under the latter 
approach, the

[[Page 55345]]

commenters suggested providing an exemption for banking organizations 
with balance sheets that rely less on leverage, short-term funding, or 
complex derivative transactions.
    In support of an exemption from the proposed rule for community 
banking organizations, a number of commenters argued that the proposed 
revisions to the definition of capital would be overly conservative and 
would prohibit some of the instruments relied on by community banking 
organizations from satisfying regulatory capital requirements. Many of 
these commenters stated that, in general, community banking 
organizations have less access to the capital markets relative to 
larger banking organizations and could increase capital only by 
accumulating retained earnings. Owing to slow economic growth and 
relatively low earnings among community banking organizations, the 
commenters asserted that implementation of the proposal would be 
detrimental to their ability to serve local communities while providing 
reasonable returns to shareholders. Other commenters requested 
exemptions from particular sections of the proposed rules, such as 
maintaining capital against transactions with particular 
counterparties, or based on transaction types that they considered 
lower-risk, such as derivative transactions hedging interest rate risk.
    The commenters also argued that application of the Basel III NPR 
and Standardized Approach NPR to community banking organizations would 
be unnecessary and inappropriate for the business model and risk 
profile of such organizations. These commenters asserted that Basel III 
was designed for large, internationally-active banking organizations in 
response to a financial crisis attributable primarily to those 
institutions. Accordingly, the commenters were of the view that 
community banking organizations require a different capital framework 
with less stringent capital requirements, or should be allowed to 
continue to use the general risk-based capital rules. In addition, many 
commenters, in particular minority depository institutions (MDIs), 
mutual banking organizations, and community development financial 
institutions (CDFIs), expressed concern regarding their ability to 
raise capital to meet the increased minimum requirements in the current 
environment and upon implementation of the proposed definition of 
capital. One commenter asked for an exemption from all or part of the 
proposed rules for CDFIs, indicating that the proposal would 
significantly reduce the availability of capital for low- and moderate-
income communities. Another commenter stated that the U.S. Congress has 
a policy of encouraging the creation of MDIs and expressed concern that 
the proposed rules contradicted this purpose.
    In contrast, however, a few commenters supported the proposed 
application of the Basel III NPR to all banking organizations. For 
example, one commenter stated that increasing the quality and quantity 
of capital at all banking organizations would create a more resilient 
financial system and discourage inappropriate risk-taking by forcing 
banking organizations to put more of their own ``skin in the game.'' 
This commenter also asserted that the proposed scope of the Basel III 
NPR would reduce the probability and impact of future financial crises 
and support the objectives of sustained growth and high employment. 
Another commenter favored application of the Basel III NPR to all 
banking organizations to ensure a level playing field among banking 
organizations within the same competitive market.
2. Aggregate Impact
    A majority of the commenters expressed concern regarding the 
potential aggregate impact of the proposals, together with other 
provisions of the Dodd-Frank Act. Some of these commenters urged the 
agencies to withdraw the proposals and to conduct a quantitative impact 
study (QIS) to assess the potential aggregate impact of the proposals 
on banking organizations and the overall U.S. economy. Many commenters 
argued that the proposals would have significant negative consequences 
for the financial services industry. According to the commenters, by 
requiring banking organizations to hold more capital and increase risk 
weighting on some of their assets, as well as to meet higher risk-based 
and leverage capital measures for certain PCA categories, the proposals 
would negatively affect the banking sector. Commenters cited, among 
other potential consequences of the proposals: restricted job growth; 
reduced lending or higher-cost lending, including to small businesses 
and low-income or minority communities; limited availability of certain 
types of financial products; reduced investor demand for banking 
organizations' equity; higher compliance costs; increased mergers and 
consolidation activity, specifically in rural markets, because banking 
organizations would need to spread compliance costs among a larger 
customer base; and diminished access to the capital markets resulting 
from reduced profit and from dividend restrictions associated with the 
capital buffers. The commenters also asserted that the recovery of the 
U.S. economy would be impaired by the proposals as a result of reduced 
lending by banking organizations that the commenters believed would be 
attributable to the higher costs of regulatory compliance. In 
particular, the commenters expressed concern that a contraction in 
small-business lending would adversely affect job growth and 
employment.
3. Competitive Concerns
    Many commenters raised concerns that implementation of the 
proposals would create an unlevel playing field between banking 
organizations and other financial services providers. For example, a 
number of commenters expressed concern that credit unions would be able 
to gain market share from banking organizations by offering similar 
products at substantially lower costs because of differences in 
taxation combined with potential costs from the proposals. The 
commenters also argued that other financial service providers, such as 
foreign banks with significant U.S. operations, members of the Federal 
Farm Credit System, and entities in the shadow banking industry, would 
not be subject to the proposed rule and, therefore, would have a 
competitive advantage over banking organizations. These commenters also 
asserted that the proposals could cause more consumers to choose lower-
cost financial products from the unregulated, nonbank financial sector.
4. Costs
    Commenters representing all types of banking organizations 
expressed concern that the complexity and implementation cost of the 
proposals would exceed their expected benefits. According to these 
commenters, implementation of the proposals would require software 
upgrades for new internal reporting systems, increased employee 
training, and the hiring of additional employees for compliance 
purposes. Some commenters urged the agencies to recognize that 
compliance costs have increased significantly over recent years due to 
other regulatory changes and to take these costs into consideration. As 
an alternative, some commenters encouraged the agencies to consider a 
simple increase in the minimum regulatory capital requirements, 
suggesting that such an approach would provide increased protection to 
the Deposit Insurance Fund and increase safety and soundness

[[Page 55346]]

without adding complexity to the regulatory capital framework.

B. Comments on Particular Aspects of the Basel III Notice of Proposed 
Rulemaking and on the Standardized Approach Notice of Proposed 
Rulemaking

    In addition to the general comments described above, the agencies 
received a significant number of comments on four particular elements 
of the proposals: the requirement to include most elements of AOCI in 
regulatory capital; the new framework for risk weighting residential 
mortgages; and the requirement to phase out TruPS from tier 1 capital 
for all banking organizations.
1. Accumulated Other Comprehensive Income
    AOCI generally includes accumulated unrealized gains and losses on 
certain assets and liabilities that have not been included in net 
income, yet are included in equity under U.S. generally accepted 
accounting principles (GAAP) (for example, unrealized gains and losses 
on securities designated as available-for-sale (AFS)). Under the 
agencies' general risk-based capital rules, most components of AOCI are 
not reflected in a banking organization's regulatory capital. In the 
proposed rule, consistent with Basel III, the agencies proposed to 
require banking organizations to include the majority of AOCI 
components in common equity tier 1 capital.
    The agencies received a significant number of comments on the 
proposal to require banking organizations to recognize AOCI in common 
equity tier 1 capital. Generally, the commenters asserted that the 
proposal would introduce significant volatility in banking 
organizations' capital ratios due in large part to fluctuations in 
benchmark interest rates, and would result in many banking 
organizations moving AFS securities into a held-to-maturity (HTM) 
portfolio or holding additional regulatory capital solely to mitigate 
the volatility resulting from temporary unrealized gains and losses in 
the AFS securities portfolio. The commenters also asserted that the 
proposed rules would likely impair lending and negatively affect 
banking organizations' ability to manage liquidity and interest rate 
risk and to maintain compliance with legal lending limits. Commenters 
representing community banking organizations in particular asserted 
that they lack the sophistication of larger banking organizations to 
use certain risk-management techniques for hedging interest rate risk, 
such as the use of derivative instruments.
2. Residential Mortgages
    The Standardized Approach NPR would have required banking 
organizations to place residential mortgage exposures into one of two 
categories to determine the applicable risk weight. Category 1 
residential mortgage exposures were defined to include mortgage 
products with underwriting and product features that have demonstrated 
a lower risk of default, such as consideration and documentation of a 
borrower's ability to repay, and generally excluded mortgage products 
that included terms or other characteristics that the agencies have 
found to be indicative of higher credit risk, such as deferral of 
repayment of principal. Residential mortgage exposures with higher risk 
characteristics were defined as category 2 residential mortgage 
exposures. The agencies proposed to apply relatively lower risk weights 
to category 1 residential mortgage exposures, and higher risk weights 
to category 2 residential mortgage exposures. The proposal provided 
that the risk weight assigned to a residential mortgage exposure also 
depended on its LTV ratio.
    The agencies received a significant number of comments objecting to 
the proposed treatment for one-to-four family residential mortgages and 
requesting retention of the mortgage treatment in the agencies' general 
risk-based capital rules. Commenters generally expressed concern that 
the proposed treatment would inhibit lending to creditworthy borrowers 
and could jeopardize the recovery of a still-fragile housing market. 
Commenters also criticized the distinction between category 1 and 
category 2 mortgages, asserting that the characteristics proposed for 
each category did not appropriately distinguish between lower- and 
higher-risk products and would adversely impact certain loan products 
that performed relatively well even during the recent crisis. 
Commenters also highlighted concerns regarding regulatory burden and 
the uncertainty of other regulatory initiatives involving residential 
mortgages. In particular, these commenters expressed considerable 
concern regarding the potential cumulative impact of the proposed new 
mortgage requirements combined with the Dodd-Frank Act's requirements 
relating to the definitions of qualified mortgage and qualified 
residential mortgage \19\ and asserted that when considered together 
with the proposed mortgage treatment, the combined effect could have an 
adverse impact on the mortgage industry.
---------------------------------------------------------------------------

    \19\ See, e.g., the definition of ``qualified mortgage'' in 
section 1412 of the Dodd-Frank Act (15 U.S.C. 129C) and ``qualified 
residential mortgage'' in section 941(e)(4) of the Dodd-Frank Act 
(15 U.S.C. 78o-11(e)(4)).
---------------------------------------------------------------------------

3. Trust Preferred Securities for Smaller FDIC-Supervised Institutions
    The proposed rules would have required all banking organizations to 
phase-out TruPS from tier 1 capital under either a 3- or 10-year 
transition period based on the organization's total consolidated 
assets. The proposal would have required banking organizations with 
more than $15 billion in total consolidated assets (as of December 31, 
2009) to phase-out of tier 1 capital any non-qualifying capital 
instruments (such as TruPS and cumulative preferred shares) issued 
before May 19, 2010. The exclusion of non-qualifying capital 
instruments would have taken place incrementally over a three-year 
period beginning on January 1, 2013. Section 171 provides an exception 
that permits banking organizations with total consolidated assets of 
less than $15 billion as of December 31, 2009, and banking 
organizations that were mutual holding companies as of May 19, 2010 
(2010 MHCs), to include in tier 1 capital all TruPS (and other 
instruments that could no longer be included in tier 1 capital pursuant 
to the requirements of section 171) that were issued prior to May 19, 
2010.\20\ However, consistent with Basel III and the general policy 
purpose of the proposed revisions to regulatory capital, the agencies 
proposed to require banking organizations with total consolidated 
assets less than $15 billion as of December 31, 2009 and 2010 MHCs to 
phase out their non-qualifying capital instruments from regulatory 
capital over ten years.\21\
---------------------------------------------------------------------------

    \20\ Specifically, section 171 provides that deductions of 
instruments ``that would be required'' under the section are not 
required for depository institution holding companies with total 
consolidated assets of less than $15 billion as of December 31, 2009 
and 2010 MHCs. See 12 U.S.C. 5371(b)(4)(C).
    \21\ See 12 U.S.C. 5371(b)(5)(A). While section 171 of the Dodd-
Frank Act requires the agencies to establish minimum risk-based and 
leverage capital requirements subject to certain limitations, the 
agencies retain their general authority to establish capital 
requirements under other laws and regulations, including under the 
National Bank Act, 12 U.S.C. 1, et seq., Federal Reserve Act, 
Federal Deposit Insurance Act, Bank Holding Company Act, 
International Lending Supervision Act, 12 U.S.C. 3901, et seq., and 
Home Owners Loan Act, 12 U.S.C. 1461, et seq.

---------------------------------------------------------------------------

[[Page 55347]]

    Many commenters representing community banking organizations 
criticized the proposal's phase-out schedule for TruPS and encouraged 
the agencies to grandfather TruPS in tier 1 capital to the extent 
permitted by section 171 of the Dodd-Frank Act. Commenters asserted 
that this was the intent of the U.S. Congress, including this provision 
in the statute. These commenters also asserted that this aspect of the 
proposal would unduly burden community banking organizations that have 
limited ability to raise capital, potentially impairing the lending 
capacity of these banking organizations.

C. Overview of the Interim Final Rule

    The interim final rule will replace the FDIC's general risk-based 
capital rules, advanced approaches rule, market risk rule, and leverage 
rules in accordance with the transition provisions described below. 
After considering the comments received, the FDIC has made substantial 
modifications in the interim final rule to address specific concerns 
raised by commenters regarding the cost, complexity, and burden of the 
proposals.
    During the recent financial crisis, lack of confidence in the 
banking sector increased banking organizations' cost of funding, 
impaired banking organizations' access to short-term funding, depressed 
values of banking organizations' equities, and required many banking 
organizations to seek government assistance. Concerns about banking 
organizations arose not only because market participants expected steep 
losses on banking organizations' assets, but also because of 
substantial uncertainty surrounding estimated loss rates, and thus 
future earnings. Further, heightened systemic risks, falling asset 
values, and reduced credit availability had an adverse impact on 
business and consumer confidence, significantly affecting the overall 
economy. The interim final rule addresses these weaknesses by helping 
to ensure a banking and financial system that will be better able to 
absorb losses and continue to lend in future periods of economic 
stress. This important benefit in the form of a safer, more resilient, 
and more stable banking system is expected to substantially outweigh 
any short-term costs that might result from the interim final rule.
    In this context, the FDIC is adopting most aspects of the 
proposals, including the minimum risk-based capital requirements, the 
capital conservation and countercyclical capital buffers, and many of 
the proposed risk weights. The FDIC has also decided to apply most 
aspects of the Basel III NPR and Standardized Approach NPR to all 
banking organizations, with some significant changes. Implementing the 
interim final rule in a consistent fashion across the banking system 
will improve the quality and increase the level of regulatory capital, 
leading to a more stable and resilient system for banking organizations 
of all sizes and risk profiles. The improved resilience will enhance 
their ability to continue functioning as financial intermediaries, 
including during periods of financial stress and reduce risk to the 
deposit insurance fund and to the financial system. The FDIC believes 
that, together, the revisions to the proposals meaningfully address the 
commenters' concerns regarding the potential implementation burden of 
the proposals.
    The FDIC has considered the concerns raised by commenters and 
believe that it is important to take into account and address 
regulatory costs (and their potential effect on FDIC-supervised 
institutions' role as financial intermediaries in the economy) when the 
FDIC establishes or revises regulatory requirements. In developing 
regulatory capital requirements, these concerns are considered in the 
context of the FDIC's broad goals--to enhance the safety and soundness 
of FDIC-supervised institutions and promote financial stability through 
robust capital standards for the entire banking system.
    The agencies participated in the development of a number of studies 
to assess the potential impact of the revised capital requirements, 
including participating in the BCBS's Macroeconomic Assessment Group as 
well as its QIS, the results of which were made publicly available by 
the BCBS upon their completion.\22\ The BCBS analysis suggested that 
stronger capital requirements help reduce the likelihood of banking 
crises while yielding positive net economic benefits.\23\ To evaluate 
the potential reduction in economic output resulting from the new 
framework, the analysis assumed that banking organizations replaced 
debt with higher-cost equity to the extent needed to comply with the 
new requirements, that there was no reduction in the cost of equity 
despite the reduction in the riskiness of banking organizations' 
funding mix, and that the increase in funding cost was entirely passed 
on to borrowers. Given these assumptions, the analysis concluded there 
would be a slight increase in the cost of borrowing and a slight 
decrease in the growth of gross domestic product. The analysis 
concluded that this cost would be more than offset by the benefit to 
gross domestic product resulting from a reduced likelihood of prolonged 
economic downturns associated with a banking system whose lending 
capacity is highly vulnerable to economic shocks.
---------------------------------------------------------------------------

    \22\ See ``Assessing the macroeconomic impact of the transition 
to stronger capital and liquidity requirements'' (MAG Analysis), 
Attachment E, also available at: https://www.bis.orpublIothp12.pdf. 
See also ``Results of the comprehensive quantitative impact study,'' 
Attachment F, also available at: https://www.bis.org/publ/bcbs186.pdf.
    \23\ See ``An assessment of the long-term economic impact of 
stronger capital and liquidity requirements,'' Executive Summary, 
pg. 1, Attachment G.
---------------------------------------------------------------------------

    The agencies' analysis also indicates that the overwhelming 
majority of banking organizations already have sufficient capital to 
comply with the new capital rules. In particular, the agencies estimate 
that over 95 percent of all insured depository institutions would be in 
compliance with the minimums and buffers established under the interim 
final rule if it were fully effective immediately. The interim final 
rule will help to ensure that these FDIC-supervised institutions 
maintain their capacity to absorb losses in the future. Some FDIC-
supervised institutions may need to take advantage of the transition 
period in the interim final rule to accumulate retained earnings, raise 
additional external regulatory capital, or both. As noted above, 
however, the overwhelming majority of banking organizations have 
sufficient capital to comply with the revised capital rules, and the 
FDIC believes that the resulting improvements to the stability and 
resilience of the banking system outweigh any costs associated with its 
implementation.
    The interim final rule includes some significant revisions from the 
proposals in response to commenters' concerns, particularly with 
respect to the treatment of AOCI; residential mortgages; tier 1 non-
qualifying capital instruments; and the implementation timeframes. The 
timeframes for compliance are described in the next section and more 
detailed discussions of modifications to the proposals are provided in 
the remainder of the preamble.
    Consistent with the proposed rules, the interim final rule requires 
all FDIC-supervised institutions to recognize in regulatory capital all 
components of AOCI, excluding accumulated net gains and losses on cash-
flow hedges that relate to the hedging of items that are not recognized 
at fair value on the balance sheet. However, while the FDIC believes 
that the proposed AOCI treatment results in a regulatory capital

[[Page 55348]]

measure that better reflects FDIC-supervised institutions' actual loss 
absorption capacity at a specific point in time, the FDIC recognizes 
that for many FDIC-supervised institutions, the volatility in 
regulatory capital that could result from the proposals could lead to 
significant difficulties in capital planning and asset-liability 
management. The FDIC also recognizes that the tools used by larger, 
more complex FDIC-supervised institutions for managing interest rate 
risk are not necessarily readily available for all FDIC-supervised 
institutions.
    Accordingly, under the interim final rule, and as discussed in more 
detail in section V.B of this preamble, an FDIC-supervised institution 
that is not subject to the advanced approaches rule may make a one-time 
election not to include most elements of AOCI in regulatory capital 
under the interim final rule and instead effectively use the existing 
treatment under the general risk-based capital rules that excludes most 
AOCI elements from regulatory capital (AOCI opt-out election). Such an 
FDIC-supervised institution must make its AOCI opt-out election in its 
Consolidated Reports of Condition and Income (Call Report) filed for 
the first reporting period after it becomes subject to the interim 
final rule. Consistent with regulatory capital calculations under the 
FDIC's general risk-based capital rules, an FDIC-supervised institution 
that makes an AOCI opt-out election under the interim final rule must 
adjust common equity tier 1 capital by: (1) Subtracting any net 
unrealized gains and adding any net unrealized losses on AFS 
securities; (2) subtracting any unrealized losses on AFS preferred 
stock classified as an equity security under GAAP and AFS equity 
exposures; (3) subtracting any accumulated net gains and adding any 
accumulated net losses on cash-flow hedges; (4) subtracting amounts 
recorded in AOCI attributed to defined benefit postretirement plans 
resulting from the initial and subsequent application of the relevant 
GAAP standards that pertain to such plans (excluding, at the FDIC-
supervised institution's option, the portion relating to pension assets 
deducted under section 22(a)(5) of the interim final rule); and (5) 
subtracting any net unrealized gains and adding any net unrealized 
losses on held-to-maturity securities that are included in AOCI. 
Consistent with the general risk-based capital rules, common equity 
tier 1 capital includes any net unrealized losses on AFS equity 
securities and any foreign currency translation adjustment. An FDIC-
supervised institution that makes an AOCI opt-out election may 
incorporate up to 45 percent of any net unrealized gains on AFS 
preferred stock classified as an equity security under GAAP and AFS 
equity exposures into its tier 2 capital.
    An FDIC-supervised institution that does not make an AOCI opt-out 
election on the Call Report filed for the first reporting period after 
the FDIC-supervised institution becomes subject to the interim final 
rule will be required to recognize AOCI (excluding accumulated net 
gains and losses on cash-flow hedges that relate to the hedging of 
items that are not recognized at fair value on the balance sheet) in 
regulatory capital as of the first quarter in which it calculates its 
regulatory capital requirements under the interim final rule and 
continuing thereafter.
    The FDIC has decided not to adopt the proposed treatment of 
residential mortgages. The FDIC has considered the commenters' 
observations about the burden of calculating the risk weights for FDIC-
supervised institutions' existing mortgage portfolios, and has taken 
into account the commenters' concerns that the proposal did not 
properly assess the use of different mortgage products across different 
types of markets in establishing the proposed risk weights. The FDIC is 
also particularly mindful of comments regarding the potential effect of 
the proposal and other mortgage-related rulemakings on credit 
availability. In light of these considerations, as well as others 
raised by commenters, the FDIC has decided to retain in the interim 
final rule the current treatment for residential mortgage exposures 
under the general risk-based capital rules.
    Consistent with the general risk-based capital rules, the interim 
final rule assigns a 50 or 100 percent risk weight to exposures secured 
by one-to-four family residential properties. Generally, residential 
mortgage exposures secured by a first lien on a one-to-four family 
residential property that are prudently underwritten and that are 
performing according to their original terms receive a 50 percent risk 
weight. All other one- to four-family residential mortgage loans, 
including exposures secured by a junior lien on residential property, 
are assigned a 100 percent risk weight. If an FDIC-supervised 
institution holds the first and junior lien(s) on a residential 
property and no other party holds an intervening lien, the FDIC-
supervised institution must treat the combined exposure as a single 
loan secured by a first lien for purposes of assigning a risk weight.
    The agencies also considered comments on the proposal to require 
certain depository institution holding companies to phase out their 
non-qualifying tier 1 capital instruments from regulatory capital over 
ten years. Although the agencies continue to believe that non-
qualifying instruments do not absorb losses sufficiently to be included 
in tier 1 capital as a general matter, the agencies are also sensitive 
to the difficulties community banking organizations often face when 
issuing new capital instruments and are aware of the importance their 
capacity to lend can play in local economies. Therefore, the final rule 
adopted by the Federal Reserve allows certain depository institution 
holding companies to include in regulatory capital debt or equity 
instruments issued prior to September 12, 2010 that do not meet the 
criteria for additional tier 1 or tier 2 capital instruments but that 
were included in tier 1 or tier 2 capital respectively as of September 
12, 2010 up to the percentage of the outstanding principal amount of 
such non-qualifying capital instruments.

D. Timeframe for Implementation and Compliance

    In order to give non-internationally active FDIC-supervised 
institutions more time to comply with the interim final rule and 
simplify their transition to the new regime, the interim final rule 
will require compliance from different types of organizations at 
different times. Generally, and as described in further detail below, 
FDIC-supervised institutions that are not subject to the advanced 
approaches rule must begin complying with the interim final rule on 
January 1, 2015, whereas advanced approaches FDIC-supervised 
institutions must begin complying with the interim final rule on 
January 1, 2014. The FDIC believes that advanced approaches FDIC-
supervised institutions have the sophistication, infrastructure, and 
capital markets access to implement the interim final rule earlier than 
either FDIC-supervised institutions that do not meet the asset size or 
foreign exposure threshold for application of those rules.
    A number of commenters requested that the agencies clarify the 
point at which a banking organization that meets the asset size or 
foreign exposure threshold for application of the advanced approaches 
rule becomes subject to subpart E of the proposed rule, and thus all of 
the provisions that apply to an advanced approaches banking 
organization. In particular, commenters requested that the agencies 
clarify whether subpart E of the proposed rule only applies to those 
banking organizations that have

[[Page 55349]]

completed the parallel run process and that have received notification 
from their primary Federal supervisor pursuant to section 324.121(d) of 
subpart E, or whether subpart E would apply to all banking 
organizations that meet the relevant thresholds without reference to 
completion of the parallel run process.
    The interim final rule provides that an advanced approaches FDIC-
supervised institution is one that meets the asset size or foreign 
exposure thresholds for or has opted to apply the advanced approaches 
rule, without reference to whether that FDIC-supervised institution has 
completed the parallel run process and has received notification from 
its primary Federal supervisor pursuant to section 324.121(d) of 
subpart E of the interim final rule. The FDIC has also clarified in the 
interim final rule when completion of the parallel run process and 
receipt of notification from the primary Federal supervisor pursuant to 
section 324.121(d) of subpart E is necessary for an advanced approaches 
FDIC-supervised institution to comply with a particular aspect of the 
rules. For example, only an advanced approaches FDIC-supervised 
institution that has completed parallel run and received notification 
from its primary Federal supervisor under Section 324.121(d) of subpart 
E must make the disclosures set forth under subpart E of the interim 
final rule. However, an advanced approaches FDIC-supervised institution 
must recognize most components of AOCI in common equity tier 1 capital 
and must meet the supplementary leverage ratio when applicable without 
reference to whether the FDIC-supervised institution has completed its 
parallel run process.
    Beginning on January 1, 2015, FDIC-supervised institutions that are 
not subject to the advanced approaches rule become subject to the 
revised definitions of regulatory capital, the new minimum regulatory 
capital ratios, and the regulatory capital adjustments and deductions 
according to the transition provisions.\24\ All FDIC-supervised 
institutions must begin calculating standardized total risk-weighted 
assets in accordance with subpart D of the interim final rule, and if 
applicable, the revised market risk rule under subpart F, on January 1, 
2015.\25\
---------------------------------------------------------------------------

    \24\ Prior to January 1, 2015, such FDIC-supervised institutions 
must continue to use the FDIC's general risk-based capital rules and 
tier 1 leverage rules.
    \25\ The revised PCA thresholds, discussed further in section 
IV.E. of this preamble, become effective for all insured depository 
institutions on January 1, 2015.
---------------------------------------------------------------------------

    Beginning on January 1, 2014, advanced approaches FDIC-supervised 
institutions must begin the transition period for the revised minimum 
regulatory capital ratios, definitions of regulatory capital, and 
regulatory capital adjustments and deductions established under the 
interim final rule. The revisions to the advanced approaches risk-
weighted asset calculations will become effective on January 1, 2014.
    From January 1, 2014 to December 31, 2014, an advanced approaches 
FDIC-supervised institution that is on parallel run must calculate 
risk-weighted assets using the general risk-based capital rules and 
substitute such risk-weighted assets for its standardized total risk-
weighted assets for purposes of determining its risk-based capital 
ratios. An advanced approaches FDIC-supervised institution on parallel 
run must also calculate advanced approaches total risk-weighted assets 
using the advanced approaches rule in subpart E of the interim final 
rule for purposes of confidential reporting to its primary Federal 
supervisor on the Federal Financial Institutions Examination Council's 
(FFIEC) 101 report. An advanced approaches FDIC-supervised institution 
that has completed the parallel run process and that has received 
notification from its primary Federal supervisor pursuant to section 
121(d) of subpart E will calculate its risk-weighted assets using the 
general risk-based capital rules and substitute such risk-weighted 
assets for its standardized total risk-weighted assets and also 
calculate advanced approaches total risk-weighted assets using the 
advanced approaches rule in subpart E of the interim final rule for 
purposes of determining its risk-based capital ratios from January 1, 
2014 to December 31, 2014. Regardless of an advanced approaches FDIC-
supervised institution's parallel run status, on January 1, 2015, the 
FDIC-supervised institution must begin to apply subpart D, and if 
applicable, subpart F, of the interim final rule to determine its 
standardized total risk-weighted assets.
    The transition period for the capital conservation and 
countercyclical capital buffers for all FDIC-supervised institutions 
will begin on January 1, 2016.
    An FDIC-supervised institution that is required to comply with the 
market risk rule must comply with the revised market risk rule (subpart 
F) as of the same date that it must comply with other aspects of the 
rule for determining its total risk-weighted assets.

------------------------------------------------------------------------
                                FDIC-Supervised institutions not subject
             Date                   to the advanced approaches rule*
------------------------------------------------------------------------
January 1, 2015..............  Begin compliance with the revised minimum
                                regulatory capital ratios and begin the
                                transition period for the revised
                                definitions of regulatory capital and
                                the revised regulatory capital
                                adjustments and deductions.
                               Begin compliance with the standardized
                                approach for determining risk-weighted
                                assets.
January 1, 2016..............  Begin the transition period for the
                                capital conservation and countercyclical
                                capital buffers.
------------------------------------------------------------------------


------------------------------------------------------------------------
                                  Advanced approaches FDIC-supervised
             Date                            institutions*
------------------------------------------------------------------------
January 1, 2014..............  Begin the transition period for the
                                revised minimum regulatory capital
                                ratios, definitions of regulatory
                                capital, and regulatory capital
                                adjustments and deductions.
                               Begin compliance with the revised
                                advanced approaches rule for determining
                                risk-weighted assets.
January 1, 2015..............  Begin compliance with the standardized
                                approach for determining risk-weighted
                                assets.
January 1, 2016..............  Begin the transition period for the
                                capital conservation and countercyclical
                                capital buffers.
------------------------------------------------------------------------
*If applicable, FDIC-supervised institutions must use the calculations
  in subpart F of the interim final rule (market risk) concurrently with
  the calculation of risk-weighted assets according either to subpart D
  (standardized approach) or subpart E (advanced approaches) of the
  interim final rule.


[[Page 55350]]

IV. Minimum Regulatory Capital Ratios, Additional Capital Requirements, 
and Overall Capital Adequacy

A. Minimum Risk-based Capital Ratios and Other Regulatory Capital 
Provisions

    Consistent with Basel III, the proposed rule would have required 
banking organizations to comply with the following minimum capital 
ratios: a common equity tier 1 capital to risk-weighted assets ratio of 
4.5 percent; a tier 1 capital to risk-weighted assets ratio of 6 
percent; a total capital to risk-weighted assets ratio of 8 percent; a 
leverage ratio of 4 percent; and for advanced approaches banking 
organizations only, a supplementary leverage ratio of 3 percent. The 
common equity tier 1 capital ratio is a new minimum requirement 
designed to ensure that banking organizations hold sufficient high-
quality regulatory capital that is available to absorb losses on a 
going-concern basis. The proposed capital ratios would apply to a 
banking organization on a consolidated basis.
    The agencies received a substantial number of comments on the 
proposed minimum risk-based capital requirements. Several commenters 
supported the proposal to increase the minimum tier 1 risk-based 
capital requirement. Other commenters commended the agencies for 
proposing to implement a minimum capital requirement that focuses 
primarily on common equity. These commenters argued that common equity 
is the strongest form of capital and that the proposed minimum common 
equity tier 1 capital ratio of 4.5 percent would promote the safety and 
soundness of the banking industry.
    Other commenters provided general support for the proposed 
increases in minimum risk-based capital requirements, but expressed 
concern that the proposals could present unique challenges to mutual 
institutions because they can only raise common equity through retained 
earnings. A number of commenters asserted that the objectives of the 
proposal could be achieved through regulatory mechanisms other than the 
proposed risk-based capital requirements, including enhanced safety and 
soundness examinations, more stringent underwriting standards, and 
alternative measures of capital.
    Other commenters objected to the proposed increase in the minimum 
tier 1 capital ratio and the implementation of a common equity tier 1 
capital ratio. One commenter indicated that increases in regulatory 
capital ratios would severely limit growth at many community banking 
organizations and could encourage consolidation through mergers and 
acquisitions. Other commenters stated that for banks under $750 million 
in total assets, increased compliance costs would not allow them to 
provide a reasonable return to shareholders, and thus would force them 
to consolidate. Several commenters urged the agencies to recognize 
community banking organizations' limited access to the capital markets 
and related difficulties raising capital to comply with the proposal.
    One banking organization indicated that implementation of the 
common equity tier 1 capital ratio would significantly reduce its 
capacity to grow and recommended that the proposal recognize 
differences in the risk and complexity of banking organizations and 
provide favorable, less stringent requirements for smaller and non-
complex institutions. Another commenter suggested that the proposed 
implementation of an additional risk-based capital ratio would confuse 
market observers and recommended that the agencies implement a 
regulatory capital framework that allows investors and the market to 
ascertain regulatory capital from measures of equity derived from a 
banking organization's balance sheet.
    Other commenters expressed concern that the proposed common equity 
tier 1 capital ratio would disadvantage MDIs relative to other banking 
organizations. According to the commenters, in order to retain their 
minority-owned status, MDIs historically maintain a relatively high 
percentage of non-voting preferred stockholders that provide long-term, 
stable sources of capital. Any public offering to increase common 
equity tier 1 capital levels would dilute the minority investors owning 
the common equity of the MDI and could potentially compromise the 
minority-owned status of such institutions. One commenter asserted 
that, for this reason, the implementation of the Basel III NPR would be 
contrary to the statutory mandate of section 308 of the Financial 
Institutions, Reform, Recovery and Enforcement Act (FIRREA).\26\ 
Accordingly, the commenters encouraged the agencies to exempt MDIs from 
the proposed common equity tier 1 capital ratio requirement.
---------------------------------------------------------------------------

    \26\ 12 U.S.C. 1463 note.
---------------------------------------------------------------------------

    The FDIC believes that all FDIC-supervised institutions must have 
an adequate amount of loss-absorbing capital to continue to lend to 
their communities during times of economic stress, and therefore have 
decided to implement the regulatory capital requirements, including the 
minimum common equity tier 1 capital requirement, as proposed. For the 
reasons described in the NPR, including the experience during the 
crisis with lower quality capital instruments, the FDIC does not 
believe it is appropriate to maintain the general risk-based capital 
rules or to rely on the supervisory process or underwriting standards 
alone. Accordingly, the interim final rule maintains the minimum common 
equity tier 1 capital to total risk-weighted assets ratio of 4.5 
percent. The FDIC has decided not to pursue the alternative regulatory 
mechanisms suggested by commenters, as such alternatives would be 
difficult to implement consistently across FDIC-supervised institutions 
and would not necessarily fulfill the objective of increasing the 
amount and quality of regulatory capital for all FDIC-supervised 
institutions.
    In view of the concerns expressed by commenters with respect to 
MDIs, the FDIC evaluated the risk-based and leverage capital levels of 
MDIs to determine whether the interim final rule would 
disproportionately impact such institutions. This analysis found that 
of the 178 MDIs in existence as of March 31, 2013, 12 currently are not 
well capitalized for PCA purposes, whereas (according to the FDIC's 
estimates) 14 would not be considered well capitalized for PCA purposes 
under the interim final rule if it were fully implemented without 
transition today. Accordingly, the FDIC does not believe that the 
interim final rule would disproportionately impact MDIs and are not 
adopting any exemptions or special provisions for these institutions. 
While the FDIC recognizes MDIs may face impediments in meeting the 
common equity tier 1 capital ratio, the FDIC believes that the 
improvements to the safety and soundness of these institutions through 
higher capital standards are warranted and consistent with their 
obligations under section 308 of FIRREA. As a prudential matter, the 
FDIC has a long-established regulatory policy that FDIC-supervised 
institutions should hold capital commensurate with the level and nature 
of the risks to which they are exposed, which may entail holding 
capital significantly above the minimum requirements, depending on the 
nature of the FDIC-supervised institution's activities and risk 
profile. Section IV.G of this preamble describes the requirement for 
overall capital adequacy of FDIC-supervised institutions and the

[[Page 55351]]

supervisory assessment of capital adequacy.
    Furthermore, consistent with the FDIC's authority under the general 
risk-based capital rules and the proposals, section 1(d) of the interim 
final rule includes a reservation of authority that allows FDIC to 
require the FDIC-supervised institution to hold a greater amount of 
regulatory capital than otherwise is required under the interim final 
rule, if the FDIC determines that the regulatory capital held by the 
FDIC-supervised institution is not commensurate with its credit, 
market, operational, or other risks. In exercising reservation of 
authority under the rule, the FDIC expects to consider the size, 
complexity, risk profile, and scope of operations of the FDIC-
supervised institution; and whether any public benefits would be 
outweighed by risk to an insured depository institution or to the 
financial system.

B. Leverage Ratio

    The proposals would require a banking organization to satisfy a 
leverage ratio of 4 percent, calculated using the proposed definition 
of tier 1 capital and the banking organization's average total 
consolidated assets, minus amounts deducted from tier 1 capital. The 
agencies also proposed to eliminate the exception in the agencies' 
leverage rules that provides for a minimum leverage ratio of 3 percent 
for banking organizations with strong supervisory ratings.
    The agencies received a number of comments on the proposed leverage 
ratio applicable to all banking organizations. Several of these 
commenters supported the proposed leverage ratio, stating that it 
serves as a simple regulatory standard that constrains the ability of a 
banking organization to leverage its equity capital base. Some of the 
commenters encouraged the agencies to consider an alternative leverage 
ratio measure of tangible common equity to tangible assets, which would 
exclude non-common stock elements from the numerator and intangible 
assets from the denominator of the ratio and thus, according to these 
commenters, provide a more reliable measure of a banking organization's 
viability in a crisis.
    A number of commenters criticized the proposed removal of the 3 
percent exception to the minimum leverage ratio requirement for certain 
banking organizations. One of these commenters argued that removal of 
this exception is unwarranted in view of the cumulative impact of the 
proposals and that raising the minimum leverage ratio requirement for 
the strongest banking organizations may lead to a deleveraging by the 
institutions most able to extend credit in a safe and sound manner. In 
addition, the commenters cautioned the agencies that a restrictive 
leverage measure, together with more stringent risk-based capital 
requirements, could magnify the potential impact of an economic 
downturn.
    Several commenters suggested modifications to the minimum leverage 
ratio requirement. One commenter suggested increasing the minimum 
leverage ratio requirement for all banking organizations to 6 percent, 
whereas another commenter recommended a leverage ratio requirement as 
high as 20 percent. Another commenter suggested a tiered approach, with 
minimum leverage ratio requirements of 6.25 percent and 8.5 percent for 
community banking organizations and large banking organizations, 
respectively. According to this commenter, such an approach could be 
based on the risk characteristics of a banking organization, including 
liquidity, asset quality, and local deposit levels, as well as its 
supervisory rating. Another commenter suggested a fluid leverage ratio 
requirement that would adjust based on certain macroeconomic variables. 
Under such an approach, the agencies could require banking 
organizations to meet a minimum leverage ratio of 10 percent under 
favorable economic conditions and a 6 percent leverage ratio during an 
economic contraction.
    The FDIC continues to believe that a minimum leverage ratio 
requirement of 4 percent for all FDIC-supervised institutions is 
appropriate in light of its role as a complement to the risk-based 
capital ratios. The proposed leverage ratio is more conservative than 
the current leverage ratio because it incorporates a more stringent 
definition of tier 1 capital. In addition, the FDIC believes that it is 
appropriate for all FDIC-supervised institutions, regardless of their 
supervisory rating or trading activities, to meet the same minimum 
leverage ratio requirements. As a practical matter, the FDIC generally 
has found a leverage ratio of less than 4 percent to be inconsistent 
with a supervisory composite rating of ``1.'' Modifying the scope of 
the leverage ratio measure or implementing a fluid or tiered approach 
for the minimum leverage ratio requirement would create additional 
operational complexity and variability in a minimum ratio requirement 
that is intended to place a constraint on the maximum degree to which 
an FDIC-supervised institution can leverage its equity base. 
Accordingly, the interim final rule retains the existing minimum 
leverage ratio requirement of 4 percent and removes the 3 percent 
leverage ratio exception as of January 1, 2014 for advanced approaches 
FDIC-supervised institutions and as of January 1, 2015 for all other 
FDIC-supervised institutions.

C. Supplementary Leverage Ratio for Advanced Approaches FDIC-Supervised 
Institutions

    As part of Basel III, the BCBS introduced a minimum leverage ratio 
requirement of 3 percent (the Basel III leverage ratio) as a backstop 
measure to the risk-based capital requirements, designed to improve the 
resilience of the banking system worldwide by limiting the amount of 
leverage that a banking organization may incur. The Basel III leverage 
ratio is defined as the ratio of tier 1 capital to a combination of on- 
and off-balance sheet exposures.
    As discussed in the Basel III NPR, the agencies proposed the 
supplementary leverage ratio only for advanced approaches banking 
organizations because these banking organizations tend to have more 
significant amounts of off-balance sheet exposures that are not 
captured by the current leverage ratio. Under the proposal, consistent 
with Basel III, advanced approaches banking organizations would be 
required to maintain a minimum supplementary leverage ratio of 3 
percent of tier 1 capital to on- and off-balance sheet exposures (total 
leverage exposure).
    The agencies received a number of comments on the proposed 
supplementary leverage ratio. Several commenters stated that the 
proposed supplementary leverage ratio is unnecessary in light of the 
minimum leverage ratio requirement applicable to all banking 
organizations. These commenters stated that the implementation of the 
supplementary leverage ratio requirement would create market confusion 
as to the inter-relationships among the ratios and as to which ratio 
serves as the binding constraint for an individual banking 
organization. One commenter noted that an advanced approaches banking 
organization would be required to calculate eight distinct regulatory 
capital ratios (common equity tier 1, tier 1, and total capital to 
risk-weighted assets under the advanced approaches and the standardized 
approach, as well as two leverage ratios) and encouraged the agencies 
to streamline the application of regulatory capital ratios. In 
addition, commenters suggested that the agencies postpone the 
implementation of the supplementary

[[Page 55352]]

leverage ratio until January 1, 2018, after the international 
supervisory monitoring process is complete, and to collect 
supplementary leverage ratio information on a confidential basis until 
then.
    At least one commenter encouraged the agencies to consider 
extending the application of the proposed supplementary leverage ratio 
on a case-by-case basis to banking organizations with total assets of 
between $50 billion and $250 billion, stating that such institutions 
may have significant off-balance sheet exposures and engage in a 
substantial amount of repo-style transactions. Other commenters 
suggested increasing the proposed supplementary leverage ratio 
requirement to at least 8 percent for BHCs, under the Federal Reserve's 
authority in section 165 of the Dodd-Frank Act to implement enhanced 
capital requirements for systemically important financial 
institutions.\27\
---------------------------------------------------------------------------

    \27\ See section 165 of the Dodd-Frank Act, 12 U.S.C. 5365.
---------------------------------------------------------------------------

    With respect to specific aspects of the supplementary leverage 
ratio, some commenters criticized the methodology for the total 
leverage exposure. Specifically, one commenter expressed concern that 
using GAAP as the basis for determining a banking organization's total 
leverage exposure would exclude a wide range of off-balance sheet 
exposures, including derivatives and securities lending transactions, 
as well as permit extensive netting. To address these issues, the 
commenter suggested requiring advanced approaches banking organizations 
to determine their total leverage exposure using International 
Financial Reporting Standards (IFRS), asserting that it restricts 
netting and, relative to GAAP, requires the recognition of more off-
balance sheet securities lending transactions.
    Several commenters criticized the proposed incorporation of off-
balance sheet exposures into the total leverage exposure. One commenter 
argued that including unfunded commitments in the total leverage 
exposure runs counter to the purpose of the supplementary leverage 
ratio as an on-balance sheet measure of capital that complements the 
risk-based capital ratios. This commenter was concerned that the 
proposed inclusion of unfunded commitments would result in a 
duplicative assessment against banking organizations when the 
forthcoming liquidity ratio requirements are implemented in the United 
States. The commenter noted that the proposed 100 percent credit 
conversion factor for all unfunded commitments is not appropriately 
calibrated to the vastly different types of commitments that exist 
across the industry. If the supplementary leverage ratio is retained in 
the interim final rule, the commenter requested that the agencies align 
the credit conversion factors for unfunded commitments under the 
supplementary leverage ratio and any forthcoming liquidity ratio 
requirements.
    Another commenter encouraged the agencies to allow advanced 
approaches banking organizations to exclude from total leverage 
exposure the notional amount of any unconditionally cancellable 
commitment. According to this commenter, unconditionally cancellable 
commitments are not credit exposures because they can be extinguished 
at any time at the sole discretion of the issuing entity. Therefore, 
the commenter argued, the inclusion of these commitments could 
potentially distort a banking organization's measure of total leverage 
exposure.
    A few commenters requested that the agencies exclude off-balance 
sheet trade finance instruments from the total leverage exposure, 
asserting that such instruments are based on underlying client 
transactions (for example, a shipment of goods) and are generally 
short-term. The commenters argued that trade finance instruments do not 
create excessive systemic leverage and that they are liquidated by 
fulfillment of the underlying transaction and payment at maturity. 
Another commenter requested that the agencies apply the same credit 
conversion factors to trade finance instruments as under the general 
risk-based capital rules--that is, 20 percent of the notional value for 
trade-related contingent items that arise from the movement of goods, 
and 50 percent of the notional value for transaction-related contingent 
items, including performance bonds, bid bonds, warranties, and 
performance standby letters of credit. According to this commenter, 
such an approach would appropriately consider the low-risk 
characteristics of these instruments and ensure price stability in 
trade finance.
    Several commenters supported the proposed treatment for repo-style 
transactions (including repurchase agreements, securities lending and 
borrowing transactions, and reverse repos). These commenters stated 
that securities lending transactions are fully collateralized and 
marked to market daily and, therefore, the on-balance sheet amounts 
generated by these transactions appropriately capture the exposure for 
purposes of the supplementary leverage ratio. These commenters also 
supported the proposed treatment for indemnified securities lending 
transactions and encouraged the agencies to retain this treatment in 
the interim final rule. Other commenters stated that the proposed 
measurement of repo-style transactions is not sufficiently conservative 
and recommended that the agencies implement a methodology that includes 
in total leverage exposure the notional amounts of these transactions.
    A few commenters raised concerns about the proposed methodology for 
determining the exposure amount of derivative contracts. Some 
commenters criticized the agencies for not allowing advanced approaches 
banking organizations to use the internal models methodology to 
calculate the exposure amount for derivative contracts. According to 
these commenters, the agencies should align the methods for calculating 
exposure for derivative contracts for purposes of the supplementary 
leverage ratio and the advanced approaches risk-based capital ratios to 
more appropriately reflect the risk-management activities of advanced 
approaches banking organizations and to measure these exposures 
consistently across the regulatory capital ratios. At least one 
commenter requested clarification of the proposed treatment of 
collateral received in connection with derivative contracts. This 
commenter also encouraged the agencies to permit recognition of 
eligible collateral for purposes of reducing total leverage exposure, 
consistent with proposed legislation in other BCBS member 
jurisdictions.
    The introduction of an international leverage ratio requirement in 
the Basel III capital framework is an important development that would 
provide a consistent leverage ratio measure across internationally-
active institutions. Furthermore, the supplementary leverage ratio is 
reflective of the on- and off-balance sheet activities of large, 
internationally active banking organizations. Accordingly, consistent 
with Basel III, the interim final rule implements for reporting 
purposes the proposed supplementary leverage ratio for advanced 
approaches FDIC-supervised institutions starting on January 1, 2015 and 
requires advanced approaches FDIC-supervised institutions to comply 
with the minimum supplementary leverage ratio requirement starting on 
January 1, 2018. Public reporting of the supplementary leverage ratio 
during the international supervisory monitoring period is consistent 
with the international implementation timeline and enables transparency 
and comparability of

[[Page 55353]]

reporting the leverage ratio requirement across jurisdictions.
    The FDIC is not applying the supplementary leverage ratio 
requirement to FDIC-supervised institutions that are not subject to the 
advanced approaches rule in the interim final rule. Applying the 
supplementary leverage ratio routinely could create operational 
complexity for smaller FDIC-supervised institutions that are not 
internationally active, and that generally do not have off-balance 
sheet activities that are as extensive as FDIC-supervised institutions 
that are subject to the advanced approaches rule. The FDIC notes that 
the interim final rule imposes risk-based capital requirements on all 
repo-style transactions and otherwise imposes constraints on all FDIC-
supervised institutions' off-balance sheet exposures.
    With regard to the commenters' views to require the use of IFRS for 
purposes of the supplementary leverage ratio, the FDIC notes that the 
use of GAAP in the interim final rule as a starting point to measure 
exposure of certain derivatives and repo-style transactions, has the 
advantage of maintaining consistency between regulatory capital 
calculations and regulatory reporting, the latter of which must be 
consistent with GAAP or, if another accounting principle is used, no 
less stringent than GAAP.\28\
---------------------------------------------------------------------------

    \28\ See 12 U.S.C. 1831n(a)(2).
---------------------------------------------------------------------------

    In response to the commenters' views regarding the scope of the 
total leverage exposure, the FDIC notes that the supplementary leverage 
ratio is intended to capture on- and off-balance sheet exposures of an 
FDIC-supervised institution. Commitments represent an agreement to 
extend credit and thus including commitments (both funded and unfunded) 
in the supplementary leverage ratio is consistent with its purpose to 
measure the on- and off-balance sheet leverage of an FDIC-supervised 
institution, as well as with safety and soundness principles. 
Accordingly, the FDIC believes that total leverage exposure should 
include FDIC-supervised institutions' off-balance sheet exposures, 
including all loan commitments that are not unconditionally 
cancellable, financial standby letters of credit, performance standby 
letters of credit, and commercial and other similar letters of credit.
    The proposal to include unconditionally cancellable commitments in 
the total leverage exposure recognizes that a banking organization may 
extend credit under the commitment before it is cancelled. If the 
banking organization exercises its option to cancel the commitment, its 
total leverage exposure amount with respect to the commitment will be 
limited to any extension of credit prior to cancellation. The proposal 
considered banking organizations' ability to cancel such commitments 
and, therefore, limited the amount of unconditionally cancellable 
commitments included in total leverage exposure to 10 percent of the 
notional amount of such commitments.
    The FDIC notes that the credit conversion factors used in the 
supplementary leverage ratio and in any forthcoming liquidity ratio 
requirements have been developed to serve the purposes of the 
respective frameworks and may not be identical. Similarly, the 
commenters' proposed modifications to credit conversion factors for 
trade finance transactions would be inconsistent with the purpose of 
the supplementary leverage ratio--to capture all off-balance sheet 
exposures of banking organizations in a primarily non-risk-based 
manner.
    For purposes of incorporating derivative contracts in the total 
leverage exposure, the proposal would require all advanced approaches 
banking organizations to use the same methodology to measure such 
exposures. The proposed approach provides a uniform measure of exposure 
for derivative contracts across banking organizations, without regard 
to their models. Accordingly, the FDIC does not believe an FDIC-
supervised institution should be permitted to use internal models to 
measure the exposure amount of derivative contracts for purposes of the 
supplementary leverage ratio.
    With regard to commenters requesting a modification of the proposed 
treatment for repo-style transactions, the FDIC does not believe that 
the proposed modifications are warranted at this time because 
international discussions and quantitative analysis of the exposure 
measure for repo-style transactions are still ongoing.
    The FDIC is continuing to work with the BCBS to assess the Basel 
III leverage ratio, including its calibration and design, as well as 
the impact of any differences in national accounting frameworks 
material to the denominator of the Basel III leverage ratio. The FDIC 
will consider any changes to the supplementary leverage ratio as the 
BCBS revises the Basel III leverage ratio.
    Therefore, the FDIC has adopted the proposed supplementary leverage 
ratio in the interim final rule without modification. An advanced 
approaches FDIC-supervised institution must calculate the supplementary 
leverage ratio as the simple arithmetic mean of the ratio of the FDIC-
supervised institution's tier 1 capital to total leverage exposure as 
of the last day of each month in the reporting quarter. The FDIC also 
notes that collateral may not be applied to reduce the potential future 
exposure (PFE) amount for derivative contracts.
    Under the interim final rule, total leverage exposure equals the 
sum of the following:
    (1) The balance sheet carrying value of all of the FDIC-supervised 
institution's on-balance sheet assets less amounts deducted from tier 1 
capital under section 22(a), (c), and (d) of the interim final rule;
    (2) The PFE amount for each derivative contract to which the FDIC-
supervised institution is a counterparty (or each single-product 
netting set of such transactions) determined in accordance with section 
34 of the interim final rule, but without regard to section 34(b);
    (3) 10 percent of the notional amount of unconditionally 
cancellable commitments made by the FDIC-supervised institution; and
    (4) The notional amount of all other off-balance sheet exposures of 
the FDIC-supervised institution (excluding securities lending, 
securities borrowing, reverse repurchase transactions, derivatives and 
unconditionally cancellable commitments).
    Advanced approaches FDIC-supervised institutions must maintain a 
minimum supplementary leverage ratio of 3 percent beginning on January 
1, 2018, consistent with Basel III. However, as noted above, beginning 
on January 1, 2015, advanced approaches FDIC-supervised institutions 
must calculate and report their supplementary leverage ratio.
    The FDIC is seeking commenters' views on the interaction of this 
interim final rule with the proposed rule regarding the supplementary 
leverage ratio for large, systemically important banking organizations.

D. Capital Conservation Buffer

    During the recent financial crisis, some banking organizations 
continued to pay dividends and substantial discretionary bonuses even 
as their financial condition weakened. Such capital distributions had a 
significant negative impact on the overall strength of the banking 
sector. To encourage better capital conservation by banking 
organizations and to enhance the resilience of the banking system, the 
proposed rule would have limited capital distributions and 
discretionary bonus payments for banking organizations that do not hold 
a

[[Page 55354]]

specified amount of common equity tier 1 capital in addition to the 
amount of regulatory capital necessary to meet the minimum risk-based 
capital requirements (capital conservation buffer), consistent with 
Basel III. In this way, the capital conservation buffer is intended to 
provide incentives for banking organizations to hold sufficient capital 
to reduce the risk that their capital levels would fall below their 
minimum requirements during a period of financial stress.
    The proposed rules incorporated a capital conservation buffer 
composed of common equity tier 1 capital in addition to the minimum 
risk-based capital requirements. Under the proposal, a banking 
organization would need to hold a capital conservation buffer in an 
amount greater than 2.5 percent of total risk-weighted assets (plus, 
for an advanced approaches banking organization, 100 percent of any 
applicable countercyclical capital buffer amount) to avoid limitations 
on capital distributions and discretionary bonus payments to executive 
officers, as defined in the proposal. The proposal provided that the 
maximum dollar amount that a banking organization could pay out in the 
form of capital distributions or discretionary bonus payments during 
the current calendar quarter (the maximum payout amount) would be equal 
to a maximum payout ratio, multiplied by the banking organization's 
eligible retained income, as discussed below. The proposal provided 
that a banking organization with a buffer of more than 2.5 percent of 
total risk-weighted assets (plus, for an advanced approaches banking 
organization, 100 percent of any applicable countercyclical capital 
buffer), would not be subject to a maximum payout amount. The proposal 
clarified that the agencies reserved the ability to restrict capital 
distributions under other authorities and that restrictions on capital 
distributions and discretionary bonus payments associated with the 
capital conservation buffer would not be part of the PCA framework. The 
calibration of the buffer is supported by an evaluation of the loss 
experience of U.S. banking organizations as part of an analysis 
conducted by the BCBS, as well as by evaluation of historical levels of 
capital at U.S. banking organizations.\29\
---------------------------------------------------------------------------

    \29\ ``Calibrating regulatory capital requirements and buffers: 
A top-down approach.'' Basel Committee on Banking Supervision, 
October, 2010, available at www.bis.org.
---------------------------------------------------------------------------

    The agencies received a significant number of comments on the 
proposed capital conservation buffer. In general, the commenters 
characterized the capital conservation buffer as overly conservative, 
and stated that the aggregate amount of capital that would be required 
for a banking organization to avoid restrictions on dividends and 
discretionary bonus payments under the proposed rule exceeded the 
amount required for a safe and prudent banking system. Commenters 
expressed concern that the capital conservation buffer could disrupt 
the priority of payments in a banking organization's capital structure, 
as any restrictions on dividends would apply to both common and 
preferred stock. Commenters also questioned the appropriateness of 
restricting a banking organization that fails to comply with the 
capital conservation buffer from paying dividends or bonus payments if 
it has established and maintained cash reserves to cover future 
uncertainty. One commenter supported the establishment of a formal 
mechanism for banking organizations to request agency approval to make 
capital distributions even if doing so would otherwise be restricted 
under the capital conservation buffer.
    Other commenters recommended an exemption from the proposed capital 
conservation buffer for certain types of banking organizations, such as 
community banking organizations, banking organizations organized in 
mutual form, and rural BHCs that rely heavily on bank stock loans for 
growth and expansion purposes. Commenters also recommended a wide range 
of institutions that should be excluded from the buffer based on a 
potential size threshold, such as banking organizations with total 
consolidated assets of less than $250 billion. Commenters also 
recommended that S-corporations be exempt from the proposed capital 
conservation buffer because under the U.S. Internal Revenue Code, S-
corporations are not subject to a corporate-level tax; instead, S-
corporation shareholders must report income and pay income taxes based 
on their share of the corporation's profit or loss. An S-corporation 
generally declares a dividend to help shareholders pay their tax 
liabilities that arise from reporting their share of the corporation's 
profits. According to some commenters, the proposal disadvantaged S-
corporations because shareholders of S-corporations would be liable for 
tax on the S-corporation's net income, and the S-corporation may be 
prohibited from making a dividend to these shareholders to fund the tax 
payment.
    One commenter criticized the proposed composition of the capital 
conservation buffer (which must consist solely of common equity tier 1 
capital) and encouraged the agencies to allow banking organizations to 
include noncumulative perpetual preferred stock and other tier 1 
capital instruments. Several commenters questioned the empirical basis 
for a capital conservation buffer of 2.5 percent, and encouraged the 
agencies to provide a quantitative analysis for the proposal. One 
commenter suggested application of the capital conservation buffer only 
during economic downturn scenarios, consistent with the agencies' 
objective to restrict dividends and discretionary bonus payments during 
these periods. According to this commenter, a banking organization that 
fails to maintain a sufficient capital conservation buffer during 
periods of economic stress also could be required to submit a plan to 
increase its capital.
    After considering these comments, the FDIC has decided to maintain 
common equity tier 1 capital as the basis of the capital conservation 
buffer and to apply the capital conservation buffer to all types of 
FDIC-supervised institutions at all times. Application of the buffer to 
all types of FDIC-supervised institutions and maintenance of a capital 
buffer during periods of market and economic stability is appropriate 
to encourage sound capital management and help ensure that FDIC-
supervised institutions will maintain adequate amounts of loss-
absorbing capital going forward, strengthening the ability of the 
banking system to continue serving as a source of credit to the economy 
in times of stress. A buffer framework that restricts dividends and 
discretionary bonus payments only for certain types of FDIC-supervised 
institutions or only during an economic contraction would not achieve 
these objectives. Similarly, basing the capital conservation buffer on 
the most loss-absorbent form of capital is most consistent with the 
purpose of the capital conservation buffer as it helps to ensure that 
the buffer can be used effectively by FDIC-supervised institutions at a 
time when they are experiencing losses.
    The FDIC recognizes that S-corporation FDIC-supervised institutions 
structure their tax payments differently from C corporations. However, 
the FDIC notes that this distinction results from S-corporations' pass-
through taxation, in which profits are not subject to taxation at the 
corporate level, but rather at the shareholder level. The FDIC is 
charged with evaluating the capital levels and safety and soundness of 
the FDIC-supervised institution. At the point where a decrease in the 
organization's capital triggers dividend restrictions, the

[[Page 55355]]

FDIC believes that capital should stay within the FDIC-supervised 
institution. S-corporation shareholders may receive a benefit from 
pass-through taxation, but with that benefit comes the risk that the 
corporation has no obligation to make dividend distributions to help 
shareholders pay their tax liabilities. Therefore, the interim final 
rule does not exempt S-corporations from the capital conservation 
buffer.
    Accordingly, under the interim final rule an FDIC-supervised 
institution must maintain a capital conservation buffer of common 
equity tier 1 capital in an amount greater than 2.5 percent of total 
risk-weighted assets (plus, for an advanced approaches FDIC-supervised 
institution, 100 percent of any applicable countercyclical capital 
buffer amount) to avoid being subject to limitations on capital 
distributions and discretionary bonus payments to executive officers.
    The proposal defined eligible retained income as a banking 
organization's net income (as reported in the banking organization's 
quarterly regulatory reports) for the four calendar quarters preceding 
the current calendar quarter, net of any capital distributions and 
associated tax effects not already reflected in net income. The 
agencies received a number of comments regarding the proposed 
definition of eligible retained income, which is used to calculate the 
maximum payout amount. Some commenters suggested that the agencies 
limit capital distributions based on retained earnings instead of 
eligible retained income, citing the Federal Reserve's Regulation H as 
an example of this regulatory practice.\30\ Several commenters 
representing banking organizations organized as S-corporations 
recommended revisions to the definition of eligible retained income so 
that it would be net of pass-through tax distributions to shareholders 
that have made a pass-through election for tax purposes, allowing S-
corporation shareholders to pay their tax liability notwithstanding any 
dividend restrictions resulting from failure to comply with the capital 
conservation buffer. Some commenters suggested that the definition of 
eligible retained income be adjusted for items such as goodwill 
impairment that are captured in the definition of ``net income'' for 
regulatory reporting purposes but which do not affect regulatory 
capital.
---------------------------------------------------------------------------

    \30\ See 12 CFR part 208.
---------------------------------------------------------------------------

    The interim final rule adopts the proposed definition of eligible 
retained income without change. The FDIC believes the commenters' 
suggested modifications to the definition of eligible retained income 
would add complexity to the interim final rule and in some cases may be 
counter-productive by weakening the incentives of the capital 
conservation buffer. The FDIC notes that the definition of eligible 
retained income appropriately accounts for impairment charges, which 
reduce eligible retained income but also reduces the balance sheet 
amount of goodwill that is deducted from regulatory capital. Further, 
the proposed definition of eligible retained income, which is based on 
net income as reported in the banking organization's quarterly 
regulatory reports, reflects a simple measure of a banking 
organization's recent performance upon which to base restrictions on 
capital distributions and discretionary payments to executive officers. 
For the same reasons as described above regarding the application of 
the capital conservation buffer to S-corporations generally, the FDIC 
has determined that the definition of eligible retained income should 
not be modified to address the tax-related concerns raised by 
commenters writing on behalf of S-corporations.
    The proposed rule generally defined a capital distribution as a 
reduction of tier 1 or tier 2 capital through the repurchase or 
redemption of a capital instrument or by other means; a dividend 
declaration or payment on any tier 1 or tier 2 capital instrument if 
the banking organization has full discretion to permanently or 
temporarily suspend such payments without triggering an event of 
default; or any similar transaction that the primary Federal supervisor 
determines to be in substance a distribution of capital.
    Commenters provided suggestions on the definition of ``capital 
distribution.'' One commenter requested that a ``capital distribution'' 
be defined to exclude any repurchase or redemption to the extent the 
capital repurchased or redeemed was replaced in a contemporaneous 
transaction by the issuance of capital of an equal or higher quality 
tier. The commenter maintained that the proposal would unnecessarily 
penalize banking organizations that redeem capital but 
contemporaneously replace such capital with an equal or greater amount 
of capital of an equivalent or higher quality. In response to comments, 
and recognizing that redeeming capital instruments that are replaced 
with instruments of the same or similar quality does not weaken a 
banking organization's overall capital position, the interim final rule 
provides that a redemption or repurchase of a capital instrument is not 
a distribution provided that the banking organization fully replaces 
that capital instrument by issuing another capital instrument of the 
same or better quality (that is, more subordinate) based on the interim 
final rule's eligibility criteria for capital instruments, and provided 
that such issuance is completed within the same calendar quarter the 
banking organization announces the repurchase or redemption. For 
purposes of this definition, a capital instrument is issued at the time 
that it is fully paid in. For purposes of the interim final rule, the 
FDIC changed the defined term from ``capital distribution'' to 
``distribution'' to avoid confusion with the term ``capital 
distribution'' used in the Federal Reserve's capital plan rule.\31\
---------------------------------------------------------------------------

    \31\ See 12 CFR 225.8.
---------------------------------------------------------------------------

    The proposed rule defined discretionary bonus payment as a payment 
made to an executive officer of a banking organization (as defined 
below) that meets the following conditions: The banking organization 
retains discretion as to the fact of the payment and as to the amount 
of the payment until the payment is awarded to the executive officer; 
the amount paid is determined by the banking organization without prior 
promise to, or agreement with, the executive officer; and the executive 
officer has no contractual right, express or implied, to the bonus 
payment.
    The agencies received a number of comments on the proposed 
definition of discretionary bonus payments to executive officers. One 
commenter expressed concern that the proposed definition of 
discretionary bonus payment may not be effective unless the agencies 
provided clarification as to the type of payments covered, as well as 
the timing of such payments. This commenter asked whether the proposed 
rule would prohibit the establishment of a pre-funded bonus pool with 
mandatory distributions and sought clarification as to whether non-cash 
compensation payments, such as stock options, would be considered a 
discretionary bonus payment.
    The interim final rule's definition of discretionary bonus payment 
is unchanged from the proposal. The FDIC notes that if an FDIC-
supervised institution prefunds a pool for bonuses payable under a 
contract, the bonus pool is not discretionary and, therefore, is not 
subject to the capital conservation buffer limitations. In addition, 
the definition of discretionary bonus payment does not include non-cash 
compensation payments that do not affect capital or earnings such as, 
in some cases, stock options.

[[Page 55356]]

    Commenters representing community banking organizations maintained 
that the proposed restrictions on discretionary bonus payments would 
disproportionately impact such institutions' ability to attract and 
retain qualified employees. One commenter suggested revising the 
proposed rule so that a banking organization that fails to satisfy the 
capital conservation buffer would be restricted from making a 
discretionary bonus payment only to the extent it exceeds 15 percent of 
the employee's salary, asserting that this would prevent excessive 
bonus payments while allowing community banking organizations 
flexibility to compensate key employees. The interim final rule does 
not incorporate this suggestion. The FDIC notes that the potential 
limitations and restrictions under the capital conservation buffer 
framework do not automatically translate into a prohibition on 
discretionary bonus payments. Instead, the overall dollar amount of 
dividends and bonuses to executive officers is capped based on how 
close the banking organization's regulatory capital ratios are to its 
minimum capital ratios and on the earnings of the banking organization 
that are available for distribution. This approach provides appropriate 
incentives for capital conservation while preserving flexibility for 
institutions to decide how to allocate income available for 
distribution between discretionary bonus payments and other 
distributions.
    The proposal defined executive officer as a person who holds the 
title or, without regard to title, salary, or compensation, performs 
the function of one or more of the following positions: President, 
chief executive officer, executive chairman, chief operating officer, 
chief financial officer, chief investment officer, chief legal officer, 
chief lending officer, chief risk officer, or head of a major business 
line, and other staff that the board of directors of the banking 
organization deems to have equivalent responsibility.\32\
---------------------------------------------------------------------------

    \32\ See 76 FR 21170 (April 14, 2011) for a comparable 
definition of ``executive officer.''
---------------------------------------------------------------------------

    Commenters generally supported a more restrictive definition of 
executive officer, arguing that the definition of executive officer 
should be no broader than the definition under the Federal Reserve's 
Regulation O,\33\ which governs any extension of credit between a 
member bank and an executive officer, director, or principal 
shareholder. Some commenters, however, favored a more expansive 
definition of executive officer, with one commenter supporting the 
inclusion of directors of the banking organization or directors of any 
of the banking organization's affiliates, any other person in control 
of the banking organization or the banking organizations' affiliates, 
and any person in control of a major business line. In accordance with 
the FDIC's objective to include those individuals within an FDIC-
supervised institution with the greatest responsibility for the 
organization's financial condition and risk exposure, the interim final 
rule maintains the definition of executive officer as proposed.
---------------------------------------------------------------------------

    \33\ See 12 CFR part 215.
---------------------------------------------------------------------------

    Under the proposal, advanced approaches banking organizations would 
have calculated their capital conservation buffer (and any applicable 
countercyclical capital buffer amount) using their advanced approaches 
total risk-weighted assets. Several commenters supported this aspect of 
the proposal, and one stated that the methodologies for calculating 
risk-weighted assets under the advanced approaches rule would more 
effectively capture the individual risk profiles of such banking 
organizations, asserting further that advanced approaches banking 
organizations would face a competitive disadvantage relative to foreign 
banking organizations if they were required to use standardized total 
risk-weighted assets to determine compliance with the capital 
conservation buffer. In contrast, another commenter suggested that 
advanced approaches banking organizations be allowed to use the 
advanced approaches methodologies as the basis for calculating the 
capital conservation buffer only when it would result in a more 
conservative outcome than under the standardized approach in order to 
maintain competitive equity domestically. Another commenter expressed 
concerns that the capital conservation buffer is based only on risk-
weighted assets and recommended additional application of a capital 
conservation buffer to the leverage ratio to avoid regulatory arbitrage 
opportunities and to accomplish the agencies' stated objective of 
ensuring that banking organizations have sufficient capital to absorb 
losses.
    The interim final rule requires that advanced approaches FDIC-
supervised institutions that have completed the parallel run process 
and that have received notification from the FDIC supervisor pursuant 
to section 121(d) of subpart E use their risk-based capital ratios 
under section 10 of the interim final rule (that is, the lesser of the 
standardized and the advanced approaches ratios) as the basis for 
calculating their capital conservation buffer (and any applicable 
countercyclical capital buffer). The FDIC believes such an approach is 
appropriate because it is consistent with how advanced approaches FDIC-
supervised institutions compute their minimum risk-based capital 
ratios.
    Many commenters discussed the interplay between the proposed 
capital conservation buffer and the PCA framework. Some commenters 
encouraged the agencies to reset the buffer requirement to two percent 
of total risk-weighted assets in order to align it with the margin 
between the ``adequately-capitalized'' category and the ``well-
capitalized'' category under the PCA framework. Similarly, some 
commenters characterized the proposal as confusing because a banking 
organization could be considered well capitalized for PCA purposes, but 
at the same time fail to maintain a sufficient capital conservation 
buffer and be subject to restrictions on capital distributions and 
discretionary bonus payments. These commenters encouraged the agencies 
to remove the capital conservation buffer for purposes of the interim 
final rule, and instead use their existing authority to impose 
restrictions on dividends and discretionary bonus payments on a case-
by-case basis through formal enforcement actions. Several commenters 
stated that compliance with a capital conservation buffer that operates 
outside the traditional PCA framework adds complexity to the interim 
final rule, and suggested increasing minimum capital requirements if 
the agencies determine they are currently insufficient. Specifically, 
one commenter encouraged the agencies to increase the minimum total 
risk-based capital requirement to 10.5 percent and remove the capital 
conservation buffer from the rule.
    The capital conservation buffer has been designed to give banking 
organizations the flexibility to use the buffer while still being well 
capitalized. Banking organizations that maintain their risk-based 
capital ratios at least 50 basis points above the well capitalized PCA 
levels will not be subject to any restrictions imposed by the capital 
conservation buffer, as applicable. As losses begin to accrue or a 
banking organization's risk-weighted assets begin to grow such that the 
capital ratios of a banking organization are below the capital 
conservation buffer but above the well capitalized thresholds, the 
incremental limitations on distributions are unlikely to affect planned 
capital distributions or discretionary bonus payments but may provide a 
check on rapid expansion or other activities that

[[Page 55357]]

would weaken the organization's capital position.
    Under the interim final rule, the maximum payout ratio is the 
percentage of eligible retained income that an FDIC-supervised 
institution is allowed to pay out in the form of distributions and 
discretionary bonus payments, each as defined under the rule, during 
the current calendar quarter. The maximum payout ratio is determined by 
the FDIC-supervised institution's capital conservation buffer as 
calculated as of the last day of the previous calendar quarter.
    An FDIC-supervised institution's capital conservation buffer is the 
lowest of the following ratios: (i) The FDIC-supervised institution's 
common equity tier 1 capital ratio minus its minimum common equity tier 
1 capital ratio; (ii) the FDIC-supervised institution's tier 1 capital 
ratio minus its minimum tier 1 capital ratio; and (iii) the FDIC-
supervised institution's total capital ratio minus its minimum total 
capital ratio. If the FDIC-supervised institution's common equity tier 
1, tier 1 or total capital ratio is less than or equal to its minimum 
common equity tier 1, tier 1 or total capital ratio, respectively, the 
FDIC-supervised institution's capital conservation buffer is zero.
    The mechanics of the capital conservation buffer under the interim 
final rule are unchanged from the proposal. An FDIC-supervised 
institution's maximum payout amount for the current calendar quarter is 
equal to the FDIC-supervised institution's eligible retained income, 
multiplied by the applicable maximum payout ratio, in accordance with 
Table 1. An FDIC-supervised institution with a capital conservation 
buffer that is greater than 2.5 percent (plus, for an advanced 
approaches FDIC-supervised institution, 100 percent of any applicable 
countercyclical capital buffer) is not subject to a maximum payout 
amount as a result of the application of this provision. However, an 
FDIC-supervised institution may otherwise be subject to limitations on 
capital distributions as a result of supervisory actions or other laws 
or regulations.\34\
---------------------------------------------------------------------------

    \34\ See, e.g., 1831o(d)(1), 12 CFR 303.241, and 12 CFR part 
324, Subpart H (state nonmember banks and state savings associations 
as of January 1, 2014 for advanced approaches banks and as of 
January 1, 2015 for all other organizations).
---------------------------------------------------------------------------

    Table 1 illustrates the relationship between the capital 
conservation buffer and the maximum payout ratio. The maximum dollar 
amount that an FDIC-supervised institution is permitted to pay out in 
the form of distributions or discretionary bonus payments during the 
current calendar quarter is equal to the maximum payout ratio 
multiplied by the FDIC-supervised institution's eligible retained 
income. The calculation of the maximum payout amount is made as of the 
last day of the previous calendar quarter and any resulting 
restrictions apply during the current calendar quarter.

   Table 1--Capital Conservation Buffer and Maximum Payout Ratio \35\
------------------------------------------------------------------------
     Capital conservation buffer (as a       Maximum payout ratio (as a
  percentage of standardized or advanced       percentage of eligible
total risk-weighted assets, as applicable)        retained income)
------------------------------------------------------------------------
Greater than 2.5 percent..................  No payout ratio limitation
                                             applies.
Less than or equal to 2.5 percent, and      60 percent.
 greater than 1.875 percent.
Less than or equal to 1.875 percent, and    40 percent.
 greater than 1.25 percent.
Less than or equal to 1.25 percent, and     20 percent.
 greater than 0.625 percent.
Less than or equal to 0.625 percent.......  0 percent.
------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \35\ Calculations in this table are based on the assumption that 
the countercyclical capital buffer amount is zero.
---------------------------------------------------------------------------

    Table 1 illustrates that the capital conservation buffer 
requirements are divided into equal quartiles, each associated with 
increasingly stringent limitations on distributions and discretionary 
bonus payments to executive officers as the capital conservation buffer 
approaches zero. As described in the next section, each quartile 
expands proportionately for advanced approaches FDIC-supervised 
institutions when the countercyclical capital buffer amount is greater 
than zero. In a scenario where an FDIC-supervised institution's risk-
based capital ratios fall below its minimum risk-based capital ratios 
plus 2.5 percent of total risk-weighted assets, the maximum payout 
ratio also would decline. An FDIC-supervised institution that becomes 
subject to a maximum payout ratio remains subject to restrictions on 
capital distributions and certain discretionary bonus payments until it 
is able to build up its capital conservation buffer through retained 
earnings, raising additional capital, or reducing its risk-weighted 
assets. In addition, as a general matter, an FDIC-supervised 
institution cannot make distributions or certain discretionary bonus 
payments during the current calendar quarter if the FDIC-supervised 
institution's eligible retained income is negative and its capital 
conservation buffer was less than 2.5 percent as of the end of the 
previous quarter.
    Compliance with the capital conservation buffer is determined prior 
to any distribution or discretionary bonus payment. Therefore, an FDIC-
supervised institution with a capital buffer of more than 2.5 percent 
is not subject to any restrictions on distributions or discretionary 
bonus payments even if such distribution or payment would result in a 
capital buffer of less than or equal to 2.5 percent in the current 
calendar quarter. However, to remain free of restrictions for purposes 
of any subsequent quarter, the FDIC-supervised institution must restore 
capital to increase the buffer to more than 2.5 percent prior to any 
distribution or discretionary bonus payment in any subsequent quarter.
    In the proposal, the agencies solicited comment on the impact, if 
any, of prohibiting a banking organization that is subject to a maximum 
payout ratio of zero percent from making a penny dividend to common 
stockholders. One commenter stated that such banking organizations 
should be permitted to pay a penny dividend on their common stock 
notwithstanding the limitations imposed by the capital conservation 
buffer. This commenter maintained that the inability to pay any 
dividend on common stock could make it more difficult to attract equity 
investors such as pension funds that often are required to invest only 
in institutions that pay a quarterly dividend. While the FDIC did not 
incorporate a blanket exemption for penny dividends on common stock, 
under the interim final rule, as under the proposal, it may permit an 
FDIC-supervised institution to make a distribution or discretionary 
bonus payment if it determines that such distribution or payment would 
not be contrary to the purpose of the capital conservation buffer or 
the safety and soundness of the organization. In making such 
determinations, the FDIC would consider the nature of and circumstances 
giving rise to the request.

E. Countercyclical Capital Buffer

    The proposed rule introduced a countercyclical capital buffer 
applicable to advanced approaches banking organizations to augment the 
capital conservation buffer during periods of excessive credit growth. 
Under the proposed rule, the countercyclical capital buffer would have 
required advanced approaches banking

[[Page 55358]]

organizations to hold additional common equity tier 1 capital during 
specific, agency-determined periods in order to avoid limitations on 
distributions and discretionary bonus payments. The agencies requested 
comment on the countercyclical capital buffer and, specifically, on any 
factors that should be considered for purposes of determining whether 
to activate it. One commenter encouraged the agencies to consider 
readily available indicators of economic growth, employment levels, and 
financial sector profits. This commenter stated generally that the 
agencies should activate the countercyclical capital buffer during 
periods of general economic growth or high financial sector profits, 
instead of reserving it only for periods of ``excessive credit 
growth.''
    Other commenters did not support using the countercyclical capital 
buffer as a macroeconomic tool. One commenter encouraged the agencies 
not to include the countercyclical capital buffer in the interim final 
rule and, instead, rely on the Federal Reserve's longstanding authority 
over monetary policy to mitigate excessive credit growth and potential 
asset bubbles. Another commenter questioned the buffer's effectiveness 
and encouraged the agencies to conduct a QIS prior to its 
implementation. One commenter recommended expanding the applicability 
of the proposed countercyclical capital buffer on a case-by-case basis 
to institutions with total consolidated assets between $50 and $250 
billion. Another commenter, however, supported the application of the 
countercyclical capital buffer only to institutions with total 
consolidated assets above $250 billion.
    The Dodd-Frank Act requires the agencies to consider the use of 
countercyclical aspects of capital regulation, and the countercyclical 
capital buffer is an explicitly countercyclical element of capital 
regulation.\36\ The FDIC notes that implementation of the 
countercyclical capital buffer for advanced approaches FDIC-supervised 
institutions is an important part of the Basel III framework, which 
aims to enhance the resilience of the banking system and reduce 
systemic vulnerabilities. The FDIC believes that the countercyclical 
capital buffer is most appropriately applied only to advanced 
approaches FDIC-supervised institutions because, generally, such 
organizations are more interconnected with other financial 
institutions. Therefore, the marginal benefits to financial stability 
from a countercyclical capital buffer function should be greater with 
respect to such institutions. Application of the countercyclical 
capital buffer only to advanced approaches FDIC-supervised institutions 
also reflects the fact that making cyclical adjustments to capital 
requirements may produce smaller financial stability benefits and 
potentially higher marginal costs for smaller FDIC-supervised 
institutions. The countercyclical capital buffer is designed to take 
into account the macro-financial environment in which FDIC-supervised 
institutions function and to protect the banking system from the 
systemic vulnerabilities that may build-up during periods of excessive 
credit growth, which may potentially unwind in a disorderly way, 
causing disruptions to financial institutions and ultimately economic 
activity.
---------------------------------------------------------------------------

    \36\ Section 616(a), (b), and (c) of the Dodd-Frank Act, 
codified at 12 U.S.C. 1844(b), 1464a(g)(1), and 3907(a)(1).
    .
---------------------------------------------------------------------------

    The countercyclical capital buffer aims to protect the banking 
system and reduce systemic vulnerabilities in two ways. First, the 
accumulation of a capital buffer during an expansionary phase could 
increase the resilience of the banking system to declines in asset 
prices and consequent losses that may occur when the credit conditions 
weaken. Specifically, when the credit cycle turns following a period of 
excessive credit growth, accumulated capital buffers act to absorb the 
above-normal losses that an FDIC-supervised institution likely would 
face. Consequently, even after these losses are realized, FDIC-
supervised institutions would remain healthy and able to access 
funding, meet obligations, and continue to serve as credit 
intermediaries. Second, a countercyclical capital buffer also may 
reduce systemic vulnerabilities and protect the banking system by 
mitigating excessive credit growth and increases in asset prices that 
are not supported by fundamental factors. By increasing the amount of 
capital required for further credit extensions, a countercyclical 
capital buffer may limit excessive credit.\37\ Thus, the FDIC believes 
that the countercyclical capital buffer is an appropriate macroeconomic 
tool and is including it in the interim final rule. One commenter 
expressed concern that the proposed rule would not require the agencies 
to activate the countercyclical capital buffer pursuant to a joint, 
interagency determination. This commenter encouraged the agencies to 
adopt an interagency process for activating the buffer for purposes of 
the interim final rule. As discussed in the Basel III NPR, the agencies 
anticipate making such determinations jointly. Because the 
countercyclical capital buffer amount would be linked to the condition 
of the overall U.S. financial system and not the characteristics of an 
individual banking organization, the agencies expect that the 
countercyclical capital buffer amount would be the same at the 
depository institution and holding company levels. The agencies 
solicited comment on the appropriateness of the proposed 12-month prior 
notification period for the countercyclical capital buffer amount. One 
commenter expressed concern regarding the potential for the agencies to 
activate the countercyclical capital buffer without providing banking 
organizations sufficient notice, and specifically requested the 
implementation of a prior notification requirement of not less than 12 
months for purposes of the interim final rule.
---------------------------------------------------------------------------

    \37\ The operation of the countercyclical capital buffer is also 
consistent with sections 616(a), (b), and (c) of the Dodd-Frank Act, 
codified at 12 U.S.C. 1844(b), 1464a(g)(1), and 3907(a)(1).
---------------------------------------------------------------------------

    In general, to provide banking organizations with sufficient time 
to adjust to any changes to the countercyclical capital buffer under 
the interim final rule, the agencies expect to announce an increase in 
the U.S. countercyclical capital buffer amount with an effective date 
at least 12 months after their announcement. However, if the agencies 
determine that a more immediate implementation is necessary based on 
economic conditions, the agencies may require an earlier effective 
date. The agencies will follow the same procedures in adjusting the 
countercyclical capital buffer applicable for exposures located in 
foreign jurisdictions.
    For purposes of the interim final rule, consistent with the 
proposal, a decrease in the countercyclical capital buffer amount will 
be effective on the day following announcement of the final 
determination or the earliest date permissible under applicable law or 
regulation, whichever is later. In addition, the countercyclical 
capital buffer amount will return to zero percent 12 months after its 
effective date, unless the agencies announce a decision to maintain the 
adjusted countercyclical capital buffer amount or adjust it again 
before the expiration of the 12-month period.
    The countercyclical capital buffer augments the capital 
conservation buffer by up to 2.5 percent of an FDIC-supervised 
institution's total risk-weighted assets. Consistent with the proposal, 
the interim final rule requires an advanced approaches FDIC-

[[Page 55359]]

supervised institution to determine its countercyclical capital buffer 
amount by calculating the weighted average of the countercyclical 
capital buffer amounts established for the national jurisdictions where 
the FDIC-supervised institution has private sector credit exposures. 
The contributing weight assigned to a jurisdiction's countercyclical 
capital buffer amount is calculated by dividing the total risk-weighted 
assets for the FDIC-supervised institution's private sector credit 
exposures located in the jurisdiction by the total risk-weighted assets 
for all of the FDIC-supervised institution's private sector credit 
exposures.
    Under the proposed rule, private sector credit exposure was defined 
as an exposure to a company or an individual that is included in credit 
risk-weighted assets, not including an exposure to a sovereign entity, 
the Bank for International Settlements, the European Central Bank, the 
European Commission, the International Monetary Fund, a multilateral 
development bank (MDB), a public sector entity (PSE), or a Government-
sponsored Enterprise (GSE). While the proposed definition excluded 
covered positions with specific risk under the market risk rule, the 
agencies explicitly recognized that they should be included in the 
measure of risk-weighted assets for private-sector exposures and asked 
a question regarding how to incorporate these positions in the measure 
of risk-weighted assets, particularly for positions for which an FDIC-
supervised institution uses models to measure specific risk. The 
agencies did not receive comments on this question.
    The interim final rule includes covered positions under the market 
risk rule in the definition of private sector credit exposure. Thus, a 
private sector credit exposure is an exposure to a company or an 
individual, not including an exposure to a sovereign entity, the Bank 
for International Settlements, the European Central Bank, the European 
Commission, the International Monetary Fund, an MDB, a PSE, or a GSE. 
The interim final rule is also more specific than the proposal 
regarding how to calculate risk-weighted assets for private sector 
credit exposures, and harmonizes that calculation with the advanced 
approaches FDIC-supervised institution's determination of its capital 
conservation buffer generally. An advanced approaches FDIC-supervised 
institution is subject to the countercyclical capital buffer regardless 
of whether it has completed the parallel run process and received 
notification from the FDIC pursuant to section 121(d) of the rule. The 
methodology an advanced approaches FDIC-supervised institution must use 
for determining risk-weighted assets for private sector credit 
exposures must be the methodology that the FDIC-supervised institution 
uses to determine its risk-based capital ratios under section 10 of the 
interim final rule. Notwithstanding this provision, the risk-weighted 
asset amount for a private sector credit exposure that is a covered 
position is its specific risk add-on, as determined under the market 
risk rule's standardized measurement method for specific risk, 
multiplied by 12.5. The FDIC chose this methodology because it allows 
the specific risk of a position to be allocated to the position's 
geographic location in a consistent manner across FDIC-supervised 
institutions.
    Consistent with the proposal, under the interim final rule the 
geographic location of a private sector credit exposure (that is not a 
securitization exposure) is the national jurisdiction where the 
borrower is located (that is, where the borrower is incorporated, 
chartered, or similarly established or, if it is an individual, where 
the borrower resides). If, however, the decision to issue the private 
sector credit exposure is based primarily on the creditworthiness of a 
protection provider, the location of the non-securitization exposure is 
the location of the protection provider. The location of a 
securitization exposure is the location of the underlying exposures, 
determined by reference to the location of the borrowers on those 
exposures. If the underlying exposures are located in more than one 
national jurisdiction, the location of a securitization exposure is the 
national jurisdiction where the underlying exposures with the largest 
aggregate unpaid principal balance are located.
    Table 2 illustrates how an advanced approaches FDIC-supervised 
institution calculates its weighted average countercyclical capital 
buffer amount. In the following example, the countercyclical capital 
buffer established in the various jurisdictions in which the FDIC-
supervised institution has private sector credit exposures is reported 
in column A. Column B contains the FDIC-supervised institution's risk-
weighted asset amounts for the private sector credit exposures in each 
jurisdiction. Column C shows the contributing weight for each 
countercyclical capital buffer amount, which is calculated by dividing 
each of the rows in column B by the total for column B. Column D shows 
the contributing weight applied to each countercyclical capital buffer 
amount, calculated as the product of the corresponding contributing 
weight (column C) and the countercyclical capital buffer set by each 
jurisdiction's national supervisor (column A). The sum of the rows in 
column D shows the FDIC-supervised institution's weighted average 
countercyclical capital buffer, which is 1.4 percent of risk-weighted 
assets.

 Table 2--Example of Weighted Average Buffer Calculation for an Advanced Approaches FDIC-Supervised Institution
----------------------------------------------------------------------------------------------------------------
                                                                    (B) FDIC-
                                                      (A)          supervised                          (D)
                                                Countercyclical   institution's        (C)         Contributing
                                                 capital buffer   risk-weighted   Contributing    weight applied
                                                 amount set by     assets for        weight          to each
                                                    national     private sector    (column B/    countercyclical
                                                   supervisor        credit         column B      capital buffer
                                                   (percent)        exposures        total)      amount  (column
                                                                      ($b)                        A * column C)
----------------------------------------------------------------------------------------------------------------
Non-U.S. jurisdiction 1.......................              2.0             250            0.29              0.6
Non-U.S. jurisdiction 2.......................              1.5             100            0.12              0.2
U.S...........................................              1               500            0.59              0.6
                                               -----------------------------------------------------------------
    Total.....................................  ...............             850            1.00              1.4
----------------------------------------------------------------------------------------------------------------


[[Page 55360]]

    The countercyclical capital buffer expands an FDIC-supervised 
institution's capital conservation buffer range for purposes of 
determining the FDIC-supervised institution's maximum payout ratio. For 
instance, if an advanced approaches FDIC-supervised institution's 
countercyclical capital buffer amount is equal to zero percent of total 
risk-weighted assets, the FDIC-supervised institution must maintain a 
buffer of greater than 2.5 percent of total risk-weighted assets to 
avoid restrictions on its distributions and discretionary bonus 
payments. However, if its countercyclical capital buffer amount is 
equal to 2.5 percent of total risk-weighted assets, the FDIC-supervised 
institution must maintain a buffer of greater than 5 percent of total 
risk-weighted assets to avoid restrictions on its distributions and 
discretionary bonus payments.
    As another example, if the advanced approaches FDIC-supervised 
institution from the example in Table 2 above has a capital 
conservation buffer of 2.0 percent, and each of the jurisdictions in 
which it has private sector credit exposures sets its countercyclical 
capital buffer amount equal to zero, the FDIC-supervised institution 
would be subject to a maximum payout ratio of 60 percent. If, instead, 
each country sets its countercyclical capital buffer amount as shown in 
Table 2, resulting in a countercyclical capital buffer amount of 1.4 
percent of total risk-weighted assets, the FDIC-supervised 
institution's capital conservation buffer ranges would be expanded as 
shown in Table 3 below. As a result, the FDIC-supervised institution 
would now be subject to a stricter 40 percent maximum payout ratio 
based on its capital conservation buffer of 2.0 percent.

   Table 3--Capital Conservation Buffer and Maximum Payout Ratio \38\
------------------------------------------------------------------------
Capital conservation buffer as expanded by   Maximum payout ratio (as a
 the countercyclical capital buffer amount     percentage of eligible
               from Table 2                       retained income)
------------------------------------------------------------------------
Greater than 3.9 percent (2.5 percent +     No payout ratio limitation
 100 percent of the countercyclical          applies.
 capital buffer of 1.4).
Less than or equal to 3.9 percent, and      60 percent.
 greater than 2.925 percent (1.875 percent
 plus 75 percent of the countercyclical
 capital buffer of 1.4).
Less than or equal to 2.925 percent, and    40 percent.
 greater than 1.95 percent (1.25 percent
 plus 50 percent of the countercyclical
 capital buffer of 1.4).
Less than or equal to 1.95 percent, and     20 percent.
 greater than 0.975 percent (.625 percent
 plus 25 percent of the countercyclical
 capital buffer of 1.4).
Less than or equal to 0.975 percent.......  0 percent.
------------------------------------------------------------------------

    The countercyclical capital buffer amount under the interim final 
rule for U.S. credit exposures is initially set to zero, but it could 
increase if the agencies determine that there is excessive credit in 
the markets that could lead to subsequent wide-spread market failures. 
Generally, a zero percent countercyclical capital buffer amount will 
reflect an assessment that economic and financial conditions are 
consistent with a period of little or no excessive ease in credit 
markets associated with no material increase in system-wide credit 
risk. A 2.5 percent countercyclical capital buffer amount will reflect 
an assessment that financial markets are experiencing a period of 
excessive ease in credit markets associated with a material increase in 
system-wide credit risk.
---------------------------------------------------------------------------

    \38\ Calculations in this table are based on the assumption that 
the countercyclical capital buffer amount is 1.4 percent of risk-
weighted assets, per the example in Table 2.
---------------------------------------------------------------------------

F. Prompt Corrective Action Requirements

    All insured depository institutions, regardless of total asset size 
or foreign exposure, currently are required to compute PCA capital 
levels using the agencies' general risk-based capital rules, as 
supplemented by the market risk rule. Section 38 of the Federal Deposit 
Insurance Act directs the federal banking agencies to resolve the 
problems of insured depository institutions at the least cost to the 
Deposit Insurance Fund.\39\ To facilitate this purpose, the agencies 
have established five regulatory capital categories in the PCA 
regulations that include capital thresholds for the leverage ratio, 
tier 1 risk-based capital ratio, and the total risk-based capital ratio 
for insured depository institutions. These five PCA categories under 
section 38 of the Act and the PCA regulations are: ``well 
capitalized,'' ``adequately capitalized,'' ``undercapitalized,'' 
``significantly undercapitalized,'' and ``critically 
undercapitalized.'' Insured depository institutions that fail to meet 
these capital measures are subject to increasingly strict limits on 
their activities, including their ability to make capital 
distributions, pay management fees, grow their balance sheet, and take 
other actions.\40\ Insured depository institutions are expected to be 
closed within 90 days of becoming ``critically undercapitalized,'' 
unless their primary Federal supervisor takes such other action as that 
primary Federal supervisor determines, with the concurrence of the 
FDIC, would better achieve the purpose of PCA.\41\
---------------------------------------------------------------------------

    \39\ 12 U.S.C. 1831o.
    \40\ 12 U.S.C. 1831o(e)-(i). See 12 CFR part 325, subpart B.
    \41\ 12 U.S.C. 1831o(g)(3).
---------------------------------------------------------------------------

    The proposal maintained the structure of the PCA framework while 
increasing some of the thresholds for the PCA capital categories and 
adding the proposed common equity tier 1 capital ratio. For example, 
under the proposed rule, the thresholds for adequately capitalized 
FDIC-supervised institutions would be equal to the minimum capital 
requirements. The risk-based capital ratios for well capitalized FDIC-
supervised institutions under PCA would continue to be two percentage 
points higher than the ratios for adequately-capitalized FDIC-
supervised institutions, and the leverage ratio for well capitalized 
FDIC-supervised institutions under PCA would be one percentage point 
higher than for adequately-capitalized FDIC-supervised institutions. 
Advanced approaches FDIC-supervised institutions that are insured 
depository institutions also would be required to satisfy a 
supplementary leverage ratio of 3 percent in order to be considered 
adequately capitalized. While the proposed PCA levels do not 
incorporate the capital conservation buffer, the PCA and capital 
conservation buffer frameworks would complement each other to ensure 
that FDIC-supervised institutions hold an adequate amount of common 
equity tier 1 capital.
    The agencies received a number of comments on the proposed PCA 
framework. Several commenters suggested modifications to the proposed 
PCA levels, particularly with respect to the leverage ratio. For 
example, a few commenters encouraged the agencies to

[[Page 55361]]

increase the adequately-capitalized and well capitalized categories for 
the leverage ratio to six percent or more and eight percent or more, 
respectively. According to one commenter, such thresholds would more 
closely align with the actual leverage ratios of many state-charted 
depository institutions.
    Another commenter expressed concern regarding the operational 
complexity of the proposed PCA framework in view of the addition of the 
common equity tier 1 capital ratio and the interaction of the PCA 
framework and the capital conservation buffer. For example, under the 
proposed rule a banking organization could be well capitalized for PCA 
purposes and, at the same time, be subject to restrictions on dividends 
and bonus payments. Other banking organizations expressed concern that 
the proposed PCA levels would adversely affect their ability to lend 
and generate income. This, according to a commenter, also would reduce 
net income and return-on-equity.
    The FDIC believes the capital conservation buffer complements the 
PCA framework--the former works to keep FDIC-supervised institutions 
above the minimum capital ratios, whereas the latter imposes 
increasingly stringent consequences on depository institutions, 
particularly as they fall below the minimum capital ratios. Because the 
capital conservation buffer is designed to absorb losses in stressful 
periods, the FDIC believes it is appropriate for a depository 
institution to be able to use some of its capital conservation buffer 
without being considered less than well capitalized for PCA purposes.
    Consistent with the proposal, the interim final rule augments the 
PCA capital categories by introducing a common equity tier 1 capital 
measure for four of the five PCA categories (excluding the critically 
undercapitalized PCA category).\42\ In addition, the interim final rule 
revises the three current risk-based capital measures for four of the 
five PCA categories to reflect the interim final rule's changes to the 
minimum risk-based capital ratios, as provided in revisions to the 
FDIC's PCA regulations. All FDIC-supervised institutions will remain 
subject to leverage measure thresholds using the current leverage ratio 
in the form of tier 1 capital to average total consolidated assets. In 
addition, the interim final rule amends the PCA leverage measure for 
advanced approaches depository institutions to include the 
supplementary leverage ratio that explicitly applies to the 
``adequately capitalized'' and ``undercapitalized'' capital categories.
---------------------------------------------------------------------------

    \42\ 12 U.S.C. 1831o(c)(1)(B)(i).
---------------------------------------------------------------------------

    All insured depository institutions must comply with the revised 
PCA thresholds beginning on January 1, 2015. Consistent with transition 
provisions in the proposed rules, the supplementary leverage measure 
for advanced approaches FDIC-supervised institutions that are insured 
depository institutions becomes effective on January 1, 2018. Changes 
to the definitions of the individual capital components that are used 
to calculate the relevant capital measures under PCA are governed by 
the transition arrangements discussed in section VIII.3 below. Thus, 
the changes to these definitions, including any deductions from or 
adjustments to regulatory capital, automatically flow through to the 
definitions in the PCA framework.
    Table 4 sets forth the risk-based capital and leverage ratio 
thresholds under the interim final rule for each of the PCA capital 
categories for all insured depository institutions. For each PCA 
category except critically undercapitalized, an insured depository 
institution must satisfy a minimum common equity tier 1 capital ratio, 
in addition to a minimum tier 1 risk-based capital ratio, total risk-
based capital ratio, and leverage ratio. In addition to the 
aforementioned requirements, advanced approaches FDIC-supervised 
institutions that are insured depository institutions are also subject 
to a supplementary leverage ratio.

                                               Table 4--PCA Levels for All Insured Depository Institutions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Common equity tier             Leverage measure
                                   Total risk-based   Tier 1 RBC measure     1 RBC measure   ----------------------------------------
          PCA category               Capital (RBC)    (tier 1 RBC ratio)    (common equity                           Supplementary     PCA requirements
                                  measure (total RBC       (percent)       tier 1 RBC ratio)    Leverage ratio      leverage ratio
                                   ratio) (percent)                            (percent)           (percent)          (percent)*
--------------------------------------------------------------------------------------------------------------------------------------------------------
Well capitalized................  >=10..............  >=8...............  >=6.5.............  >=5...............  Not applicable....  Unchanged from
                                                                                                                                       current rule.*
Adequately-capitalized..........  >=8...............  >=6...............  >=4.5.............  >=4...............  >3.0..............  (*).
Undercapitalized................  <8................  <6................  <4.5..............  <4................  <3.00.............  (*).
Significantly undercapitalized..  <6................  <4................  <3................  <3................  Not applicable....  (*).
                                 --------------------------------------------------------------------------------
Critically undercapitalized.....  Tangible Equity (defined as tier 1 capital plus non-tier 1 perpetual preferred  Not applicable....  (*).
                                                             stock) to Total Assets <=2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The supplementary leverage ratio as a PCA requirement applies only to advanced approaches FDIC-supervised institutions that are insured depository
  institutions. The supplementary leverage ratio also applies to advanced approaches bank holding companies, although not in the form of a PCA
  requirement.

    To be well capitalized for purposes of the interim final rule, an 
insured depository institution must maintain a total risk-based capital 
ratio of 10 percent or more; a tier 1 capital ratio of 8 percent or 
more; a common equity tier 1 capital ratio of 6.5 percent or more; and 
a leverage ratio of 5 percent or more. An adequately-capitalized 
depository institution must maintain a total risk-based capital ratio 
of 8 percent or more; a tier 1 capital ratio of 6 percent or more; a 
common equity tier 1 capital ratio of 4.5 percent or more; and a 
leverage ratio of 4 percent or more.
    An insured depository institution is undercapitalized under the 
interim final rule if its total capital ratio is less than 8 percent, 
if its tier 1 capital ratio is less than 6 percent, its common equity 
tier

[[Page 55362]]

1 capital ratio is less than 4.5 percent, or its leverage ratio is less 
than 4 percent. If an institution's tier 1 capital ratio is less than 4 
percent, or its common equity tier 1 capital ratio is less than 3 
percent, it would be considered significantly undercapitalized. The 
other numerical capital ratio thresholds for being significantly 
undercapitalized remain unchanged from the current rules.\43\
---------------------------------------------------------------------------

    \43\ Under current PCA standards, in order to qualify as well-
capitalized, an insured depository institution must not be subject 
to any written agreement, order, capital directive, or prompt 
corrective action directive issued by its primary Federal regulator 
pursuant to section 8 of the Federal Deposit Insurance Act, the 
International Lending Supervision Act of 1983, or section 38 of the 
Federal Deposit Insurance Act, or any regulation thereunder. See 12 
CFR 325.103(b)(1)(iv) (state nonmember banks) and 12 CFR 
390.453(b)(1)(iv) (state savings associations). The interim final 
rule does not change this requirement.
---------------------------------------------------------------------------

    The determination of whether an insured depository institution is 
critically undercapitalized for PCA purposes is based on its ratio of 
tangible equity to total assets.\44\ This is a statutory requirement 
within the PCA framework, and the experience of the recent financial 
crisis has confirmed that tangible equity is of critical importance in 
assessing the viability of an insured depository institution. Tangible 
equity for PCA purposes is currently defined as including core capital 
elements, which consist of: (1) common stockholder's equity, (2) 
qualifying noncumulative perpetual preferred stock (including related 
surplus), and (3) minority interest in the equity accounts of 
consolidated subsidiaries; plus outstanding cumulative preferred 
perpetual stock; minus all intangible assets except mortgage servicing 
rights to the extent permitted in tier 1 capital. The current PCA 
definition of tangible equity does not address the treatment of DTAs in 
determining whether an insured depository institution is critically 
undercapitalized.
---------------------------------------------------------------------------

    \44\ See 12 U.S.C. 1831o(c)(3)(A) and (B), which for purposes of 
the ``critically undercapitalized'' PCA category requires the ratio 
of tangible equity to total assets to be set at an amount ``not less 
than 2 percent of total assets''.
---------------------------------------------------------------------------

    Consistent with the proposal, the interim final rule revises the 
calculation of the capital measure for the critically undercapitalized 
PCA category by revising the definition of tangible equity to consist 
of tier 1 capital, plus outstanding perpetual preferred stock 
(including related surplus) not included in tier 1 capital. The revised 
definition more appropriately aligns the calculation of tangible equity 
with the calculation of tier 1 capital generally for regulatory capital 
requirements. Assets included in an FDIC-supervised institution's 
equity under GAAP, such as DTAs, are included in tangible equity only 
to the extent that they are included in tier 1 capital. The FDIC 
believes this modification promotes consistency and provides for 
clearer boundaries across and between the various PCA categories.

G. Supervisory Assessment of Overall Capital Adequacy

    Capital helps to ensure that individual banking organizations can 
continue to serve as credit intermediaries even during times of stress, 
thereby promoting the safety and soundness of the overall U.S. banking 
system. The FDIC's general risk-based capital rules indicate that the 
capital requirements are minimum standards generally based on broad 
credit-risk considerations.\45\ The risk-based capital ratios under 
these rules do not explicitly take account of the quality of individual 
asset portfolios or the range of other types of risk to which FDIC-
supervised institutions may be exposed, such as interest-rate, 
liquidity, market, or operational risks.\46\
---------------------------------------------------------------------------

    \45\ See 12 CFR 325.3(a) (state nonmember banks) and 12 CFR 
390.463 (state savings associations).
    \46\ The risk-based capital ratios of an FDIC-supervised 
institution subject to the market risk rule do include capital 
requirements for the market risk of covered positions, and the risk-
based capital ratios calculated using advanced approaches total 
risk-weighted assets for an advanced approaches FDIC-supervised 
institution that has completed the parallel run process and received 
notification from the FDIC pursuant to section 324.121(d) do include 
a capital requirement for operational risks.
---------------------------------------------------------------------------

    An FDIC-supervised institution is generally expected to have 
internal processes for assessing capital adequacy that reflect a full 
understanding of its risks and to ensure that it holds capital 
corresponding to those risks to maintain overall capital adequacy.\47\ 
The nature of such capital adequacy assessments should be commensurate 
with FDIC-supervised institutions' size, complexity, and risk-profile. 
Consistent with longstanding practice, supervisory assessment of 
capital adequacy will take account of whether an FDIC-supervised 
institution plans appropriately to maintain an adequate level of 
capital given its activities and risk profile, as well as risks and 
other factors that can affect an FDIC-supervised institution's 
financial condition, including, for example, the level and severity of 
problem assets and its exposure to operational and interest rate risk, 
and significant asset concentrations. For this reason, a supervisory 
assessment of capital adequacy may differ significantly from 
conclusions that might be drawn solely from the level of an FDIC-
supervised institution's regulatory capital ratios.
---------------------------------------------------------------------------

    \47\ The Basel framework incorporates similar requirements under 
Pillar 2 of Basel II.
---------------------------------------------------------------------------

    In light of these considerations, as a prudential matter, an FDIC-
supervised institution is generally expected to operate with capital 
positions well above the minimum risk-based ratios and to hold capital 
commensurate with the level and nature of the risks to which it is 
exposed, which may entail holding capital significantly above the 
minimum requirements. For example, FDIC-supervised institutions 
contemplating significant expansion proposals are expected to maintain 
strong capital levels substantially above the minimum ratios and should 
not allow significant diminution of financial strength below these 
strong levels to fund their expansion plans. FDIC-supervised 
institutions with high levels of risk are also expected to operate even 
further above minimum standards. In addition to evaluating the 
appropriateness of an FDIC-supervised institution's capital level given 
its overall risk profile, the supervisory assessment takes into account 
the quality and trends in an FDIC-supervised institution's capital 
composition, including the share of common and non-common-equity 
capital elements.
    Some commenters stated that they manage their capital so that they 
operate with a buffer over the minimum and that examiners expect such a 
buffer. These commenters expressed concern that examiners will expect 
even higher capital levels, such as a buffer in addition to the new 
higher minimums and capital conservation buffer (and countercyclical 
capital buffer, if applicable). Consistent with the longstanding 
approach employed by the FDIC in its supervision of FDIC-supervised 
institutions, section 10(d) of the interim final rule maintains and 
reinforces supervisory expectations by requiring that an FDIC-
supervised institution maintain capital commensurate with the level and 
nature of all risks to which it is exposed and that an FDIC-supervised 
institution have a process for assessing its overall capital adequacy 
in relation to its risk profile, as well as a comprehensive strategy 
for maintaining an appropriate level of capital.
    The supervisory evaluation of an FDIC-supervised institution's 
capital adequacy, including compliance with section 10(d), may include 
such factors as whether the FDIC-supervised institution is newly 
chartered, entering new activities, or introducing new products. The 
assessment also would consider whether an FDIC-supervised

[[Page 55363]]

institution is receiving special supervisory attention, has or is 
expected to have losses resulting in capital inadequacy, has 
significant exposure due to risks from concentrations in credit or 
nontraditional activities, or has significant exposure to interest rate 
risk, operational risk, or could be adversely affected by the 
activities or condition of an FDIC-supervised institution's holding 
company or other affiliates.
    Supervisors also evaluate the comprehensiveness and effectiveness 
of an FDIC-supervised institution's capital planning in light of its 
activities and capital levels. An effective capital planning process 
involves an assessment of the risks to which an FDIC-supervised 
institution is exposed and its processes for managing and mitigating 
those risks, an evaluation of its capital adequacy relative to its 
risks, and consideration of the potential impact on its earnings and 
capital base from current and prospective economic conditions. While 
the elements of supervisory review of capital adequacy would be similar 
across FDIC-supervised institutions, evaluation of the level of 
sophistication of an individual FDIC-supervised institution's capital 
adequacy process would be commensurate with the FDIC-supervised 
institution's size, sophistication, and risk profile, similar to the 
current supervisory practice.

H. Tangible Capital Requirement for State Savings Associations

    State savings associations currently are required to maintain 
tangible capital in an amount not less than 1.5 percent of total 
assets.\48\ This statutory requirement is implemented under the FDIC's 
current capital rules applicable to state savings associations.\49\ For 
purposes of the Basel III NPR, the FDIC also proposed to include a 
tangible capital requirement for state savings associations. The FDIC 
received no comments on this aspect of the proposal.
---------------------------------------------------------------------------

    \48\ Tangible capital is defined in section 5(t)(9)(B) of HOLA 
to mean ``core capital minus any intangible assets (as intangible 
assets are defined by the OCC for national banks).'' 12 U.S.C. 
1464(t)(9)(B). Core capital means ``core capital as defined by the 
OCC for national banks, less unidentifiable intangible assets'', 
unless the OCC prescribes a more stringent definition. 12 U.S.C. 
1464(t)(9)(A).
    \49\ 12 CFR 390.468.
---------------------------------------------------------------------------

    Concerning state savings associations, the FDIC does not believe 
that a unique regulatory definition of ``tangible capital'' is 
necessary for purposes of implementing HOLA. Accordingly, for purposes 
of the interim final rule, as of January 1, 2014 or January 1, 2015 
depending on whether the state savings associations applies the 
advanced approaches rule, the FDIC is defining ``tangible capital'' as 
the amount of tier 1 capital plus the amount of outstanding perpetual 
preferred stock (including related surplus) not included in tier 1 
capital.\50\ This definition is analogous to the definition of tangible 
capital adopted under the interim final rule for purposes of the PCA 
framework. The FDIC believes that this approach will reduce 
implementation burden associated with separate measures of tangible 
capital and is consistent with the purposes of HOLA and PCA.
---------------------------------------------------------------------------

    \50\ Until January 1, 2014 or January 1, 2015 depending on 
whether the state savings association applies the advanced 
approaches rule, the state savings association shall determine its 
tangible capital ratio as provided under 12 CFR 390.468.
---------------------------------------------------------------------------

    The FDIC notes that for purposes of the interim final rule, as of 
January 1, 2015, the term ``total adjusted assets'' in the definition 
of ``state savings associations tangible capital ratio'' has been 
replaced with the term ``total assets.'' The term total assets has the 
same definition as provided in the FDIC's PCA rules.\51\ As a result of 
this change, which should further reduce implementation burden, state 
savings associations will no longer calculate the tangible equity ratio 
using period-end total assets.
---------------------------------------------------------------------------

    \51\ See 12 CFR 324.401(g).
---------------------------------------------------------------------------

V. Definition of Capital

A. Capital Components and Eligibility Criteria for Regulatory Capital 
Instruments

1. Common Equity Tier 1 Capital
    Under the proposed rule, common equity tier 1 capital was defined 
as the sum of a banking organization's outstanding common equity tier 1 
capital instruments that satisfy the criteria set forth in section 
20(b) of the proposal, related surplus (net of treasury stock), 
retained earnings, AOCI, and common equity tier 1 minority interest 
subject to certain limitations, minus regulatory adjustments and 
deductions.
    The proposed rule set forth a list of criteria that an instrument 
would be required to meet to be included in common equity tier 1 
capital. The proposed criteria were designed to ensure that common 
equity tier 1 capital instruments do not possess features that would 
cause a banking organization's condition to further weaken during 
periods of economic and market stress. In the proposals, the agencies 
indicated that they believe most existing common stock instruments 
issued by U.S. banking organizations already would satisfy the proposed 
criteria.
    The proposed criteria also applied to instruments issued by banking 
organizations such as mutual banking organizations where ownership of 
the organization is not freely transferable or evidenced by 
certificates of ownership or stock. For these entities, the proposal 
provided that instruments issued by such organizations would be 
considered common equity tier 1 capital if they are fully equivalent to 
common stock instruments in terms of their subordination and 
availability to absorb losses, and do not possess features that could 
cause the condition of the organization to weaken as a going concern 
during periods of market stress.
    The agencies noted in the proposal that stockholders' voting rights 
generally are a valuable corporate governance tool that permits parties 
with an economic interest to participate in the decision-making process 
through votes on establishing corporate objectives and policy, and in 
electing the banking organization's board of directors. Therefore, the 
agencies believe that voting common stockholders' equity (net of the 
adjustments to and deductions from common equity tier 1 capital 
proposed under the rule) should be the dominant element within common 
equity tier 1 capital. The proposal also provided that to the extent 
that a banking organization issues non-voting common stock or common 
stock with limited voting rights, the underlying stock must be 
identical to those underlying the banking organization's voting common 
stock in all respects except for any limitations on voting rights.
    To ensure that a banking organization's common equity tier 1 
capital would be available to absorb losses as they occur, the proposed 
rule would have required common equity tier 1 capital instruments 
issued by a banking organization to satisfy the following criteria:
    (1) The instrument is paid-in, issued directly by the banking 
organization, and represents the most subordinated claim in a 
receivership, insolvency, liquidation, or similar proceeding of the 
banking organization.
    (2) The holder of the instrument is entitled to a claim on the 
residual assets of the banking organization that is proportional with 
the holder's share of the banking organization's issued capital after 
all senior claims have been satisfied in a receivership, insolvency, 
liquidation, or similar proceeding. That is, the holder has an 
unlimited and variable claim, not a fixed or capped claim.
    (3) The instrument has no maturity date, can only be redeemed via

[[Page 55364]]

discretionary repurchases with the prior approval of the banking 
organization's primary Federal supervisor, and does not contain any 
term or feature that creates an incentive to redeem.
    (4) The banking organization did not create at issuance of the 
instrument, through any action or communication, an expectation that it 
will buy back, cancel, or redeem the instrument, and the instrument 
does not include any term or feature that might give rise to such an 
expectation.
    (5) Any cash dividend payments on the instrument are paid out of 
the banking organization's net income and retained earnings and are not 
subject to a limit imposed by the contractual terms governing the 
instrument.
    (6) The banking organization has full discretion at all times to 
refrain from paying any dividends and making any other capital 
distributions on the instrument without triggering an event of default, 
a requirement to make a payment-in-kind, or an imposition of any other 
restrictions on the banking organization.
    (7) Dividend payments and any other capital distributions on the 
instrument may be paid only after all legal and contractual obligations 
of the banking organization have been satisfied, including payments due 
on more senior claims.
    (8) The holders of the instrument bear losses as they occur 
equally, proportionately, and simultaneously with the holders of all 
other common stock instruments before any losses are borne by holders 
of claims on the banking organization with greater priority in a 
receivership, insolvency, liquidation, or similar proceeding.
    (9) The paid-in amount is classified as equity under GAAP.
    (10) The banking organization, or an entity that the banking 
organization controls, did not purchase or directly or indirectly fund 
the purchase of the instrument.
    (11) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and is not subject to any other arrangement that legally 
or economically enhances the seniority of the instrument.
    (12) The instrument has been issued in accordance with applicable 
laws and regulations. In most cases, the agencies understand that the 
issuance of these instruments would require the approval of the board 
of directors of the banking organization or, where applicable, of the 
banking organization's shareholders or of other persons duly authorized 
by the banking organization's shareholders.
    (13) The instrument is reported on the banking organization's 
regulatory financial statements separately from other capital 
instruments.
    The agencies requested comment on the proposed criteria for 
inclusion in common equity tier 1, and specifically on whether any of 
the criteria would be problematic, given the main characteristics of 
existing outstanding common stock instruments.
    A substantial number of comments addressed the criteria for common 
equity tier 1 capital. Generally, commenters stated that the proposed 
criteria could prevent some instruments currently included in tier 1 
capital from being included in the new common equity tier 1 capital 
measure. Commenters stated that this could create complicated and 
unnecessary burden for banking organizations that either would have to 
raise capital to meet the common equity tier 1 capital requirement or 
shrink their balance sheets by selling off or winding down assets and 
exposures. Many commenters stated that the burden of raising new 
capital would have the effect of reducing lending overall, and that it 
would be especially acute for smaller banking organizations that have 
limited access to capital markets.
    Many commenters asked the agencies to clarify several aspects of 
the proposed criteria. For instance, a few commenters asked the 
agencies to clarify the proposed requirement that a common equity tier 
1 capital instrument be redeemed only with prior approval by a banking 
organization's primary Federal supervisor. These commenters asked if 
this criterion would require a banking organization to note this 
restriction on the face of a regulatory capital instrument that it may 
be redeemed only with the prior approval of the banking organization's 
primary Federal supervisor.
    The FDIC notes that the requirement that common equity tier 1 
capital instruments be redeemed only with prior agency approval is 
consistent with the FDIC's rules and federal law, which generally 
provide that an FDIC-supervised institution may not reduce its capital 
by redeeming capital instruments without receiving prior approval from 
the FDIC.\52\ The interim final rule does not obligate the FDIC-
supervised institution to include this restriction explicitly in the 
common equity tier 1 capital instrument's documentation. However, 
regardless of whether the instrument documentation states that its 
redemption is subject to FDIC approval, the FDIC-supervised institution 
must receive prior approval before redeeming such instruments. The FDIC 
believes that the approval requirement is appropriate as it provides 
for the monitoring of the strength of an FDIC-supervised institution's 
capital position, and therefore, have retained the proposed requirement 
in the interim final rule.
---------------------------------------------------------------------------

    \52\ See 12 CFR 303.241 (state nonmember banks) and 12 CFR 
390.345 (state savings associations).
---------------------------------------------------------------------------

    Several commenters also expressed concern about the proposed 
requirement that dividend payments and any other distributions on a 
common equity tier 1 capital instrument may be paid only after all 
legal and contractual obligations of the banking organization have been 
satisfied, including payments due on more senior claims. Commenters 
stated that, as proposed, this requirement could be construed to 
prevent a banking organization from paying a dividend on a common 
equity tier 1 capital instrument because of obligations that have not 
yet become due or because of immaterial delays in paying trade 
creditors \53\ for obligations incurred in the ordinary course of 
business.
---------------------------------------------------------------------------

    \53\ Trade creditors, for this purpose, would include 
counterparties with whom the banking organization contracts to 
procure office space and/or supplies as well as basic services, such 
as building maintenance.
---------------------------------------------------------------------------

    The FDIC notes that this criterion should not prevent an FDIC-
supervised institution from paying a dividend on a common equity tier 1 
capital instrument where it has incurred operational obligations in the 
normal course of business that are not yet due or that are subject to 
minor delays for reasons unrelated to the financial condition of the 
FDIC-supervised institution, such as delays related to contractual or 
other legal disputes.
    A number of commenters also suggested that the proposed criteria 
providing that dividend payments may be paid only out of current and 
retained earnings potentially could conflict with state corporate law, 
including Delaware state law. According to these commenters, Delaware 
state law permits a corporation to make dividend payments out of its 
capital surplus account, even when the organization does not have 
current or retained earnings.
    The FDIC observes that requiring that dividends be paid only out of 
net income and retained earnings is consistent with federal law and the 
existing regulations applicable to insured depository institutions. 
Under applicable statutes and regulations this aspect of the proposal 
did not include any substantive changes from the

[[Page 55365]]

general risk-based capital rules.\54\ With respect to FDIC-supervised 
institutions, prior supervisory approval is required to make a 
distribution that involves a reduction or retirement of capital stock. 
Under FDIC's general risk-based capital rules, a state nonmember bank 
is prohibited from paying a dividend that reduces the amount of its 
common or preferred capital stock (which includes any surplus), or 
retiring any part of its capital notes or debentures without prior 
approval from the FDIC.
---------------------------------------------------------------------------

    \54\ 12 U.S.C. 1828(i), 12 CFR 303.241 (state nonmember banks), 
and 12 CFR 390.345 (state savings associations).
---------------------------------------------------------------------------

    Finally, several commenters expressed concerns about the potential 
impact of the proposed criteria on stock issued as part of certain 
employee stock ownership plans (ESOPs) (as defined under Employee 
Retirement Income Security Act of 1974 \55\ (ERISA) regulations at 29 
CFR 2550.407d-6). Under the proposed rule, an instrument would not be 
included in common equity tier 1 capital if the banking organization 
creates an expectation that it will buy back, cancel, or redeem the 
instrument, or if the instrument includes any term or feature that 
might give rise to such an expectation. Additionally, the criteria 
would prevent a banking organization from including in common equity 
tier 1 capital any instrument that is subject to any type of 
arrangement that legally or economically enhances the seniority of the 
instrument. Commenters noted that under ERISA, stock that is not 
publicly traded and issued as part of an ESOP must include a ``put 
option'' that requires the company to repurchase the stock. By 
exercising the put option, an employee can redeem the stock instrument 
upon termination of employment. Commenters noted that this put option 
clearly creates an expectation that the instrument will be redeemed and 
arguably enhances the seniority of the instrument. Therefore, the 
commenters stated that the put option could prevent a privately-held 
banking organization from including earned ESOP shares in its common 
equity tier 1 capital.
---------------------------------------------------------------------------

    \55\ 29 U.S.C. 1002, et seq.
---------------------------------------------------------------------------

    The FDIC does not believe that an ERISA-mandated put option should 
prohibit ESOP shares from being included in common equity tier 1 
capital. Therefore, under the interim final rule, shares issued under 
an ESOP by an FDIC-supervised institution that is not publicly-traded 
are exempt from the criteria that the shares can be redeemed only via 
discretionary repurchases and are not subject to any other arrangement 
that legally or economically enhances their seniority, and that the 
FDIC-supervised institution not create an expectation that the shares 
will be redeemed. In addition to the concerns described above, because 
stock held in an ESOP is awarded by a banking organization for the 
retirement benefit of its employees, some commenters expressed concern 
that such stock may not conform to the criterion prohibiting a banking 
organization from directly or indirectly funding a capital instrument. 
Because the FDIC believes that an FDIC-supervised institution should 
have the flexibility to provide an ESOP as a benefit for its employees, 
the interim final rule provides that ESOP stock does not violate such 
criterion. Under the interim final rule, an FDIC-supervised 
institution's common stock held in trust for the benefit of employees 
as part of an ESOP in accordance with both ERISA and ERISA-related U.S. 
tax code requirements will qualify for inclusion as common equity tier 
1 capital only to the extent that the instrument is includable as 
equity under GAAP and that it meets all other criteria of section 
20(b)(1) of the interim final rule. Stock instruments held by an ESOP 
that are unawarded or unearned by employees or reported as ``temporary 
equity'' under GAAP (in the case of U.S. Securities and Exchange 
Commission (SEC) registrants), may not be counted as equity under GAAP 
and therefore may not be included in common equity tier 1 capital.
    After reviewing the comments received, the FDIC has decided to 
finalize the proposed criteria for common equity tier 1 capital 
instruments, modified as discussed above. Although it is possible some 
currently outstanding common equity instruments may not meet the common 
equity tier 1 capital criteria, the FDIC believes that most common 
equity instruments that are currently eligible for inclusion in FDIC-
supervised institutions' tier 1 capital meet the common equity tier 1 
capital criteria, and have not received information that would support 
a different conclusion. The FDIC therefore believes that most FDIC-
supervised institutions will not be required to reissue common equity 
instruments in order to comply with the final common equity tier 1 
capital criteria. The final revised criteria for inclusion in common 
equity tier 1 capital are set forth in section 324.20(b)(1) of the 
interim final rule.
2. Additional Tier 1 Capital
    Consistent with Basel III, the agencies proposed that additional 
tier 1 capital would equal the sum of: Additional tier 1 capital 
instruments that satisfy the criteria set forth in section 20(c) of the 
proposal, related surplus, and any tier 1 minority interest that is not 
included in a banking organization's common equity tier 1 capital 
(subject to the proposed limitations on minority interest), less 
applicable regulatory adjustments and deductions. The agencies proposed 
the following criteria for additional tier 1 capital instruments in 
section 20(c):
    (1) The instrument is issued and paid-in.
    (2) The instrument is subordinated to depositors, general 
creditors, and subordinated debt holders of the banking organization in 
a receivership, insolvency, liquidation, or similar proceeding.
    (3) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and not subject to any other arrangement that legally or 
economically enhances the seniority of the instrument.
    (4) The instrument has no maturity date and does not contain a 
dividend step-up or any other term or feature that creates an incentive 
to redeem.
    (5) If callable by its terms, the instrument may be called by the 
banking organization only after a minimum of five years following 
issuance, except that the terms of the instrument may allow it to be 
called earlier than five years upon the occurrence of a regulatory 
event (as defined in the agreement governing the instrument) that 
precludes the instrument from being included in additional tier 1 
capital or a tax event. In addition:
    (i) The banking organization must receive prior approval from its 
primary Federal supervisor to exercise a call option on the instrument.
    (ii) The banking organization does not create at issuance of the 
instrument, through any action or communication, an expectation that 
the call option will be exercised.
    (iii) Prior to exercising the call option, or immediately 
thereafter, the banking organization must either:
    (A) Replace the instrument to be called with an equal amount of 
instruments that meet the criteria under section 20(b) or (c) of the 
proposed rule (replacement can be concurrent with redemption of 
existing additional tier 1 capital instruments); or
    (B) Demonstrate to the satisfaction of its primary Federal 
supervisor that following redemption, the banking organization will 
continue to hold capital commensurate with its risk.
    (6) Redemption or repurchase of the instrument requires prior 
approval from

[[Page 55366]]

the banking organization's primary Federal supervisor.
    (7) The banking organization has full discretion at all times to 
cancel dividends or other capital distributions on the instrument 
without triggering an event of default, a requirement to make a 
payment-in-kind, or an imposition of other restrictions on the banking 
organization except in relation to any capital distributions to holders 
of common stock.
    (8) Any capital distributions on the instrument are paid out of the 
banking organization's net income and retained earnings.
    (9) The instrument does not have a credit-sensitive feature, such 
as a dividend rate that is reset periodically based in whole or in part 
on the banking organization's credit quality, but may have a dividend 
rate that is adjusted periodically independent of the banking 
organization's credit quality, in relation to general market interest 
rates or similar adjustments.
    (10) The paid-in amount is classified as equity under GAAP.
    (11) The banking organization, or an entity that the banking 
organization controls, did not purchase or directly or indirectly fund 
the purchase of the instrument.
    (12) The instrument does not have any features that would limit or 
discourage additional issuance of capital by the banking organization, 
such as provisions that require the banking organization to compensate 
holders of the instrument if a new instrument is issued at a lower 
price during a specified time frame.
    (13) If the instrument is not issued directly by the banking 
organization or by a subsidiary of the banking organization that is an 
operating entity, the only asset of the issuing entity is its 
investment in the capital of the banking organization, and proceeds 
must be immediately available without limitation to the banking 
organization or to the banking organization's top-tier holding company 
in a form which meets or exceeds all of the other criteria for 
additional tier 1 capital instruments.\56\
---------------------------------------------------------------------------

    \56\ De minimis assets related to the operation of the issuing 
entity could be disregarded for purposes of this criterion.
---------------------------------------------------------------------------

    (14) For an advanced approaches banking organization, the governing 
agreement, offering circular, or prospectus of an instrument issued 
after January 1, 2013, must disclose that the holders of the instrument 
may be fully subordinated to interests held by the U.S. government in 
the event that the banking organization enters into a receivership, 
insolvency, liquidation, or similar proceeding.
    The proposed criteria were designed to ensure that additional tier 
1 capital instruments would be available to absorb losses on a going-
concern basis. TruPS and cumulative perpetual preferred securities, 
which are eligible for limited inclusion in tier 1 capital under the 
general risk-based capital rules for bank holding companies, generally 
would not qualify for inclusion in additional tier 1 capital.\57\ As 
explained in the proposal, the agencies believe that instruments that 
allow for the accumulation of interest payable, like cumulative 
preferred securities, are not likely to absorb losses to the degree 
appropriate for inclusion in tier 1 capital. In addition, the exclusion 
of these instruments from the tier 1 capital of depository institution 
holding companies would be consistent with section 171 of the Dodd-
Frank Act.
---------------------------------------------------------------------------

    \57\ See 12 CFR part 225, appendix A, section II.A.1.
---------------------------------------------------------------------------

    The agencies noted in the proposal that under Basel III, 
instruments classified as liabilities for accounting purposes could 
potentially be included in additional tier 1 capital. However, the 
agencies proposed that an instrument classified as a liability under 
GAAP could not qualify as additional tier 1 capital, reflecting the 
agencies' view that allowing only instruments classified as equity 
under GAAP in tier 1 capital helps strengthen the loss-absorption 
capabilities of additional tier 1 capital instruments, thereby 
increasing the quality of the capital base of U.S. banking 
organizations.
    The agencies also proposed to allow banking organizations to 
include in additional tier 1 capital instruments that were: (1) Issued 
under the Small Business Jobs Act of 2010 \58\ or, prior to October 4, 
2010, under the Emergency Economic Stabilization Act of 2008,\59\ and 
(2) included in tier 1 capital under the agencies' general risk-based 
capital rules. Under the proposal, these instruments would be included 
in tier 1 capital regardless of whether they satisfied the proposed 
qualifying criteria for common equity tier 1 or additional tier 1 
capital. The agencies explained in the proposal that continuing to 
permit these instruments to be included in tier 1 capital is important 
to promote financial recovery and stability following the recent 
financial crisis.\60\
---------------------------------------------------------------------------

    \58\ Public Law 111-240, 124 Stat. 2504 (2010).
    \59\ Public Law 110-343, 122 Stat. 3765 (October 3, 2008).
    \60\ See, e.g., 73 FR 43982 (July 29, 2008); see also 76 FR 
35959 (June 21, 2011).
---------------------------------------------------------------------------

    A number of commenters addressed the proposed criteria for 
additional tier 1 capital. Consistent with comments on the criteria for 
common equity tier 1 capital, commenters generally argued that imposing 
new restrictions on qualifying regulatory capital instruments would be 
burdensome for many banking organizations that would be required to 
raise additional capital or to shrink their balance sheets to phase out 
existing regulatory capital instruments that no longer qualify as 
regulatory capital under the proposed rule.
    With respect to the proposed criteria, commenters requested that 
the agencies make a number of changes and clarifications. Specifically, 
commenters asked the agencies to clarify the use of the term 
``secured'' in criterion (3) above. In this context, a ``secured'' 
instrument is an instrument that is backed by collateral. In order to 
qualify as additional tier 1 capital, an instrument may not be 
collateralized, guaranteed by the issuing organization or an affiliate 
of the issuing organization, or subject to any other arrangement that 
legally or economically enhances the seniority of the instrument 
relative to more senior claims. Instruments backed by collateral, 
guarantees, or other arrangements that affect their seniority are less 
able to absorb losses than instruments without such enhancements. 
Therefore, instruments secured by collateral, guarantees, or other 
enhancements would not be included in additional tier 1 capital under 
the proposal. The FDIC has adopted this criterion as proposed.
    Commenters also asked the agencies to clarify whether terms 
allowing a banking organization to convert a fixed-rate instrument to a 
floating rate in combination with a call option, without any increase 
in credit spread, would constitute an ``incentive to redeem'' under 
criterion (4). The FDIC does not consider the conversion from a fixed 
rate to a floating rate (or from a floating rate to a fixed rate) in 
combination with a call option without any increase in credit spread to 
constitute an ``incentive to redeem'' for purposes of this criterion. 
More specifically, a call option combined with a change in reference 
rate where the credit spread over the second reference rate is equal to 
or less than the initial dividend rate less the swap rate (that is, the 
fixed rate paid to the call date to receive the second reference rate) 
would not be considered an incentive to redeem. For example, if the 
initial reference rate is 0.9 percent, the credit spread over the 
initial reference rate is 2 percent (that is, the initial dividend rate 
is 2.9 percent), and the swap rate to the call date is 1.2 percent, a 
credit spread over the second reference rate greater than 1.7 percent

[[Page 55367]]

(2.9 percent minus 1.2 percent) would be considered an incentive to 
redeem. The FDIC believes that the clarification above should address 
the commenters' concerns, and the FDIC is retaining this criterion in 
the interim final rule as proposed.
    Several commenters noted that the proposed requirement that a 
banking organization seek prior approval from its primary Federal 
supervisor before exercising a call option is redundant with the 
existing requirement that a banking organization seek prior approval 
before reducing regulatory capital by redeeming a capital instrument. 
The FDIC believes that the proposed requirement clarifies existing 
requirements and does not add any new substantive restrictions or 
burdens. Including this criterion also helps to ensure that the 
regulatory capital rules provide FDIC-supervised institutions a 
complete list of the requirements applicable to regulatory capital 
instruments in one location. Accordingly, the FDIC has retained this 
requirement in the interim final rule.
    Banking industry commenters also asserted that some of the proposed 
criteria could have an adverse impact on ESOPs. Specifically, the 
commenters noted that the proposed requirement that instruments not be 
callable for at least five years after issuance could be problematic 
for compensation plans that enable a company to redeem shares after 
employment is terminated. Commenters asked the agencies to exempt from 
this requirement stock issued as part of an ESOP. For the reasons 
stated above in the discussion of common equity tier 1 capital 
instruments, under the interim final rule, additional tier 1 
instruments issued under an ESOP by an FDIC-supervised institution that 
is not publicly traded are exempt from the criterion that additional 
tier 1 instruments not be callable for at least five years after 
issuance. Moreover, similar to the discussion above regarding the 
criteria for common equity tier 1 capital, the FDIC believes that 
required compliance with ERISA and ERISA-related tax code requirements 
alone should not prevent an instrument from being included in 
regulatory capital. Therefore, the FDIC is including a provision in the 
interim final rule to clarify that the criterion prohibiting an FDIC-
supervised institution from directly or indirectly funding a capital 
instrument, the criterion prohibiting a capital instrument from being 
covered by a guarantee of the FDIC-supervised institution or from being 
subject to an arrangement that enhances the seniority of the 
instrument, and the criterion pertaining to the creation of an 
expectation that the instrument will be redeemed, shall not prevent an 
instrument issued by a non-publicly traded FDIC-supervised institution 
as part of an ESOP from being included in additional tier 1 capital. In 
addition, capital instruments held by an ESOP trust that are unawarded 
or unearned by employees or reported as ``temporary equity'' under GAAP 
(in the case of U.S. SEC registrants) may not be counted as equity 
under GAAP and therefore may not be included in additional tier 1 
capital.
    Commenters also asked the agencies to add exceptions for early 
calls within five years of issuance in the case of an ``investment 
company event'' or a ``rating agency event,'' in addition to the 
proposed exceptions for regulatory and tax events. After considering 
the comments on these issues, the FDIC has decided to revise the 
interim final rule to permit an FDIC-supervised institution to call an 
instrument prior to five years after issuance in the event that the 
issuing entity is required to register as an investment company 
pursuant to the Investment Company Act of 1940.\61\ The FDIC recognizes 
that the legal and regulatory burdens of becoming an investment company 
could make it uneconomic to leave some structured capital instruments 
outstanding, and thus would permit the FDIC-supervised institution to 
call such instruments early.
---------------------------------------------------------------------------

    \61\ 15 U.S.C. 80 a-1 et seq.
---------------------------------------------------------------------------

    In order to ensure the loss-absorption capacity of additional tier 
1 capital instruments, the FDIC has decided not to revise the rule to 
permit an FDIC-supervised institution to include in its additional tier 
1 capital instruments issued on or after the effective date of the 
interim final rule that may be called prior to five years after 
issuance upon the occurrence of a rating agency event. However, 
understanding that many currently outstanding instruments have this 
feature, the FDIC has decided to revise the rule to allow an instrument 
that may be called prior to five years after its issuance upon the 
occurrence of a rating agency event to be included into additional tier 
1 capital, provided that (i) the instrument was issued and included in 
an FDIC-supervised institution's tier 1 capital prior to the effective 
date of the rule, and (ii) that such instrument meets all other 
criteria for additional tier 1 capital instruments under the interim 
final rule.
    In addition, a number of commenters reiterated the concern that 
restrictions on the payment of dividends from net income and current 
and retained earnings may conflict with state corporate laws that 
permit an organization to issue dividend payments from its capital 
surplus accounts. This criterion for additional tier 1 capital in the 
interim final rule reflects the identical final criterion for common 
equity tier 1 for the reasons discussed above with respect to common 
equity tier 1 capital.
    Commenters also noted that proposed criterion (10), which requires 
the paid-in amounts of tier 1 capital instruments to be classified as 
equity under GAAP before they may be included in regulatory capital, 
generally would prevent contingent capital instruments, which are 
classified as liabilities, from qualifying as additional tier 1 
capital. These commenters asked the agencies to revise the rules to 
provide that contingent capital instruments will qualify as additional 
tier 1 capital, regardless of their treatment under GAAP. Another 
commenter noted the challenges for U.S. banking organizations in 
devising contingent capital instruments that would satisfy the proposed 
criteria, and noted that if U.S. banking organizations develop an 
acceptable instrument, the instrument likely would initially be 
classified as debt instead of equity for GAAP purposes. Thus, in order 
to accommodate this possibility, the commenter urged the agencies to 
revise the criterion to allow the agencies to permit such an instrument 
in additional tier 1 capital through interpretive guidance or 
specifically in the case of a particular instrument.
    The FDIC continues to believe that restricting tier 1 capital 
instruments to those classified as equity under GAAP will help to 
ensure those instruments' capacity to absorb losses and further 
increase the quality of U.S. FDIC-supervised institutions' regulatory 
capital. The FDIC therefore has decided to retain this aspect of the 
proposal. To the extent that a contingent capital instrument is 
considered a liability under GAAP, an FDIC-supervised institution may 
not include the instrument in its tier 1 capital under the interim 
final rule. At such time as an instrument converts from debt to equity 
under GAAP, the instrument would then satisfy this criterion.
    In the preamble to the proposed rule, the agencies included a 
discussion regarding whether criterion (7) should be revised to require 
banking organizations to reduce the dividend payment on tier 1 capital 
instruments to a penny when a banking organization reduces dividend 
payments on a common equity tier 1 capital instrument to a penny per 
share. Such a revision would increase the capacity of

[[Page 55368]]

additional tier 1 instruments to absorb losses as it would permit a 
banking organization to reduce its capital distributions on additional 
tier 1 instruments without eliminating entirely its common stock 
dividend. Commenters asserted that such a revision would be unnecessary 
and could affect the hierarchy of subordination in capital instruments. 
Commenters also claimed the revision could prove burdensome as it could 
substantially increase the cost of raising capital through additional 
tier 1 capital instruments. In light of these comments the FDIC has 
decided to not modify criterion (7) to accommodate the issuance of a 
penny dividend as discussed in the proposal.
    Several commenters expressed concern that criterion (7) for 
additional tier 1 capital, could affect the tier 1 eligibility of 
existing noncumulative perpetual preferred stock. Specifically, the 
commenters were concerned that such a criterion would disallow 
contractual terms of an additional tier 1 capital instrument that 
restrict payment of dividends on another capital instrument that is 
pari passu in liquidation with the additional tier 1 capital instrument 
(commonly referred to as dividend stoppers). Consistent with Basel III, 
the FDIC agrees that restrictions related to capital distributions to 
holders of common stock instruments and holders of other capital 
instruments that are pari passu in liquidation with such additional 
tier 1 capital instruments are acceptable, and have amended this 
criterion accordingly for purposes of the interim final rule.
    After considering the comments on the proposal, the FDIC has 
decided to finalize the criteria for additional tier 1 capital 
instruments with the modifications discussed above. The final revised 
criteria for additional tier 1 capital are set forth in section 
324.20(c)(1) of the interim final rule. The FDIC expects that most 
outstanding noncumulative perpetual preferred stock that qualifies as 
tier 1 capital under the FDIC's general risk-based capital rules will 
qualify as additional tier 1 capital under the interim final rule.
3. Tier 2 Capital
    Consistent with Basel III, under the proposed rule, tier 2 capital 
would equal the sum of: tier 2 capital instruments that satisfy the 
criteria set forth in section 20(d) of the proposal, related surplus, 
total capital minority interest not included in a banking 
organization's tier 1 capital (subject to certain limitations and 
requirements), and limited amounts of the allowance for loan and lease 
losses (ALLL) less any applicable regulatory adjustments and 
deductions. Consistent with the general risk-based capital rules, when 
calculating its total capital ratio using the standardized approach, a 
banking organization would be permitted to include in tier 2 capital 
the amount of ALLL that does not exceed 1.25 percent of its 
standardized total risk-weighted assets which would not include any 
amount of the ALLL. A banking organization subject to the market risk 
rule would exclude its standardized market risk-weighted assets from 
the calculation.\62\ In contrast, when calculating its total capital 
ratio using the advanced approaches, a banking organization would be 
permitted to include in tier 2 capital the excess of its eligible 
credit reserves over its total expected credit loss, provided the 
amount does not exceed 0.6 percent of its credit risk-weighted assets.
---------------------------------------------------------------------------

    \62\ A banking organization would deduct the amount of ALLL in 
excess of the amount permitted to be included in tier 2 capital, as 
well as allocated transfer risk reserves, from its standardized 
total risk-weighted risk assets.
---------------------------------------------------------------------------

    Consistent with Basel III, the agencies proposed the following 
criteria for tier 2 capital instruments:
    (1) The instrument is issued and paid-in.
    (2) The instrument is subordinated to depositors and general 
creditors of the banking organization.
    (3) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and not subject to any other arrangement that legally or 
economically enhances the seniority of the instrument in relation to 
more senior claims.
    (4) The instrument has a minimum original maturity of at least five 
years. At the beginning of each of the last five years of the life of 
the instrument, the amount that is eligible to be included in tier 2 
capital is reduced by 20 percent of the original amount of the 
instrument (net of redemptions) and is excluded from regulatory capital 
when remaining maturity is less than one year. In addition, the 
instrument must not have any terms or features that require, or create 
significant incentives for, the banking organization to redeem the 
instrument prior to maturity.
    (5) The instrument, by its terms, may be called by the banking 
organization only after a minimum of five years following issuance, 
except that the terms of the instrument may allow it to be called 
sooner upon the occurrence of an event that would preclude the 
instrument from being included in tier 2 capital, or a tax event. In 
addition:
    (i) The banking organization must receive the prior approval of its 
primary Federal supervisor to exercise a call option on the instrument.
    (ii) The banking organization does not create at issuance, through 
action or communication, an expectation the call option will be 
exercised.
    (iii) Prior to exercising the call option, or immediately 
thereafter, the banking organization must either:
    (A) Replace any amount called with an equivalent amount of an 
instrument that meets the criteria for regulatory capital under section 
20 of the proposed rule; \63\ or
---------------------------------------------------------------------------

    \63\ Replacement of tier 2 capital instruments can be concurrent 
with redemption of existing tier 2 capital instruments.
---------------------------------------------------------------------------

    (B) Demonstrate to the satisfaction of the banking organization's 
primary Federal supervisor that following redemption, the banking 
organization would continue to hold an amount of capital that is 
commensurate with its risk.
    (6) The holder of the instrument must have no contractual right to 
accelerate payment of principal or interest on the instrument, except 
in the event of a receivership, insolvency, liquidation, or similar 
proceeding of the banking organization.
    (7) The instrument has no credit-sensitive feature, such as a 
dividend or interest rate that is reset periodically based in whole or 
in part on the banking organization's credit standing, but may have a 
dividend rate that is adjusted periodically independent of the banking 
organization's credit standing, in relation to general market interest 
rates or similar adjustments.
    (8) The banking organization, or an entity that the banking 
organization controls, has not purchased and has not directly or 
indirectly funded the purchase of the instrument.
    (9) If the instrument is not issued directly by the banking 
organization or by a subsidiary of the banking organization that is an 
operating entity, the only asset of the issuing entity is its 
investment in the capital of the banking organization, and proceeds 
must be immediately available without limitation to the banking 
organization or the banking organization's top-tier holding company in 
a form that meets or exceeds all the other criteria for tier 2 capital 
instruments under this section.\64\
---------------------------------------------------------------------------

    \64\ De minimis assets related to the operation of the issuing 
entity can be disregarded for purposes of this criterion.
---------------------------------------------------------------------------

    (10) Redemption of the instrument prior to maturity or repurchase 
requires

[[Page 55369]]

the prior approval of the banking organization's primary Federal 
supervisor.
    (11) For an advanced approaches banking organization, the governing 
agreement, offering circular, or prospectus of an instrument issued 
after January 1, 2013, must disclose that the holders of the instrument 
may be fully subordinated to interests held by the U.S. government in 
the event that the banking organization enters into a receivership, 
insolvency, liquidation, or similar proceeding.
    The agencies also proposed to eliminate the inclusion of a portion 
of certain unrealized gains on AFS equity securities in tier 2 capital 
given that unrealized gains and losses on AFS securities would flow 
through to common equity tier 1 capital under the proposed rules.
    As a result of the proposed new minimum common equity tier 1 
capital requirement, higher tier 1 capital requirement, and the broader 
goal of simplifying the definition of tier 2 capital, the proposal 
eliminated the existing limitations on the amount of tier 2 capital 
that could be recognized in total capital, as well as the existing 
limitations on the amount of certain capital instruments (that is, term 
subordinated debt) that could be included in tier 2 capital.
    Finally, the agencies proposed to allow an instrument that 
qualified as tier 2 capital under the general risk-based capital rules 
and that was issued under the Small Business Jobs Act of 2010,\65\ or, 
prior to October 4, 2010, under the Emergency Economic Stabilization 
Act of 2008, to continue to be includable in tier 2 capital regardless 
of whether it met all of the proposed qualifying criteria.
---------------------------------------------------------------------------

    \65\ Public Law 111-240, 124 Stat. 2504 (2010).
---------------------------------------------------------------------------

    Several commenters addressed the proposed eligibility criteria for 
tier 2 capital. A few banking industry commenters asked the agencies to 
clarify criterion (2) above to provide that trade creditors are not 
among the class of senior creditors whose claims rank ahead of 
subordinated debt holders. In response to these comments, the FDIC 
notes that the intent of the final rule, with its requirement that tier 
2 capital instruments be subordinated to depositors and general 
creditors, is to effectively retain the subordination standards for the 
tier 2 capital subordinated debt under the general risk-based capital 
rules. Therefore, the FDIC is clarifying that under the interim final 
rule, and consistent with the FDIC's general risk-based capital rules, 
subordinated debt instruments that qualify as tier 2 capital must be 
subordinated to general creditors, which generally means senior 
indebtedness, excluding trade creditors. Such creditors include at a 
minimum all borrowed money, similar obligations arising from off-
balance sheet guarantees and direct-credit substitutes, and obligations 
associated with derivative products such as interest rate and foreign-
exchange contracts, commodity contracts, and similar arrangements, and, 
in addition, for depository institutions, depositors.
    In addition, one commenter noted that while many existing banking 
organizations' subordinated debt indentures contain subordination 
provisions, they may not explicitly include a subordination provision 
with respect to ``general creditors'' of the banking organization. 
Thus, they recommended that this aspect of the rules be modified to 
have only prospective application. The FDIC notes that if it is clear 
from an instrument's governing agreement, offering circular, or 
prospectus, that the instrument is subordinated to general creditors 
despite not specifically stating ``general creditors,'' criterion (2) 
above is satisfied (that is, criterion (2) should not be read to mean 
that the phrase ``general creditors'' must appear in the instrument's 
governing agreement, offering circular, or prospectus, as the case may 
be).
    One commenter also asked whether a debt instrument that 
automatically converts to an equity instrument within five years of 
issuance, and that satisfies all criteria for tier 2 instruments other 
than the five-year maturity requirement, would qualify as tier 2 
capital. The FDIC notes that because such an instrument would 
automatically convert to a permanent form of regulatory capital, the 
five-year maturity requirement would not apply and, thus, it would 
qualify as tier 2 capital. The FDIC has clarified the interim final 
rule in this respect.
    Commenters also expressed concern about the impact of a number of 
the proposed criteria on outstanding TruPS. For example, commenters 
stated that a strict reading of criterion (3) above could exclude 
certain TruPS under which the banking organization guarantees that any 
payments made by the banking organization to the trust will be used by 
the trust to pay its obligations to security holders. However, the 
proposed rule would not have disqualified an instrument with this type 
of guarantee, which does not enhance or otherwise alter the 
subordination level of an instrument. Additionally, the commenters 
asked the agencies to allow in tier 2 capital instruments that provide 
for default and the acceleration of principal and interest if the 
issuer banking organization defers interest payments for five 
consecutive years. Commenters stated that these exceptions would be 
necessary to accommodate existing TruPS, which generally include such 
call, default and acceleration features.
    Commenters also asked the agencies to clarify the use of the term 
``secured'' in criterion (3). As discussed above with respect to the 
criteria for additional tier 1 capital, a ``secured'' instrument is an 
instrument where payments on the instrument are secured by collateral. 
Therefore, under criterion (3), a collateralized instrument will not 
qualify as tier 2 capital. Instruments secured by collateral are less 
able to absorb losses than instruments without such enhancement.
    With respect to subordinated debt instruments included in tier 2 
capital, a commenter recommended eliminating criterion (4)'s proposed 
five-year amortization requirement, arguing that that it was 
unnecessary given other capital planning requirements that banking 
organizations must satisfy. The FDIC declined to adopt the commenter's 
recommendation, as it believes that the proposed amortization schedule 
results in a more accurate reflection of the loss-absorbency of an 
FDIC-supervised institution's tier 2 capital. The FDIC notes that if an 
FDIC-supervised institution begins deferring interest payments on a 
TruPS instrument included in tier 2 capital, such an instrument will be 
treated as having a maturity of five years at that point and the FDIC-
supervised institution must begin excluding the appropriate amount of 
the instrument from capital in accordance with section 324.20(d)(1)(iv) 
of the interim final rule.
    Similar to the comments received on the criteria for additional 
tier 1 capital, commenters asked the agencies to add exceptions to the 
prohibition against call options that could be exercised within five 
years of the issuance of a capital instrument, specifically for an 
``investment company event'' and a ``rating agency event.''
    Although the FDIC declined to permit instruments that include 
acceleration provisions in tier 2 capital in the interim final rule, 
the FDIC believes that the inclusion in tier 2 capital of existing 
TruPS, which allow for acceleration after five years of interest 
deferral, does not raise safety and soundness concerns. Although the 
majority of existing TruPS would not technically comply with the 
interim final rule's tier 2 eligibility criteria, the FDIC acknowledges 
that the

[[Page 55370]]

inclusion of existing TruPS in tier 2 capital (until they are redeemed 
or they mature) would benefit certain FDIC-supervised institutions 
until they are able to replace such instruments with new capital 
instruments that fully comply with the eligibility criteria of the 
interim final rule.
    As with additional tier 1 capital instruments, the interim final 
rule permits an FDIC-supervised institution to call an instrument prior 
to five years after issuance in the event that the issuing entity is 
required to register with the SEC as an investment company pursuant to 
the Investment Company Act of 1940, for the reasons discussed above 
with respect to additional tier 1 capital. Also for the reasons 
discussed above with respect to additional tier 1 capital instruments, 
the FDIC has decided not to permit an FDIC-supervised institution to 
include in its tier 2 capital an instrument issued on or after the 
effective date of the interim final rule that may be called prior to 
five years after its issuance upon the occurrence of a rating agency 
event. However, the FDIC has decided to allow such an instrument to be 
included in tier 2 capital, provided that the instrument was issued and 
included in an FDIC-supervised institution's tier 1 or tier 2 capital 
prior to January 1, 2014, and that such instrument meets all other 
criteria for tier 2 capital instruments under the interim final rule.
    In addition, similar to the comment above with respect to the 
proposed criteria for additional tier 1 capital instruments, commenters 
noted that the proposed criterion that a banking organization seek 
prior approval from its primary Federal supervisor before exercising a 
call option is redundant with the requirement that a banking 
organization seek prior approval before reducing regulatory capital by 
redeeming a capital instrument. Again, the FDIC believes that this 
proposed requirement restates and clarifies existing requirements 
without adding any new substantive restrictions, and that it will help 
to ensure that the regulatory capital rules provide FDIC-supervised 
institutions with a complete list of the requirements applicable to 
their regulatory capital instruments. Therefore, the FDIC is retaining 
the requirement as proposed.
    Under the proposal, an advanced approaches banking organization may 
include in tier 2 capital the excess of its eligible credit reserves 
over expected credit loss (ECL) to the extent that such amount does not 
exceed 0.6 percent of credit risk-weighted assets, rather than 
including the amount of ALLL described above. Commenters asked the 
agencies to clarify whether an advanced approaches banking organization 
that is in parallel run includes in tier 2 capital its ECL or ALLL (as 
described above). To clarify, for purposes of the interim final rule, 
an advanced approaches FDIC-supervised institution will always include 
in total capital its ALLL up to 1.25 percent of (non-market risk) risk-
weighted assets when measuring its total capital relative to 
standardized risk-weighted assets. When measuring its total capital 
relative to its advanced approaches risk-weighted assets, as described 
in section 324.10(c)(3)(ii) of the interim final rule, an advanced 
approaches FDIC-supervised institution that has completed the parallel 
run process and that has received notification from the FDIC pursuant 
to section 324.121(d) of subpart E must adjust its total capital to 
reflect its excess eligible credit reserves rather than its ALLL.
    Some commenters recommended that the agencies remove the limit on 
the amount of the ALLL includable in regulatory capital. Specifically, 
one commenter recommended allowing banking organizations to include 
ALLL in tier 1 capital equal to an amount of up to 1.25 percent of 
total risk-weighted assets, with the balance in tier 2 capital, so that 
the entire ALLL would be included in regulatory capital. Moreover, some 
commenters recommended including in tier 2 capital the entire amount of 
reserves held for residential mortgage loans sold with recourse, given 
that the proposal would require a 100 percent credit conversion factor 
for such loans. Consistent with the ALLL treatment under the general 
risk-based capital rules, for purposes of the interim final rule the 
FDIC has elected to permit only limited amounts of the ALLL in tier 2 
capital given its limited purpose of covering incurred rather than 
unexpected losses. For similar reasons, the FDIC has further elected 
not to recognize in tier 2 capital reserves held for residential 
mortgage loans sold with recourse.
    As described above, an FDIC-supervised institution that has made an 
AOCI opt-out election may incorporate up to 45 percent of any net 
unrealized gains on AFS preferred stock classified as an equity 
security under GAAP and AFS equity exposures into its tier 2 capital.
    After reviewing the comments received on this issue, the FDIC has 
determined to finalize the criteria for tier 2 capital instruments to 
include the aforementioned changes. The revised criteria for inclusion 
in tier 2 capital are set forth in section 324.20(d)(1) of the interim 
final rule.
4. Capital Instruments of Mutual FDIC-Supervised Institutions
    Under the proposed rule, the qualifying criteria for common equity 
tier 1, additional tier 1, and tier 2 capital generally would apply to 
mutual banking organizations. Mutual banking organizations and industry 
groups representing mutual banking organizations encouraged the 
agencies to expand the qualifying criteria for additional tier 1 
capital to recognize certain cumulative instruments. These commenters 
stressed that mutual banking organizations, which do not issue common 
stock, have fewer options for raising regulatory capital relative to 
other types of banking organizations.
    The FDIC does not believe that cumulative instruments are able to 
absorb losses sufficiently reliably to be included in tier 1 capital. 
Therefore, after considering these comments, the FDIC has decided not 
to include in tier 1 capital under the interim final rule any 
cumulative instrument. This would include any previously-issued mutual 
capital instrument that was included in the tier 1 capital of mutual 
FDIC-supervised institutions under the general risk-based capital 
rules, but that does not meet the eligibility requirements for tier 1 
capital under the interim final rule. These cumulative capital 
instruments will be subject to the transition provisions and phased out 
of the tier 1 capital of mutual FDIC-supervised institutions over time, 
as set forth in Table 9 of section 324.300 in the interim final rule. 
However, if a mutual FDIC-supervised institution develops a new capital 
instrument that meets the qualifying criteria for regulatory capital 
under the interim final rule, such an instrument may be included in 
regulatory capital with the prior approval of the FDIC under section 
324.20(e) of the interim final rule.
    The FDIC notes that the qualifying criteria for regulatory capital 
instruments under the interim final rule permit mutual FDIC-supervised 
institutions to include in regulatory capital many of their existing 
regulatory capital instruments (for example, non-withdrawable accounts, 
pledged deposits, or mutual capital certificates). The FDIC believes 
that the quality and quantity of regulatory capital currently 
maintained by most mutual FDIC-supervised institutions should be 
sufficient to satisfy the requirements of the interim final rule. For 
those organizations that do not currently hold enough capital to meet 
the revised minimum requirements, the transition arrangements are 
designed to ease the

[[Page 55371]]

burden of increasing regulatory capital over time.
5. Grandfathering of Certain Capital Instruments
    As described above, a substantial number of commenters objected to 
the proposed phase-out of non-qualifying capital instruments, including 
TruPS and cumulative perpetual preferred stock, from tier 1 capital. 
Community FDIC-supervised institutions in particular expressed concerns 
that the costs related to the replacement of such capital instruments, 
which they generally characterized as safe and loss-absorbent, would be 
excessive and unnecessary. Commenters noted that the proposal was more 
restrictive than section 171 of the Dodd-Frank Act, which requires the 
phase-out of non-qualifying capital instruments issued prior to May 19, 
2010, only for depository institution holding companies with $15 
billion or more in total consolidated assets as of December 31, 2009. 
Commenters argued that the agencies were exceeding Congressional intent 
by going beyond what was required under the Dodd-Frank Act Commenters 
requested that the agencies grandfather existing TruPS and cumulative 
perpetual preferred stock issued by depository institution holding 
companies with less than $15 billion and 2010 MHCs.
    Although the FDIC continues to believe that TruPS are not 
sufficiently loss-absorbing to be includable in tier 1 capital as a 
general matter, the FDIC is also sensitive to the difficulties 
community banking organizations often face when issuing new capital 
instruments and are aware of the importance their capacity to lend 
plays in local economies. Therefore the FDIC has decided in the interim 
final rule to grandfather such non-qualifying capital instruments in 
tier 1 capital subject to a limit of 25 percent of tier 1 capital 
elements excluding any non-qualifying capital instruments and after all 
regulatory capital deductions and adjustments applied to tier 1 
capital, which is substantially similar to the limit in the general 
risk-based capital rules. In addition, the FDIC acknowledges that the 
inclusion of existing TruPS in tier 2 capital would benefit certain 
FDIC-supervised institutions until they are able to replace such 
instruments with new capital instruments that fully comply with the 
eligibility criteria of the interim final rule.
6. Agency Approval of Capital Elements
    The agencies noted in the proposal that they believe most existing 
regulatory capital instruments will continue to be includable in 
banking organizations' regulatory capital. However, over time, capital 
instruments that are equivalent in quality and capacity to absorb 
losses to existing instruments may be created to satisfy different 
market needs. Therefore, the agencies proposed to create a process to 
consider the eligibility of such instruments on a case-by-case basis. 
Under the proposed rule, a banking organization must request approval 
from its primary Federal supervisor before including a capital element 
in regulatory capital, unless: (i) such capital element is currently 
included in regulatory capital under the agencies' general risk-based 
capital and leverage rules and the underlying instrument complies with 
the applicable proposed eligibility criteria for regulatory capital 
instruments; or (ii) the capital element is equivalent, in terms of 
capital quality and ability to absorb losses, to an element described 
in a previous decision made publicly available by the banking 
organization's primary Federal supervisor.
    In the preamble to the proposal, the agencies indicated that they 
intend to consult each other when determining whether a new element 
should be included in common equity tier 1, additional tier 1, or tier 
2 capital, and indicated that once one agency determines that a capital 
element may be included in a banking organization's common equity tier 
1, additional tier 1, or tier 2 capital, that agency would make its 
decision publicly available, including a brief description of the 
capital element and the rationale for the conclusion.
    The FDIC continues to believe that it is appropriate to retain the 
flexibility necessary to consider new instruments on a case-by-case 
basis as they are developed over time to satisfy different market 
needs. The FDIC has decided to move its authority in section 20(e)(1) 
of the proposal to the its reservation of authority provision included 
in section 324.1(d)(2)(ii) of the interim final rule. Therefore, the 
FDIC is adopting this aspect of the interim final rule substantively as 
proposed to create a process to consider the eligibility of such 
instruments on a permanent or temporary basis, in accordance with the 
applicable requirements in subpart C of the interim final rule (section 
324.20(e) of the interim final rule).
    Section 324.20(e)(1) of the interim final rule provides that an 
FDIC-supervised institution must receive FDIC's prior approval to 
include a capital element in its common equity tier 1 capital, 
additional tier 1 capital, or tier 2 capital unless that element: (i) 
was included in the FDIC-supervised institution's tier 1 capital or 
tier 2 capital prior to May 19, 2010 in accordance with that 
supervisor's risk-based capital rules that were effective as of that 
date and the underlying instrument continues to be includable under the 
criteria set forth in this section; or (ii) is equivalent, in terms of 
capital quality and ability to absorb credit losses with respect to all 
material terms, to a regulatory capital element determined by that 
supervisor to be includable in regulatory capital pursuant to paragraph 
(e)(3) of section 324.20. In exercising this reservation of authority, 
the FDIC expects to consider the requirements for capital elements in 
the interim final rule; the size, complexity, risk profile, and scope 
of operations of the FDIC-supervised institution, and whether any 
public benefits would be outweighed by risk to an insured depository 
institution or to the financial system.
7. Addressing the Point of Non-Viability Requirements Under Basel III
    During the recent financial crisis, the United States and foreign 
governments lent to, and made capital investments in, banking 
organizations. These investments helped to stabilize the recipient 
banking organizations and the financial sector as a whole. However, 
because of the investments, the recipient banking organizations' 
existing tier 2 capital instruments, and (in some cases) tier 1 capital 
instruments, did not absorb the banking organizations' credit losses 
consistent with the purpose of regulatory capital. At the same time, 
taxpayers became exposed to potential losses.
    On January 13, 2011, the BCBS issued international standards for 
all additional tier 1 and tier 2 capital instruments issued by 
internationally-active banking organizations to ensure that such 
regulatory capital instruments fully absorb losses before taxpayers are 
exposed to such losses (the Basel non-viability standard). Under the 
Basel non-viability standard, all non-common stock regulatory capital 
instruments issued by an internationally-active banking organization 
must include terms that subject the instruments to write-off or 
conversion to common equity at the point at which either: (1) the 
write-off or conversion of those instruments occurs; or (2) a public 
sector injection of capital would be necessary to keep the banking 
organization solvent. Alternatively, if the governing jurisdiction of 
the banking organization has established laws that require such tier 1 
and tier 2

[[Page 55372]]

capital instruments to be written off or otherwise fully absorb losses 
before taxpayers are exposed to loss, the standard is already met. If 
the governing jurisdiction has such laws in place, the Basel non-
viability standard states that documentation for such instruments 
should disclose that information to investors and market participants, 
and should clarify that the holders of such instruments would fully 
absorb losses before taxpayers are exposed to loss.\66\
---------------------------------------------------------------------------

    \66\ See ``Final Elements of the Reforms to Raise the Quality of 
Regulatory Capital'' (January 2011), available at: https://www.bis.org/press/p110113.pdf.
---------------------------------------------------------------------------

    U.S. law is consistent with the Basel non-viability standard. The 
resolution regime established in Title II, section 210 of the Dodd-
Frank Act provides the FDIC with the authority necessary to place 
failing financial companies that pose a significant risk to the 
financial stability of the United States into receivership.\67\ The 
Dodd-Frank Act provides that this authority shall be exercised in a 
manner that minimizes systemic risk and moral hazard, so that (1) 
creditors and shareholders will bear the losses of the financial 
company; (2) management responsible for the condition of the financial 
company will not be retained; and (3) the FDIC and other appropriate 
agencies will take steps necessary and appropriate to ensure that all 
parties, including holders of capital instruments, management, 
directors, and third parties having responsibility for the condition of 
the financial company, bear losses consistent with their respective 
ownership or responsibility.\68\ Section 11 of the Federal Deposit 
Insurance Act has similar provisions for the resolution of depository 
institutions.\69\ Additionally, under U.S. bankruptcy law, regulatory 
capital instruments issued by a company would absorb losses in 
bankruptcy before instruments held by more senior unsecured creditors.
---------------------------------------------------------------------------

    \67\ See 12 U.S.C. 5384.
    \68\ See 12 U.S.C. 5384.
    \69\ 12 U.S.C. 1821.
---------------------------------------------------------------------------

    Consistent with the Basel non-viability standard, under the 
proposal, additional tier 1 and tier 2 capital instruments issued by 
advanced approaches banking organizations after the date on which such 
organizations would have been required to comply with any interim final 
rule would have been required to include a disclosure that the holders 
of the instrument may be fully subordinated to interests held by the 
U.S. government in the event that the banking organization enters into 
a receivership, insolvency, liquidation, or similar proceeding. The 
FDIC is adopting this provision of the proposed rule without change.
8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries 
of an FDIC-Supervised Institution
    As highlighted during the recent financial crisis, capital issued 
by consolidated subsidiaries and not owned by the parent banking 
organization (minority interest) is available to absorb losses at the 
subsidiary level, but that capital does not always absorb losses at the 
consolidated level. Accordingly, and consistent with Basel III, the 
proposed rule revised limitations on the amount of minority interest 
that may be included in regulatory capital at the consolidated level to 
prevent highly capitalized subsidiaries from overstating the amount of 
capital available to absorb losses at the consolidated organization.
    Under the proposal, minority interest would have been classified as 
a common equity tier 1, tier 1, or total capital minority interest 
depending on the terms of the underlying capital instrument and on the 
type of subsidiary issuing such instrument. Any instrument issued by a 
consolidated subsidiary to third parties would have been required to 
satisfy the qualifying criteria under the proposal to be included in 
the banking organization's common equity tier 1, additional tier 1, or 
tier 2 capital, as appropriate. In addition, common equity tier 1 
minority interest would have been limited to instruments issued by a 
depository institution or a foreign bank that is a consolidated 
subsidiary of a banking organization.
    The proposed limits on the amount of minority interest that could 
have been included in the consolidated capital of a banking 
organization would have been based on the amount of capital held by the 
consolidated subsidiary, relative to the amount of capital the 
subsidiary would have had to hold to avoid any restrictions on capital 
distributions and discretionary bonus payments under the capital 
conservation buffer framework. For example, a subsidiary with a common 
equity tier 1 capital ratio of 8 percent that needs to maintain a 
common equity tier 1 capital ratio of more than 7 percent to avoid 
limitations on capital distributions and discretionary bonus payments 
would have been considered to have ``surplus'' common equity tier 1 
capital and, at the consolidated level, the banking organization would 
not have been able to include the portion of such surplus common equity 
tier 1 capital that is attributable to third party investors.
    In general, the amount of common equity tier 1 minority interest 
that could have been included in the common equity tier 1 capital of a 
banking organization under the proposal would have been equal to:
    (i) The common equity tier 1 minority interest of the subsidiary 
minus
    (ii) The ratio of the subsidiary's common equity tier 1 capital 
owned by third parties to the total common equity tier 1 capital of the 
subsidiary, multiplied by the difference between the common equity tier 
1 capital of the subsidiary and the lower of:
    (1) the amount of common equity tier 1 capital the subsidiary must 
hold to avoid restrictions on capital distributions and discretionary 
bonus payments, or
    (2)(a) the standardized total risk-weighted assets of the banking 
organization that relate to the subsidiary, multiplied by
    (b) The common equity tier 1 capital ratio needed by the banking 
organization subsidiary to avoid restrictions on capital distributions 
and discretionary bonus payments.
    If a subsidiary were not subject to the same minimum regulatory 
capital requirements or capital conservation buffer framework as the 
banking organization, the banking organization would have needed to 
assume, for the purposes of the calculation described above, that the 
subsidiary is in fact subject to the same minimum capital requirements 
and the same capital conservation buffer framework as the banking 
organization.
    To determine the amount of tier 1 minority interest that could be 
included in the tier 1 capital of the banking organization and the 
total capital minority interest that could be included in the total 
capital of the banking organization, a banking organization would 
follow the same methodology as the one outlined previously for common 
equity tier 1 minority interest. The proposal set forth sample 
calculations. The amount of tier 1 minority interest that could have 
been included in the additional tier 1 capital of a banking 
organization under the proposal was equivalent to the banking 
organization's tier 1 minority interest, subject to the limitations 
outlined above, less any common equity tier 1 minority interest 
included in the banking organization's common equity tier 1 capital. 
Likewise, the amount of total capital minority interest that could have 
been included in the tier 2 capital of the banking organization was 
equivalent to its total capital minority interest, subject to the 
limitations outlined above, less any tier

[[Page 55373]]

1 minority interest that is included in the banking organization's tier 
1 capital.
    Under the proposal, minority interest related to qualifying common 
or noncumulative perpetual preferred stock directly issued by a 
consolidated U.S. depository institution or foreign bank subsidiary, 
which is eligible for inclusion in tier 1 capital under the general 
risk-based capital rules without limitation, generally would qualify 
for inclusion in common equity tier 1 and additional tier 1 capital, 
respectively, subject to the proposed limits. However, under the 
proposal, minority interest related to qualifying cumulative perpetual 
preferred stock directly issued by a consolidated U.S. depository 
institution or foreign bank subsidiary, which is eligible for limited 
inclusion in tier 1 capital under the general risk-based capital rules, 
generally would not have qualified for inclusion in additional tier 1 
capital under the proposal.
    A number of commenters addressed the proposed limits on the 
inclusion of minority interest in regulatory capital. Commenters 
generally asserted that the proposed methodology for calculating the 
amount of minority interest that could be included in regulatory 
capital was overly complex, overly conservative, and would reduce 
incentives for bank subsidiaries to issue capital to third-party 
investors. Several commenters suggested that the agencies should adopt 
a more straightforward and simple approach that would provide a single 
blanket limitation on the amount of minority interest includable in 
regulatory capital. For example, one commenter suggested allowing a 
banking organization to include minority interest equal to 18 percent 
of common equity tier 1 capital. Another commenter suggested that 
minority interest where shareholders have commitments to provide 
additional capital, as well as minority interest in joint ventures 
where there are guarantees or other credit enhancements, should not be 
subject to the proposed limitations.
    Commenters also objected to any limitations on the amount of 
minority interest included in the regulatory capital of a parent 
banking organization attributable to instruments issued by a subsidiary 
when the subsidiary is a depository institution. These commenters 
stated that restricting such minority interest could create a 
disincentive for depository institutions to issue capital instruments 
directly or to maintain capital at levels substantially above 
regulatory minimums. To address this concern, commenters asked the 
agencies to consider allowing a depository institution subsidiary to 
consider a portion of its capital above its minimum as not being part 
of its ``surplus'' capital for the purpose of calculating the minority 
interest limitation. Alternatively, some commenters suggested allowing 
depository institution subsidiaries to calculate surplus capital 
independently for each component of capital.
    Several commenters also addressed the proposed minority interest 
limitation as it would apply to subordinated debt issued by a 
depository institution. Generally, these commenters stated that the 
proposed minority interest limitation either should not apply to such 
subordinated debt, or that the limitation should be more flexible to 
permit a greater amount to be included in the total capital of the 
consolidated organization.
    Finally, some commenters pointed out that the application of the 
proposed calculation for the minority interest limitation was unclear 
in circumstances where a subsidiary depository institution does not 
have ``surplus'' capital. With respect to this comment, the FDIC has 
revised the proposed rule to specifically provide that the minority 
interest limitation will not apply in circumstances where a 
subsidiary's capital ratios are equal to or below the level of capital 
necessary to meet the minimum capital requirements plus the capital 
conservation buffer. That is, in the interim final rule the minority 
interest limitation would apply only where a subsidiary has ``surplus'' 
capital.
    The FDIC continues to believe that the proposed limitations on 
minority interest are appropriate, including for capital instruments 
issued by depository institution subsidiaries, tier 2 capital 
instruments, and situations in which a depository institution holding 
company conducts the majority of its business through a single 
depository institution subsidiary. As noted above, the FDIC's 
experience during the recent financial crisis showed that while 
minority interest generally is available to absorb losses at the 
subsidiary level, it may not always absorb losses at the consolidated 
level. Therefore, the FDIC continues to believe limitations on 
including minority interest will prevent highly-capitalized 
subsidiaries from overstating the amount of capital available to absorb 
losses at the consolidated organization. The increased safety and 
soundness benefits resulting from these limitations should outweigh any 
compliance burden issues related to the complexity of the calculations. 
Therefore, the FDIC is adopting the proposed treatment of minority 
interest without change, except for the clarification described above.
9. Real Estate Investment Trust Preferred Capital
    A real estate investment trust (REIT) is a company that is required 
to invest in real estate and real estate-related assets and make 
certain distributions in order to maintain a tax-advantaged status. 
Some banking organizations have consolidated subsidiaries that are 
REITs, and such REITs may have issued capital instruments included in 
the regulatory capital of the consolidated banking organization as 
minority interest under the general risk-based capital rules.
    Under the general risk-based capital rules, preferred stock issued 
by a REIT subsidiary generally can be included in a banking 
organization's tier 1 capital as minority interest if the preferred 
stock meets the eligibility requirements for tier 1 capital.\70\ The 
agencies interpreted this to require that the REIT-preferred stock be 
exchangeable automatically into noncumulative perpetual preferred stock 
of the banking organization under certain circumstances. Specifically, 
the primary Federal supervisor may direct the banking organization in 
writing to convert the REIT preferred stock into noncumulative 
perpetual preferred stock of the banking organization because the 
banking organization: (1) became undercapitalized under the PCA 
regulations; \71\ (2) was placed into conservatorship or receivership; 
or (3) was expected to become undercapitalized in the near term.\72\
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    \70\ 12 CFR part 325, subpart B.
    \71\ 12 CFR part 325, subpart A (state nonmember banks), and 12 
CFR part 390, subpart Y (state savings associations).
    \72\ 12 CFR part 325, subpart B (state nonmember banks) and 12 
CFR part 390, subpart Y (state savings associations).
---------------------------------------------------------------------------

    Under the proposed rule, the limitations described previously on 
the inclusion of minority interest in regulatory capital would have 
applied to capital instruments issued by consolidated REIT 
subsidiaries. Specifically, preferred stock issued by a REIT subsidiary 
that met the proposed definition of an operating entity (as defined 
below) would have qualified for inclusion in the regulatory capital of 
a banking organization subject to the limitations outlined in section 
21 of the proposed rule only if the REIT preferred stock met the 
criteria for additional tier 1 or tier 2 capital instruments outlined 
in section 20 of the proposed rules. Because a REIT must distribute 90 
percent of its earnings to maintain its tax-advantaged status, a 
banking organization might be reluctant to cancel dividends on the REIT 
preferred

[[Page 55374]]

stock. However, for a capital instrument to qualify as additional tier 
1 capital the issuer must have the ability to cancel dividends. In 
cases where a REIT could maintain its tax status, for example, by 
declaring a consent dividend and it has the ability to do so, the 
agencies generally would consider REIT preferred stock to satisfy 
criterion (7) of the proposed eligibility criteria for additional tier 
1 capital instruments.\73\ The FDIC notes that the ability to declare a 
consent dividend need not be included in the documentation of the REIT 
preferred instrument, but the FDIC-supervised institution must provide 
evidence to the relevant banking agency that it has such an ability. 
The FDIC does not expect preferred stock issued by a REIT that does not 
have the ability to declare a consent dividend or otherwise cancel cash 
dividends to qualify as tier 1 minority interest under the interim 
final rule; however, such an instrument could qualify as total capital 
minority interest if it meets all of the relevant tier 2 capital 
eligibility criteria under the interim final rule.
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    \73\ A consent dividend is a dividend that is not actually paid 
to the shareholders, but is kept as part of a company's retained 
earnings, yet the shareholders have consented to treat the dividend 
as if paid in cash and include it in gross income for tax purposes.
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    Commenters requested clarification on whether a REIT subsidiary 
would be considered an operating entity for the purpose of the interim 
final rule. For minority interest issued from a subsidiary to be 
included in regulatory capital, the subsidiary must be either an 
operating entity or an entity whose only asset is its investment in the 
capital of the parent banking organization and for which proceeds are 
immediately available without limitation to the banking organization. 
Since a REIT has assets that are not an investment in the capital of 
the parent banking organization, minority interest in a REIT subsidiary 
can be included in the regulatory capital of the consolidated parent 
banking organization only if the REIT is an operating entity. For 
purposes of the interim final rule, an operating entity is defined as a 
company established to conduct business with clients with the intention 
of earning a profit in its own right. However, certain REIT 
subsidiaries currently used by FDIC-supervised institutions to raise 
regulatory capital are not actively managed for the purpose of earning 
a profit in their own right, and therefore, will not qualify as 
operating entities for the purpose of the interim final rule. Minority 
interest investments in REIT subsidiaries that are actively managed for 
purposes of earning a profit in their own right will be eligible for 
inclusion in the regulatory capital of the FDIC-supervised institution 
subject to the limits described in section 21 of the interim final 
rule. To the extent that an FDIC-supervised institution is unsure 
whether minority interest investments in a particular REIT subsidiary 
will be includable in the FDIC-supervised institution's regulatory 
capital, the organization should discuss the concern with its primary 
Federal supervisor prior to including any amount of the minority 
interest in its regulatory capital.
    Several commenters objected to the application of the limitations 
on the inclusion of minority interest resulting from noncumulative 
perpetual preferred stock issued by REIT subsidiaries. Commenters noted 
that to be included in the regulatory capital of the consolidated 
parent banking organization under the general risk-based capital rules, 
REIT preferred stock must include an exchange feature that allows the 
REIT preferred stock to absorb losses at the parent banking 
organization through the exchange of REIT preferred instruments into 
noncumulative perpetual preferred stock of the parent banking 
organization. Because of this exchange feature, the commenters stated 
that REIT preferred instruments should be included in the tier 1 
capital of the parent consolidated organization without limitation. 
Alternatively, some commenters suggested that the agencies should allow 
REIT preferred instruments to be included in the tier 2 capital of the 
consolidated parent organization without limitation. Commenters also 
noted that in light of the eventual phase-out of TruPS pursuant to the 
Dodd-Frank Act, REIT preferred stock would be the only tax-advantaged 
means for bank holding companies to raise tier 1 capital. According to 
these commenters, limiting this tax-advantaged option would increase 
the cost of doing business for many banking organizations.
    After considering these comments, the FDIC has decided not to 
create specific exemptions to the limitations on the inclusion of 
minority interest with respect to REIT preferred instruments. As noted 
above, the FDIC believes that the inclusion of minority interest in 
regulatory capital at the consolidated level should be limited to 
prevent highly-capitalized subsidiaries from overstating the amount of 
capital available to absorb losses at the consolidated organization.

B. Regulatory Adjustments and Deductions

1. Regulatory Deductions From Common Equity Tier 1 Capital
    Under the proposal, a banking organization must deduct from common 
equity tier 1 capital elements the items described in section 22 of the 
proposed rule. A banking organization would exclude the amount of these 
deductions from its total risk-weighted assets and leverage exposure. 
This section B discusses the deductions from regulatory capital 
elements as revised for purposes of the interim final rule.
a. Goodwill and Other Intangibles (Other Than Mortgage Servicing 
Assets)
    U.S. federal banking statutes generally prohibit the inclusion of 
goodwill (as it is an ``unidentified intangible asset'') in the 
regulatory capital of insured depository institutions.\74\ Accordingly, 
goodwill and other intangible assets have long been either fully or 
partially excluded from regulatory capital in the United States because 
of the high level of uncertainty regarding the ability of the banking 
organization to realize value from these assets, especially under 
adverse financial conditions.\75\ Under the proposed rule, a banking 
organization was required to deduct from common equity tier 1 capital 
elements goodwill and other intangible assets other than MSAs \76\ net 
of associated deferred tax liabilities (DTLs). For purposes of this 
deduction, goodwill would have included any goodwill embedded in the 
valuation of significant investments in the capital of an 
unconsolidated financial institution in the form of common stock. This 
deduction of embedded goodwill would have applied to investments 
accounted for under the equity method.\77\ Consistent with Basel III, 
these items would have been deducted from common equity tier 1 capital 
elements. MSAs would have been subject to a different treatment under 
Basel III and the proposal, as explained below in this section.
---------------------------------------------------------------------------

    \74\ 12 U.S.C. 1828(n).
    \75\ 54 FR 11500, 11509 (March 21, 1989).
    \76\ Examples of other intangible assets include purchased 
credit card relationships (PCCRs) and non-mortgage servicing assets.
    \77\ Under GAAP, if there is a difference between the initial 
cost basis of the investment and the amount of underlying equity in 
the net assets of the investee, the resulting difference should be 
accounted for as if the investee were a consolidated subsidiary 
(which may include imputed goodwill).
---------------------------------------------------------------------------

    One commenter sought clarification regarding the amount of goodwill 
that must be deducted from common equity tier 1 capital elements when a 
banking organization has an investment in the

[[Page 55375]]

capital of an unconsolidated financial institution that is accounted 
for under the equity method of accounting under GAAP. The FDIC has 
revised section 22(a)(1) in the interim final rule to clarify that it 
is the amount of goodwill that is embedded in the valuation of a 
significant investment in the capital of an unconsolidated financial 
institution in the form of common stock that is accounted for under the 
equity method, and reflected in the consolidated financial statements 
of the FDIC-supervised institution that an FDIC-supervised institution 
must deduct from common equity tier 1 capital elements.
    Another commenter requested clarification regarding the amount of 
embedded goodwill that a banking organization would be required to 
deduct where there are impairments to the embedded goodwill subsequent 
to the initial investment. The FDIC notes that, for purposes of the 
interim final rule, an FDIC-supervised institution must deduct from 
common equity tier 1 capital elements any embedded goodwill in the 
valuation of significant investments in the capital of an 
unconsolidated financial institution in the form of common stock net of 
any related impairments (subsequent to the initial investment) as 
determined under GAAP, not the goodwill reported on the balance sheet 
of the unconsolidated financial institution.
    The proposal did not include a transition period for the 
implementation of the requirement to deduct goodwill from common equity 
tier 1 capital. A number of commenters expressed concern that this 
could disadvantage U.S. banking organizations relative to those in 
jurisdictions that permit such a transition period. The FDIC notes that 
section 221 of FIRREA (12 U.S.C. 1828(n)) requires all unidentifiable 
intangible assets (goodwill) acquired after April 12, 1989, to be 
deducted from an FDIC-supervised institution's capital elements. The 
only exception to this requirement, permitted under 12 U.S.C. 1464(t) 
(applicable to Federal savings association), has expired. Therefore, 
consistent with the requirements of section 221 of FIRREA and the 
general risk-based capital rules, the FDIC believes that it is not 
appropriate to permit any goodwill to be included in an FDIC-supervised 
institution's capital. The interim final rule does not include a 
transition period for the deduction of goodwill.
b. Gain-on-sale Associated With a Securitization Exposure
    Under the proposal, a banking organization would deduct from common 
equity tier 1 capital elements any after-tax gain-on-sale associated 
with a securitization exposure. Under the proposal, gain-on-sale was 
defined as an increase in the equity capital of a banking organization 
resulting from a securitization (other than an increase in equity 
capital resulting from the banking organization's receipt of cash in 
connection with the securitization).
    A number of commenters requested clarification that the proposed 
deduction for gain-on-sale would not require a double deduction for 
MSAs. According to the commenters, a sale of loans to a securitization 
structure that creates a gain may include an MSA that also meets the 
proposed definition of ``gain-on-sale.'' The FDIC agrees that a double 
deduction for MSAs is not required, and the interim final rule 
clarifies in the definition of ``gain-on-sale'' that a gain-on-sale 
excludes any portion of the gain that was reported by the FDIC-
supervised institution as an MSA. The FDIC also notes that the 
definition of gain-on-sale was intended to relate only to gains 
associated with the sale of loans for the purpose of traditional 
securitization. Thus, the definition of gain-on-sale has been revised 
in the interim final rule to mean an increase in common equity tier 1 
capital of the FDIC-supervised institution resulting from a traditional 
securitization except where such an increase results from the FDIC-
supervised institution's receipt of cash in connection with the 
securitization or initial recognition of an MSA.
c. Defined Benefit Pension Fund Net Assets
    For banking organizations other than insured depository 
institutions, the proposal required the deduction of a net pension fund 
asset in calculating common equity tier 1 capital. A banking 
organization was permitted to make such deduction net of any associated 
DTLs. This deduction would be required where a defined benefit pension 
fund is over-funded due to the high level of uncertainty regarding the 
ability of the banking organization to realize value from such assets.
    The proposal provided that, with supervisory approval, a banking 
organization would not have been required to deduct defined benefit 
pension fund assets to which the banking organization had unrestricted 
and unfettered access.\78\ In this case, the proposal established that 
the banking organization would have assigned to such assets the risk 
weight they would receive if the assets underlying the plan were 
directly owned and included on the balance sheet of the banking 
organization. The proposal set forth that unrestricted and unfettered 
access would mean that a banking organization would not have been 
required to request and receive specific approval from pension 
beneficiaries each time it accessed excess funds in the plan.
---------------------------------------------------------------------------

    \78\ The FDIC has unfettered access to the pension fund assets 
of an insured depository institution's pension plan in the event of 
receivership; therefore, the FDIC determined that an insured 
depository institution would not be required to deduct a net pension 
fund asset.
---------------------------------------------------------------------------

    One commenter asked whether shares of a banking organization that 
are owned by the banking organization's pension fund are subject to 
deduction. The FDIC notes that the interim final rule does not require 
deduction of banking organization shares owned by the pension fund. 
Another commenter asked for clarification regarding the treatment of an 
overfunded pension asset at an insured depository institution if the 
pension plan sponsor is the parent BHC. The FDIC clarifies that the 
requirement to deduct a defined benefit pension plan net asset is not 
dependent upon the sponsor of the plan; rather it is dependent upon 
whether the net pension fund asset is an asset of an insured depository 
institution. The agencies also received questions regarding the 
appropriate risk-weight treatment for a pension fund asset. As 
discussed above, with the prior agency approval, a banking organization 
that is not an insured depository institution may elect to not deduct 
any defined benefit pension fund net asset to the extent such banking 
organization has unrestricted and unfettered access to the assets in 
that defined benefit pension fund. Any portion of the defined benefit 
pension fund net asset that is not deducted by the banking organization 
must be risk-weighted as if the banking organization directly holds a 
proportional ownership share of each exposure in the defined benefit 
pension fund. For example, if the banking organization has a defined 
benefit pension fund net asset of $10 and it has unfettered and 
unrestricted access to the assets of defined benefit pension fund, and 
assuming 20 percent of the defined benefit pension fund is composed of 
assets that are risk-weighted at 100 percent and 80 percent is composed 
of assets that are risk-weighted at 300 percent, the banking 
organization would risk weight $2 at 100 percent and $8 at 300 percent. 
This treatment is consistent with the full look-through approach 
described in section 53(b) of the interim final rule. If the defined 
benefit pension fund invests in the capital of a financial institution, 
including an investment in the banking organization's own capital

[[Page 55376]]

instruments, the banking organization would risk weight the 
proportional share of such exposure in accordance with the treatment 
under subparts D or E, as appropriate.
    The FDIC is adopting as final this section of the proposal with the 
changes described above.
d. Expected Credit Loss That Exceeds Eligible Credit Reserves
    The proposal required an advanced approaches banking organization 
to deduct from common equity tier 1 capital elements the amount of 
expected credit loss that exceeds the banking organization's eligible 
credit reserves.
    Commenters sought clarification that the proposed deduction would 
not apply for advanced approaches banking organizations that have not 
received the approval of their primary Federal supervisor to exit 
parallel run. The FDIC agrees that the deduction would not apply to 
FDIC-supervised institutions that have not received approval from their 
primary Federal supervisor to exit parallel run. In response, the FDIC 
has revised this provision of the interim final rule to apply to an 
FDIC-supervised institution subject to subpart E of the interim final 
rule that has completed the parallel run process and that has received 
notification from the FDIC under section 324.121(d) of the advanced 
approaches rule.
e. Equity Investments in Financial Subsidiaries
    Section 121 of the Gramm-Leach-Bliley Act allows national banks and 
insured state banks to establish entities known as financial 
subsidiaries.\79\ One of the statutory requirements for establishing a 
financial subsidiary is that a national bank or insured state bank must 
deduct any investment in a financial subsidiary from the depository 
institution's assets and tangible equity.\80\ The FDIC implemented this 
statutory requirement through regulation at 12 CFR 362.18.
---------------------------------------------------------------------------

    \79\ Public Law 106-102, 113 Stat. 1338, 1373 (Nov. 12, 1999).
    \80\ 12 U.S.C. 24a(c); 12 U.S.C. 1831w(a)(2).
---------------------------------------------------------------------------

    Under section 22(a)(7) of the proposal, investments by an insured 
state bank in financial subsidiaries would be deducted entirely from 
the bank's common equity tier 1 capital.\81\ Because common equity tier 
1 capital is a component of tangible equity, the proposed deduction 
from common equity tier 1 would have automatically resulted in a 
deduction from tangible equity. The FDIC believes that the more 
conservative treatment is appropriate for financial subsidiaries given 
the risks associated with nonbanking activities, and are finalizing 
this treatment as proposed. Therefore, under the interim final rule, an 
FDIC-supervised institution must deduct the aggregate amount of its 
outstanding equity investment in a financial subsidiary, including the 
retained earnings of a subsidiary from common equity tier 1 capital 
elements, and the assets and liabilities of the subsidiary may not be 
consolidated with those of the parent bank.
---------------------------------------------------------------------------

    \81\ The deduction provided for in the FDIC's existing 
regulations would be removed and would exist solely in the interim 
final rule.
---------------------------------------------------------------------------

f. Deduction for Subsidiaries of Savings Associations That Engage in 
Activities That Are Not Permissible for National Banks
    Section 5(t)(5) \82\ of HOLA requires a separate capital 
calculation for state savings associations for ``investments in and 
extensions of credit to any subsidiary engaged in activities not 
permissible for a national bank.'' This statutory provision was 
implemented in the state savings associations' capital rules through a 
deduction from the core (tier 1) capital of the state savings 
association for those subsidiaries that are not ``includable 
subsidiaries.'' The FDIC proposed to continue the general risk-based 
capital treatment of includable subsidiaries, with some technical 
modifications. Aside from those technical modifications, the proposal 
would have transferred, without substantive change, the current general 
regulatory treatment of deducting subsidiary investments where a 
subsidiary is engaged in activities not permissible for a national 
bank. Such treatment is consistent with how a national bank deducts its 
equity investments in financial subsidiaries. The FDIC proposed an 
identical treatment for state savings associations.\83\
---------------------------------------------------------------------------

    \82\ 12 U.S.C. 1464(t)(5).
    \83\ 12 CFR 324.22.
---------------------------------------------------------------------------

    The FDIC received no comments on this proposed deduction. The 
interim final rule adopts the proposal with one change and other minor 
technical edits, consistent with 12 U.S.C. 1464(t)(5), to clarify that 
the required deduction for a state savings association's investment in 
a subsidiary that is engaged in activities not permissible for a 
national bank includes extensions of credit to such a subsidiary.
g. Identified Losses for State Nonmember Banks
    Under its existing capital rules, the FDIC requires state nonmember 
banks to deduct from tier 1 capital elements identified losses to the 
extent that tier 1 capital would have been reduced if the appropriate 
accounting entries had been recorded on the insured depository 
institution's books. Generally, for purposes of these rules, identified 
losses are those items that an examiner from the federal or state 
supervisor for that institution determines to be chargeable against 
income, capital, or general valuation allowances. For example, 
identified losses may include, among other items, assets classified 
loss, off-balance sheet items classified loss, any expenses that are 
necessary for the institution to record in order to replenish its 
general valuation allowances to an adequate level, and estimated losses 
on contingent liabilities.
    The FDIC is revising the interim final rule to clarify that state 
nonmember banks and state savings associations remain subject to its 
long-standing supervisory procedures regarding the deduction of 
identified losses. Therefore, for purposes of the interim final rule, 
such institutions must deduct identified losses from common equity tier 
1 capital elements.
2. Regulatory Adjustments to Common Equity Tier 1 Capital
a. Accumulated Net Gains and Losses on Certain Cash-Flow Hedges
    Consistent with Basel III, under the proposal, a banking 
organization would have been required to exclude from regulatory 
capital any accumulated net gains and losses on cash-flow hedges 
relating to items that are not recognized at fair value on the balance 
sheet.
    This proposed regulatory adjustment was intended to reduce the 
artificial volatility that can arise in a situation in which the 
accumulated net gain or loss of the cash-flow hedge is included in 
regulatory capital but any change in the fair value of the hedged item 
is not. The agencies received a number of comments on this proposed 
regulatory capital adjustment. In general, the commenters noted that 
while the intent of the adjustment is to remove an element that gives 
rise to artificial volatility in common equity, the proposed adjustment 
may actually increase volatility in the measure of common equity tier 1 
capital. These commenters indicated that the proposed adjustment, 
together with the proposed treatment of net unrealized gains and losses 
on AFS debt securities, would create incentives for banking 
organizations to avoid hedges that reduce interest rate risk; shorten 
maturity of their investments in AFS securities; or move their 
investment

[[Page 55377]]

securities portfolio from AFS to HTM. To address these concerns, 
commenters suggested several alternatives, such as including all 
accumulated net gains and losses on cash-flow hedges in common equity 
tier 1 capital to match the proposal to include in common equity tier 1 
capital net unrealized gains and losses on AFS debt securities; 
retaining the provisions in the agencies' general risk-based capital 
rules that exclude most elements of AOCI from regulatory capital; or 
using a principles-based approach to accommodate variations in the 
interest rate management techniques employed by each banking 
organization.
    Under the interim final rule, the FDIC has retained the requirement 
that all FDIC-supervised institutions subject to the advanced 
approaches rule, and those FDIC-supervised institutions that elect to 
include AOCI in common equity tier 1 capital, must subtract from common 
equity tier 1 capital elements any accumulated net gains and must add 
any accumulated net losses on cash-flow hedges included in AOCI that 
relate to the hedging of items that are not recognized at fair value on 
the balance sheet. The FDIC believes that this adjustment removes an 
element that gives rise to artificial volatility in common equity tier 
1 capital as it would avoid a situation in which the changes in the 
fair value of the cash-flow hedge are reflected in capital but the 
changes in the fair value of the hedged item are not.
b. Changes in an FDIC-Supervised Institution's Own Credit Risk
    The proposal provided that a banking organization would not be 
permitted to include in regulatory capital any change in the fair value 
of a liability attributable to changes in the banking organization's 
own credit risk. In addition, the proposal would have required advanced 
approaches banking organizations to deduct the credit spread premium 
over the risk-free rate for derivatives that are liabilities. 
Consistent with Basel III, these provisions were intended to prevent a 
banking organization from recognizing increases in regulatory capital 
resulting from any change in the fair value of a liability attributable 
to changes in the banking organization's own creditworthiness. Under 
the interim final rule, all FDIC-supervised institutions not subject to 
the advanced approaches rule must deduct any cumulative gain from and 
add back to common equity tier 1 capital elements any cumulative loss 
attributed to changes in the value of a liability measured at fair 
value arising from changes in the FDIC-supervised institution's own 
credit risk. This requirement would apply to all liabilities that an 
FDIC-supervised institution must measure at fair value under GAAP, such 
as derivative liabilities, or for which the FDIC-supervised institution 
elects to measure at fair value under the fair value option.\84\
---------------------------------------------------------------------------

    \84\ 825-10-25 (former Financial Accounting Standards Board 
Statement No. 159).
---------------------------------------------------------------------------

    Similarly, advanced approaches FDIC-supervised institutions must 
deduct any cumulative gain from and add back any cumulative loss to 
common equity tier 1 capital elements attributable to changes in the 
value of a liability that the FDIC-supervised institution elects to 
measure at fair value under GAAP. For derivative liabilities, advanced 
approaches FDIC-supervised institutions must implement this requirement 
by deducting the credit spread premium over the risk-free rate.
c. Accumulated Other Comprehensive Income
    Under the agencies' general risk-based capital rules, most of the 
components of AOCI included in a company's GAAP equity are not included 
in an FDIC-supervised institution's regulatory capital. Under GAAP, 
AOCI includes unrealized gains and losses on certain assets and 
liabilities that are not included in net income. Among other items, 
AOCI includes unrealized gains and losses on AFS securities; other than 
temporary impairment on securities reported as HTM that are not credit-
related; cumulative gains and losses on cash-flow hedges; foreign 
currency translation adjustments; and amounts attributed to defined 
benefit post-retirement plans resulting from the initial and subsequent 
application of the relevant GAAP standards that pertain to such plans.
    Under the agencies' general risk-based capital rules, FDIC-
supervised institutions do not include most amounts reported in AOCI in 
their regulatory capital calculations. Instead, they exclude these 
amounts by subtracting unrealized or accumulated net gains from, and 
adding back unrealized or accumulated net losses to, equity capital. 
The only amounts of AOCI included in regulatory capital are unrealized 
losses on AFS equity securities and foreign currency translation 
adjustments, which are included in tier 1 capital. Additionally, FDIC-
supervised institutions may include up to 45 percent of unrealized 
gains on AFS equity securities in their tier 2 capital.
    In contrast, consistent with Basel III, the proposed rule required 
banking organizations to include all AOCI components in common equity 
tier 1 capital elements, except gains and losses on cash-flow hedges 
where the hedged item is not recognized on a banking organization's 
balance sheet at fair value. Unrealized gains and losses on all AFS 
securities would flow through to common equity tier 1 capital elements, 
including unrealized gains and losses on debt securities due to changes 
in valuations that result primarily from fluctuations in benchmark 
interest rates (for example, U.S. Treasuries and U.S. government agency 
debt obligations), as opposed to changes in credit risk.
    In the Basel III NPR, the agencies indicated that the proposed 
regulatory capital treatment of AOCI would better reflect an 
institution's actual risk. In particular, the agencies stated that 
while unrealized gains and losses on AFS debt securities might be 
temporary in nature and reverse over a longer time horizon (especially 
when those gains and losses are primarily attributable to changes in 
benchmark interest rates), unrealized losses could materially affect a 
banking organization's capital position at a particular point in time 
and associated risks should therefore be reflected in its capital 
ratios. In addition, the agencies observed that the proposed treatment 
would be consistent with the common market practice of evaluating a 
firm's capital strength by measuring its tangible common equity, which 
generally includes AOCI.
    However, the agencies also acknowledged that including unrealized 
gains and losses related to debt securities (especially those whose 
valuations primarily change as a result of fluctuations in a benchmark 
interest rate) could introduce substantial volatility in a banking 
organization's regulatory capital ratios. Specifically, the agencies 
observed that for some banking organizations, including unrealized 
losses on AFS debt securities in their regulatory capital calculations 
could mean that fluctuations in a benchmark interest rate could lead to 
changes in their PCA categories from quarter to quarter. Recognizing 
the potential impact of such fluctuations on regulatory capital 
management for some institutions, the agencies described possible 
alternatives to the proposed treatment of unrealized gains and losses 
on AFS debt securities, including an approach that would exclude from 
regulatory capital calculations those unrealized gains and losses that 
are related to AFS debt securities whose valuations primarily change as 
a result of fluctuations in benchmark interest rates, including U.S. 
government and

[[Page 55378]]

agency debt obligations, GSE debt obligations, and other sovereign debt 
obligations that would qualify for a zero percent risk weight under the 
standardized approach.
    A large proportion of commenters addressed the proposed treatment 
of AOCI in regulatory capital. Banking organizations of all sizes, 
banking and other industry groups, public officials (including members 
of the U.S. Congress), and other individuals strongly opposed the 
proposal to include most AOCI components in common equity tier 1 
capital.
    Specifically, commenters asserted that the agencies should not 
implement the proposal and should instead continue to apply the 
existing treatment for AOCI that excludes most AOCI amounts from 
regulatory capital. Several commenters stated that the accounting 
standards that require banking organizations to take a charge against 
earnings (and thus reduce capital levels) to reflect credit-related 
losses as part of other-than-temporary impairments already achieve the 
agencies' goal to create regulatory capital ratios that provide an 
accurate picture of a banking organization's capital position, without 
also including AOCI in regulatory capital. For unrealized gains and 
losses on AFS debt securities that typically result from changes in 
benchmark interest rates rather than changes in credit risk, most 
commenters expressed concerns that the value of such securities on any 
particular day might not be a good indicator of the value of those 
securities for a banking organization, given that the banking 
organization could hold them until they mature and realize the amount 
due in full. Most commenters argued that the inclusion of unrealized 
gains and losses on AFS debt securities in regulatory capital could 
result in volatile capital levels and adversely affect other measures 
tied to regulatory capital, such as legal lending limits, especially if 
and when interest rates rise from their current historically-low 
levels.
    Accordingly, several commenters requested that the agencies permit 
banking organizations to remove from regulatory capital calculations 
unrealized gains and losses on AFS debt securities that have low credit 
risk but experience price movements based primarily on fluctuations in 
benchmark interest rates. According to commenters, these debt 
securities would include securities issued by the United States and 
other stable sovereign entities, U.S. agencies and GSEs, as well as 
some municipal entities. One commenter expressed concern that the 
proposed treatment of AOCI would lead banking organizations to invest 
excessively in securities with low volatility. Some commenters also 
suggested that unrealized gains and losses on high-quality asset-backed 
securities and high-quality corporate securities should be excluded 
from regulatory capital calculations. The commenters argued that these 
adjustments to the proposal would allow regulatory capital to reflect 
unrealized gains or losses related to the credit quality of a banking 
organization's AFS debt securities.
    Additionally, commenters noted that, under the proposal, offsetting 
changes in the value of other items on a banking organization's balance 
sheet would not be recognized for regulatory capital purposes when 
interest rates change. For example, the commenters observed that 
banking organizations often hold AFS debt securities to hedge interest 
rate risk associated with deposit liabilities, which are not marked to 
fair value on the balance sheet. Therefore, requiring banking 
organizations to include AOCI in regulatory capital would mean that 
interest rate fluctuations would be reflected in regulatory capital 
only for one aspect of this hedging strategy, with the result that the 
proposed treatment could greatly overstate the economic impact that 
interest rate changes have on the safety and soundness of the banking 
organization.
    Several commenters used sample AFS securities portfolio data to 
illustrate how an upward shift in interest rates could have a 
substantial impact on a banking organization's capital levels 
(depending on the composition of its AFS portfolio and its defined 
benefit postretirement obligations). According to these commenters, the 
potential negative impact on capital levels that could follow a 
substantial increase in interest rates would place significant strains 
on banking organizations.
    To address the potential impact of incorporating the volatility 
associated with AOCI into regulatory capital, banking organizations 
also noted that they could increase their overall capital levels to 
create a buffer above regulatory minimums, hedge or reduce the 
maturities of their AFS debt securities, or shift more debt securities 
into their HTM portfolio. However, commenters asserted that these 
strategies would be complicated and costly, especially for smaller 
banking organizations, and could lead to a significant decrease in 
lending activity. Many community banking organization commenters 
observed that hedging or raising additional capital may be especially 
difficult for banking organizations with limited access to capital 
markets, while shifting more debt securities into the HTM portfolio 
would impair active management of interest rate risk positions and 
negatively impact a banking organization's liquidity position. These 
commenters also expressed concern that this could be especially 
problematic given the increased attention to liquidity by banking 
regulators and industry analysts.
    A number of commenters indicated that in light of the potential 
impact of the proposed treatment of AOCI on a banking organization's 
liquidity position, the agencies should, at the very least, postpone 
implementing this aspect of the proposal until after implementation of 
the BCBS's revised liquidity standards. Commenters suggested that 
postponing the implementation of the AOCI treatment would help to 
ensure that the final capital rules do not create disincentives for a 
banking organization to increase its holdings of high-quality liquid 
assets. In addition, several commenters suggested that the agencies not 
require banking organizations to include in regulatory capital 
unrealized gains and losses on assets that would qualify as ``high 
quality liquid assets'' under the BCBS's ``liquidity coverage ratio'' 
under the Basel III liquidity framework.
    Finally, several commenters addressed the inclusion in AOCI of 
actuarial gains and losses on defined benefit pension fund obligations. 
Commenters stated that many banking organizations, particularly mutual 
banking organizations, offer defined benefit pension plans to attract 
employees because they are unable to offer stock options to employees. 
These commenters noted that actuarial gains and losses on defined 
benefit obligations represent the difference between benefit 
assumptions and, among other things, actual investment experiences 
during a given year, which is influenced predominantly by the discount 
rate assumptions used to determine the value of the plan obligation. 
The discount rate is tied to prevailing long-term interest rates at a 
point in time each year, and while market returns on the underlying 
assets of the plan and the discount rates may fluctuate year to year, 
the underlying liabilities typically are longer term--in some cases 15 
to 20 years. Therefore, changing interest rate environments could lead 
to material fluctuations in the value of a banking organization's 
defined benefit post-retirement fund assets and liabilities, which in 
turn could create material swings in a banking organization's 
regulatory capital that would not be tied to changes

[[Page 55379]]

in the credit quality of the underlying assets. Commenters stated that 
the added volatility in regulatory capital could lead some banking 
organizations to reconsider offering defined benefit pension plans.
    The FDIC has considered the comments on the proposal to incorporate 
most elements of AOCI in regulatory capital, and has taken into account 
the potential effects that the proposed AOCI treatment could have on 
FDIC-supervised institutions and their function in the economy. As 
discussed in the proposal, the FDIC believes that the proposed AOCI 
treatment results in a regulatory capital measure that better reflects 
FDIC-supervised institutions' actual risk at a specific point in time. 
The FDIC also believes that AOCI is an important indicator that market 
observers use to evaluate the capital strength of an FDIC-supervised 
institution.
    However, the FDIC recognizes that for many FDIC-supervised 
institutions, the volatility in regulatory capital that could result 
from the proposal could lead to significant difficulties in capital 
planning and asset-liability management. The FDIC also recognizes that 
the tools used by advanced approaches FDIC-supervised institutions and 
other larger, more complex FDIC-supervised institutions for managing 
interest rate risk are not necessarily readily available to all FDIC-
supervised institutions.
    Therefore, in the interim final rule, the FDIC has decided to 
permit those FDIC-supervised institutions that are not subject to the 
advanced approaches risk-based capital rules to elect to calculate 
regulatory capital by using the treatment for AOCI in the FDIC's 
general risk-based capital rules, which excludes most AOCI amounts. 
Such FDIC-supervised institutions, may make a one-time, permanent 
election \85\ to effectively continue using the AOCI treatment under 
the general risk-based capital rules for their regulatory calculations 
(``AOCI opt-out election'') when filing the Call Report for the first 
reporting period after the date upon which they become subject to the 
interim final rule.
---------------------------------------------------------------------------

    \85\ This one-time, opt-out selection does not cover a merger, 
acquisition or purchase transaction involving all or substantially 
all of the assets or voting stock between two banking organizations 
of which only one made an AOCI opt-out election. The resulting 
organization may make an AOCI election with prior agency approval.
---------------------------------------------------------------------------

    Pursuant to a separate notice under the Paperwork Reduction Act, 
the agencies intend to propose revisions to the Call Report to 
implement changes in reporting items that would correspond to the 
interim final rule. These revisions will include a line item for FDIC-
supervised institutions to indicate their AOCI opt-out election in 
their first regulatory report filed after the date the FDIC-supervised 
institution becomes subject to the interim final rule. Information 
regarding the AOCI opt-out election will be made available to the 
public and will be reflected on an ongoing basis in publicly available 
regulatory reports. An FDIC-supervised institution that does not make 
an AOCI opt-out election on the Call Report filed for the first 
reporting period after the effective date of the interim final rule 
must include all AOCI components, except accumulated net gains and 
losses on cash-flow hedges related to items that are not recognized at 
fair value on the balance sheet, in regulatory capital elements 
starting the first quarter in which the FDIC-supervised institution 
calculates its regulatory capital requirements under the interim final 
rule.
    Consistent with regulatory capital calculations under the FDIC's 
general risk-based capital rules, an FDIC-supervised institution that 
makes an AOCI opt-out election under the interim final rule must adjust 
common equity tier 1 capital elements by: (1) Subtracting any net 
unrealized gains and adding any net unrealized losses on AFS 
securities; (2) subtracting any net unrealized losses on AFS preferred 
stock classified as an equity security under GAAP and AFS equity 
exposures; (3) subtracting any accumulated net gains and adding back 
any accumulated net losses on cash-flow hedges included in AOCI; (4) 
subtracting amounts attributed to defined benefit postretirement plans 
resulting from the initial and subsequent application of the relevant 
GAAP standards that pertain to such plans (excluding, at the FDIC-
supervised institution's option, the portion relating to pension assets 
deducted under section 324.22(a)(5)); and (5) subtracting any net 
unrealized gains and adding any net unrealized losses on held-to-
maturity securities that are included in AOCI. In addition, consistent 
with the general risk-based capital rules, the FDIC-supervised 
institution must incorporate into common equity tier 1 capital any 
foreign currency translation adjustment. An FDIC-supervised institution 
may also incorporate up to 45 percent of any net unrealized gains on 
AFS preferred stock classified as an equity security under GAAP and AFS 
equity exposures into its tier 2 capital elements. However, the FDIC 
may exclude all or a portion of these unrealized gains from an FDIC-
supervised institution's tier 2 capital under the reservation of 
authority provision of the interim final rule if the FDIC determines 
that such preferred stock or equity exposures are not prudently valued.
    The FDIC believes that FDIC-supervised institutions that apply the 
advanced approaches rule or that have opted to use the advanced 
approaches rule should already have the systems in place necessary to 
manage the added volatility resulting from the new AOCI treatment. 
Likewise, pursuant to the Dodd-Frank Act, these large, complex FDIC-
supervised institutions are subject to enhanced prudential standards, 
including stress-testing requirements, and therefore should be prepared 
to manage their capital levels through the types of stressed economic 
environments, including environments with shifting interest rates, that 
could lead to substantial changes in amounts reported in AOCI. 
Accordingly, under the interim final rule, advanced approaches FDIC-
supervised institutions will be required to incorporate all AOCI 
components, except accumulated net gains and losses on cash-flow hedges 
that relate to items that are not measured at fair value on the balance 
sheet, into their common equity tier 1 capital elements according to 
the transition provisions set forth in the interim final rule.
    The interim final rule additionally provides that in a merger, 
acquisition, or purchase transaction between two FDIC-supervised 
institutions that have each made an AOCI opt-out election, the 
surviving entity will be required to continue with the AOCI opt-out 
election, unless the surviving entity is an advanced approaches FDIC-
supervised institution. Similarly, in a merger, acquisition, or 
purchase transaction between two FDIC-supervised institutions that have 
each not made an AOCI opt-out election, the surviving entity must 
continue implementing such treatment going forward. If an entity 
surviving a merger, acquisition, or purchase transaction becomes 
subject to the advanced approaches rule, it is no longer permitted to 
make an AOCI opt-out election and, therefore, must include most 
elements of AOCI in regulatory capital in accordance with the interim 
final rule.
    However, following a merger, acquisition or purchase transaction 
involving all or substantially all of the assets or voting stock 
between two banking organizations of which only one made an AOCI opt-
out election (and the surviving entity is not subject to the advanced 
approaches rule), the

[[Page 55380]]

surviving entity must decide whether to make an AOCI opt-out election 
by its first regulatory reporting date following the consummation of 
the transaction.\86\ For example, if all of the equity of a banking 
organization that has made an AOCI opt-out election is acquired by a 
banking organization that has not made such an election, the surviving 
entity may make a new AOCI opt-out election in the Call Report filed 
for the first reporting period after the effective date of the merger. 
The interim final rule also provides the FDIC with discretion to allow 
a new AOCI opt-out election where a merger, acquisition or purchase 
transaction between two banking organizations that have made different 
AOCI opt-out elections does not involve all or substantially all of the 
assets or voting stock of the purchased or acquired banking 
organization. In making such a determination, the FDIC may consider the 
terms of the merger, acquisition, or purchase transaction, as well as 
the extent of any changes to the risk profile, complexity, and scope of 
operations of the banking organization resulting from the merger, 
acquisition, or purchase transaction. The FDIC may also look to the 
Bank Merger Act \87\ for guidance on the types of transactions that 
would allow the surviving entity to make a new AOCI opt-out election. 
Finally, a de novo FDIC-supervised institution formed after the 
effective date of the interim final rule is required to make a decision 
to opt out in the first Call Report it is required to file.
---------------------------------------------------------------------------

    \86\ A merger would involve ``all or substantially all'' of the 
assets or voting stock where, for example: (1) a banking 
organization buys all of the voting stock of a target banking 
organization, except for the stock of a dissenting, non-controlling 
minority shareholder; or (2) the banking organization buys all of 
the assets and major business lines of a target banking 
organization, but does not purchase a minor business line of the 
target. Circumstances in which the ``all or substantially all'' 
standard likely would not be met would be, for example: (1) a 
banking organization buys less than 80 percent of another banking 
organization; or (3) a banking organization buys only three out of 
four of another banking organization's major business lines.
    \87\ 12 U.S.C. 1828(c).
---------------------------------------------------------------------------

    The interim final rule also provides that if a top-tier depository 
institution holding company makes an AOCI opt-out election, any 
subsidiary insured depository institution that is consolidated by the 
depository institution holding company also must make an AOCI opt-out 
election. The FDIC is concerned that if some FDIC-supervised 
institutions subject to regulatory capital rules under a common parent 
holding company make an AOCI opt-out election and others do not, there 
is a potential for these organizations to engage in capital arbitrage 
by choosing to book exposures or activities in the legal entity for 
which the relevant components of AOCI are treated most favorably.
    Notwithstanding the availability of the AOCI opt-out election under 
the interim final rule, the FDIC has reserved the authority to require 
an FDIC-supervised institution to recognize all or some components of 
AOCI in regulatory capital if an agency determines it would be 
appropriate given an FDIC-supervised institution's risks under the 
FDIC's general reservation of authority under the interim final rule. 
The FDIC will continue to expect each FDIC-supervised institution to 
maintain capital appropriate for its actual risk profile, regardless of 
whether it has made an AOCI opt-out election. Therefore, the FDIC may 
determine that an FDIC-supervised institution with a large portfolio of 
AFS debt securities, or that is otherwise engaged in activities that 
expose it to high levels of interest-rate or other risks, should raise 
its common equity tier 1 capital level substantially above the 
regulatory minimums, regardless of whether that FDIC-supervised 
institution has made an AOCI opt-out election.
d. Investments in Own Regulatory Capital Instruments
    To avoid the double-counting of regulatory capital, the proposal 
would have required a banking organization to deduct the amount of its 
investments in its own capital instruments, including direct and 
indirect exposures, to the extent such instruments are not already 
excluded from regulatory capital. Specifically, the proposal would 
require a banking organization to deduct its investment in its own 
common equity tier 1, additional tier 1, and tier 2 capital instruments 
from the sum of its common equity tier 1, additional tier 1, and tier 2 
capital, respectively. In addition, under the proposal any common 
equity tier 1, additional tier 1, or tier 2 capital instrument issued 
by a banking organization that the banking organization could be 
contractually obligated to purchase also would have been deducted from 
common equity tier 1, additional tier 1, or tier 2 capital elements, 
respectively. The proposal noted that if a banking organization had 
already deducted its investment in its own capital instruments (for 
example, treasury stock) from its common equity tier 1 capital, it 
would not need to make such deductions twice.
    The proposed rule would have required a banking organization to 
look through its holdings of an index to deduct investments in its own 
capital instruments. Gross long positions in investments in its own 
regulatory capital instruments resulting from holdings of index 
securities would have been netted against short positions in the same 
underlying index. Short positions in indexes to hedge long cash or 
synthetic positions could have been decomposed to recognize the hedge. 
More specifically, the portion of the index composed of the same 
underlying exposure that is being hedged could have been used to offset 
the long position only if both the exposure being hedged and the short 
position in the index were covered positions under the market risk rule 
and the hedge was deemed effective by the banking organization's 
internal control processes which would have been assessed by the 
primary Federal supervisor of the banking organization. If the banking 
organization found it operationally burdensome to estimate the 
investment amount of an index holding, the proposal permitted the 
institution to use a conservative estimate with prior approval from its 
primary Federal supervisor. In all other cases, gross long positions 
would have been allowed to be deducted net of short positions in the 
same underlying instrument only if the short positions involved no 
counterparty risk (for example, the position was fully collateralized 
or the counterparty is a qualifying central counterparty (QCCP)).
    As discussed above, under the proposal, a banking organization 
would be required to look through its holdings of an index security to 
deduct investments in its own capital instruments. Some commenters 
asserted that the burden of the proposed look-through approach 
outweighs its benefits because it is not likely a banking organization 
would re-purchase its own stock through such indirect means. These 
commenters suggested that the agencies should not require a look-
through test for index securities on the grounds that they are not 
``covert buybacks,'' but rather are incidental positions held within a 
banking organization's trading book, often entered into on behalf of 
clients, customers or counterparties, and are economically hedged. 
However, the FDIC believes that it is important to avoid the double-
counting of regulatory capital, whether held directly or indirectly. 
Therefore, the interim final rule implements the look-through 
requirements of the proposal without change. In addition, consistent 
with the treatment for indirect investments in an FDIC-supervised 
institution's own capital instruments, the FDIC has clarified in the 
interim final rule that FDIC-supervised institutions must

[[Page 55381]]

deduct synthetic exposures related to investments in own capital 
instruments.
e. Definition of Financial Institution
    Under the proposed rule, a banking organization would have been 
required to deduct an investment in the capital of an unconsolidated 
financial institution exceeding certain thresholds, as described below. 
The proposed definition of financial institution was designed to 
include entities whose activities and primary business are financial in 
nature and therefore could contribute to interconnectedness in the 
financial system. The proposed definition covered entities whose 
primary business is banking, insurance, investing, and trading, or a 
combination thereof, and included BHCs, SLHCs, nonbank financial 
institutions supervised by the Federal Reserve under Title I of the 
Dodd-Frank Act, depository institutions, foreign banks, credit unions, 
insurance companies, securities firms, commodity pools, covered funds 
for purposes of section 13 of the Bank Holding Company Act and 
regulations issued thereunder, companies ``predominantly engaged'' in 
financial activities, non-U.S.-domiciled entities that would otherwise 
have been covered by the definition if they were U.S.-domiciled, and 
any other company that the agencies determined was a financial 
institution based on the nature and scope of its activities. The 
definition excluded GSEs and firms that were ``predominantly engaged'' 
in activities that are financial in nature but focus on community 
development, public welfare projects, and similar objectives. Under the 
proposed definition, a company would have been ``predominantly 
engaged'' in financial activities if (1) 85 percent or more of the 
total consolidated annual gross revenues (as determined in accordance 
with applicable accounting standards) of the company in either of the 
two most recent calendar years were derived, directly or indirectly, by 
the company on a consolidated basis from the activities; or (2) 85 
percent or more of the company's consolidated total assets (as 
determined in accordance with applicable accounting standards) as of 
the end of either of the two most recent calendar years were related to 
the activities.
    The proposed definition of ``financial institution'' was also 
relevant for purposes of the Advanced Approaches NPR. Specifically, the 
proposed rule would have required banking organizations to apply a 
multiplier of 1.25 to the correlation factor for wholesale exposures to 
unregulated financial institutions that generate a majority of their 
revenue from financial activities. The proposed rule also would have 
required advanced approaches banking organizations to apply a 
multiplier of 1.25 to wholesale exposures to regulated financial 
institutions with consolidated assets greater than or equal to $100 
billion.\88\
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    \88\ The definitions of regulated financial institutions and 
unregulated financial institutions are discussed in further detail 
in section XII.A of this preamble. Under the proposal, a ``regulated 
financial institution'' would include a financial institution 
subject to consolidated supervision and regulation comparable to 
that imposed on U.S. companies that are depository institutions, 
depository institution holding companies, nonbank financial 
companies supervised by the Board, broker dealers, credit unions, 
insurance companies, and designated financial market utilities.
---------------------------------------------------------------------------

    The agencies received a number of comments on the proposed 
definition of ``financial institution.'' Commenters expressed concern 
that the definition of a financial institution was overly broad and 
stated that it should not include investments in funds, commodity 
pools, or ERISA plans. Other commenters stated that the ``predominantly 
engaged'' test would impose significant operational burdens on banking 
organizations in determining what companies would be included in the 
proposed definition of ``financial institution.'' Commenters suggested 
that the agencies should risk weight such exposures, rather than 
subjecting them to a deduction from capital based on the definition of 
financial institution.
    Some of the commenters noted that many of the exposures captured by 
the financial institution definition may be risk-weighted under certain 
circumstances, and expressed concerns that overlapping regulation would 
result in confusion. For similar reasons, commenters recommended that 
the agencies limit the definition of financial institution to specific 
enumerated entities, such as regulated financial institutions, 
including insured depository institutions and holding companies, 
nonbank financial companies designated by the Financial Stability 
Oversight Council, insurance companies, securities holding companies, 
foreign banks, securities firms, futures commission merchants, swap 
dealers, and security based swap dealers. Other commenters stated that 
the definition should cover only those entities subject to consolidated 
regulatory capital requirements. Commenters also encouraged the 
agencies to adopt alternatives to the ``predominantly engaged'' test 
for identifying a financial institution, such as the use of standard 
industrial classification codes or legal entity identifiers. Other 
commenters suggested that the agencies should limit the application of 
the ``predominantly engaged'' test in the definition of ``financial 
institution'' to companies above a specified size threshold. Similarly, 
others requested that the agencies exclude any company with total 
assets of less than $50 billion. Many commenters indicated that the 
broad definition proposed by the agencies was not required by Basel III 
and was unnecessary to promote systemic stability and avoid 
interconnectivity. Some commenters stated that funds covered by Section 
13 of the Bank Holding Company Act also should be excluded. Other 
commenters suggested that the agencies should exclude investment funds 
registered with the SEC under the Investment Company Act of 1940 and 
their foreign equivalents, while some commenters suggested methods of 
narrowing the definition to cover only leveraged funds. Commenters also 
requested that the agencies clarify that investment or financial 
advisory activities include providing both discretionary and non-
discretionary investment or financial advice to customers, and that the 
definition would not capture either registered investment companies or 
investment advisers to registered funds.
    After considering the comments, the FDIC has modified the 
definition of ``financial institution'' to provide more clarity around 
the scope of the definition as well as reduce operational burden. 
Separate definitions are adopted under the advanced approaches 
provisions of the interim final rule for ``regulated financial 
institution'' and ``unregulated financial institution'' for purposes of 
calculating the correlation factor for wholesale exposures, as 
discussed in section XII.A of this preamble.
    Under the interim final rule, the first paragraph of the definition 
of a financial institution includes an enumerated list of regulated 
institutions similar to the list that appeared in the first paragraph 
of the proposed definition: A BHC; SLHC; nonbank financial institution 
supervised by the Federal Reserve under Title I of the Dodd-Frank Act; 
depository institution; foreign bank; credit union; industrial loan 
company, industrial bank, or other similar institution described in 
section 2 of the Bank Holding Company Act; national association, state 
member bank, or state nonmember bank that is not a depository 
institution; insurance company; securities holding company as defined 
in section 618 of the Dodd-Frank Act; broker or dealer registered with 
the SEC; futures commission merchant and swap dealer, each as

[[Page 55382]]

defined in the Commodity Exchange Act; or security-based swap dealer; 
or any designated financial market utility (FMU). The definition also 
includes foreign companies that would be covered by the definition if 
they are supervised and regulated in a manner similar to the 
institutions described above that are included in the first paragraph 
of the definition of ``financial institution.'' The FDIC also has 
retained in the final definition of ``financial institution'' a 
modified version of the proposed ``predominantly engaged'' test to 
capture additional entities that perform certain financial activities 
that the FDIC believes appropriately addresses those relationships 
among financial institutions that give rise to concerns about 
interconnectedness, while reducing operational burden. Consistent with 
the proposal, a company is ``predominantly engaged'' in financial 
activities for the purposes of the definition if it meets the test to 
the extent the following activities make up more than 85 percent of the 
company's total assets or gross revenues:
    (1) Lending money, securities or other financial instruments, 
including servicing loans;
    (2) Insuring, guaranteeing, indemnifying against loss, harm, 
damage, illness, disability, or death, or issuing annuities;
    (3) Underwriting, dealing in, making a market in, or investing as 
principal in securities or other financial instruments; or
    (4) Asset management activities (not including investment or 
financial advisory activities).
    In response to comments expressing concerns regarding operational 
burden and potential lack of access to necessary information in 
applying the proposed ``predominantly engaged'' test, the FDIC has 
revised that portion of the definition. Now, the FDIC-supervised 
institution would only apply the test if it has an investment in the 
GAAP equity instruments of the company with an adjusted carrying value 
or exposure amount equal to or greater than $10 million, or if it owns 
more than 10 percent of the company's issued and outstanding common 
shares (or similar equity interest). The FDIC believes that this 
modification would reduce burden on FDIC-supervised institutions with 
small exposures, while those with larger exposures should have 
sufficient information as a shareholder to conduct the predominantly 
engaged analysis.\89\
---------------------------------------------------------------------------

    \89\ For advanced approaches FDIC-supervised institutions, for 
purposes of section 131 of the interim final rule, the definition of 
``unregulated financial institution'' does not include the ownership 
limitation in applying the ``predominantly engaged'' standard.
---------------------------------------------------------------------------

    In cases when an FDIC-supervised institution's investment in the 
FDIC-supervised institution exceeds one of the thresholds described 
above, the FDIC-supervised institution must determine whether the 
company is predominantly engaged in financial activities, in accordance 
with the interim final rule. The FDIC believes that this modification 
will substantially reduce operational burden for FDIC-supervised 
institutions with investments in multiple institutions. The FDIC also 
believes that an investment of $10 million in or a holding of 10 
percent of the outstanding common shares (or equivalent ownership 
interest) of an entity has the potential to create a risk of 
interconnectedness, and also makes it reasonable for the FDIC-
supervised institution to gain information necessary to understand the 
operations and activities of the company in which it has invested and 
to apply the proposed ``predominantly engaged'' test under the 
definition. The FDIC is clarifying that, consistent with the proposal, 
investment or financial advisers (whether they provide discretionary or 
non-discretionary advisory services) are not covered under the 
definition of financial institution. The revised definition also 
specifically excludes employee benefit plans. The FDIC believes, upon 
review of the comments, that employee benefit plans are heavily 
regulated under ERISA and do not present the same kind of risk of 
systemic interconnectedness that the enumerated financial institutions 
present. The revised definition also explicitly excludes investment 
funds registered with the SEC under the Investment Company Act of 1940, 
as the FDIC believes that such funds create risks of systemic 
interconnectedness largely through their investments in the capital of 
financial institutions. These investments are addressed directly by the 
interim final rule's treatment of indirect investments in financial 
institutions. Although the revised definition does not specifically 
include commodities pools, under some circumstances an FDIC-supervised 
institution's investment in a commodities pool might meet the 
requirements of the modified ``predominantly engaged'' test.
    Some commenters also requested that the agencies establish an asset 
threshold below which an entity would not be included in the definition 
of ``financial institution.'' The FDIC has not included such a 
threshold because they are concerned that it could create an incentive 
for multiple investments and aggregated exposures in smaller financial 
institutions, thereby undermining the rationale underlying the 
treatment of investments in the capital of unconsolidated financial 
institutions. The FDIC believes that the definition of financial 
institution appropriately captures both large and small entities 
engaged in the core financial activities that the FDIC believes should 
be addressed by the definition and associated deductions from capital. 
The FDIC believes, however, that the modification to the 
``predominantly engaged'' test, should serve to alleviate some of the 
burdens with which the commenters who made this point were concerned.
    Consistent with the proposal, investments in the capital of 
unconsolidated financial institutions that are held indirectly 
(indirect exposures) are subject to deduction. Under the proposal, a 
banking organization's entire investment in, for example, a registered 
investment company would have been subject to deduction from capital. 
Although those entities are excluded from the definition of financial 
institution in the interim final rule unless the ownership threshold is 
met, any holdings in the capital instruments of financial institutions 
held indirectly through investment funds are subject to deduction from 
capital. More generally, and as described later in this section of the 
preamble, the interim final rule provides an explicit mechanism for 
calculating the amount of an indirect investment subject to deduction.
f. The Corresponding Deduction Approach
    The proposals incorporated the Basel III corresponding deduction 
approach for the deductions from regulatory capital related to 
reciprocal crossholdings, non-significant investments in the capital of 
unconsolidated financial institutions, and non-common stock significant 
investments in the capital of unconsolidated financial institutions. 
Under the proposal, a banking organization would have been required to 
make any such deductions from the same component of capital for which 
the underlying instrument would qualify if it were issued by the 
banking organization itself. If a banking organization did not have a 
sufficient amount of a specific regulatory capital component against 
which to effect the deduction, the shortfall would have been deducted 
from the next higher (that is, more subordinated) regulatory

[[Page 55383]]

capital component. For example, if a banking organization did not have 
enough additional tier 1 capital to satisfy the required deduction, the 
shortfall would be deducted from common equity tier 1 capital elements.
    Under the proposal, if the banking organization invested in an 
instrument issued by an financial institution that is not a regulated 
financial institution, the banking organization would have treated the 
instrument as common equity tier 1 capital if the instrument is common 
stock (or if it is otherwise the most subordinated form of capital of 
the financial institution) and as additional tier 1 capital if the 
instrument is subordinated to all creditors of the financial 
institution except common shareholders. If the investment is in the 
form of an instrument issued by a regulated financial institution and 
the instrument does not meet the criteria for any of the regulatory 
capital components for banking organizations, the banking organization 
would treat the instrument as: (1) Common equity tier 1 capital if the 
instrument is common stock included in GAAP equity or represents the 
most subordinated claim in liquidation of the financial institution; 
(2) additional tier 1 capital if the instrument is GAAP equity and is 
subordinated to all creditors of the financial institution and is only 
senior in liquidation to common shareholders; and (3) tier 2 capital if 
the instrument is not GAAP equity but it is considered regulatory 
capital by the primary supervisor of the financial institution.
    Some commenters sought clarification on whether, under the 
corresponding deduction approach, TruPS would be deducted from tier 1 
or tier 2 capital. In response to these comments the FDIC has revised 
the interim final rule to clarify the deduction treatment for 
investments of non-qualifying capital instruments, including TruPS, 
under the corresponding deduction approach. The interim final rule 
includes a new paragraph section 22(c)(2)(iii) to provide that if an 
investment is in the form of a non-qualifying capital instrument 
described in section 300(d) of the interim final rule, the FDIC-
supervised institution must treat the instrument as a: (1) tier 1 
capital instrument if it was included in the issuer's tier 1 capital 
prior to May 19, 2010; or (2) tier 2 capital instrument if it was 
included in the issuer's tier 2 capital (but not eligible for inclusion 
in the issuer's tier 1 capital) prior to May 19, 2010.
    In addition, to avoid a potential circularity issue (related to the 
combined impact of the treatment of ALLL and the risk-weight treatment 
for threshold items that are not deducted from common equity tier 1 
capital) in the calculation of common equity tier 1 capital, the 
interim final rule clarifies that FDIC-supervised institutions must 
apply any deductions under the corresponding deduction approach 
resulting from insufficient amounts of a specific regulatory capital 
component after applying any deductions from the items subject to the 
10 and 15 percent common equity tier 1 capital deduction thresholds 
discussed further below. This was accomplished by removing proposed 
paragraph 22(c)(2)(i) from the corresponding deduction approach section 
and inserting paragraph 22(f). Under section 22(f) of the interim final 
rule, and as noted above, if an FDIC-supervised institution does not 
have a sufficient amount of a specific component of capital to effect 
the required deduction under the corresponding deduction approach, the 
shortfall must be deducted from the next higher (that is, more 
subordinated) component of regulatory capital.
g. Reciprocal Crossholdings in the Capital Instruments of Financial 
Institutions
    A reciprocal crossholding results from a formal or informal 
arrangement between two financial institutions to swap, exchange, or 
otherwise intend to hold each other's capital instruments. The use of 
reciprocal crossholdings of capital instruments to artificially inflate 
the capital positions of each of the financial institutions involved 
would undermine the purpose of regulatory capital, potentially 
affecting the stability of such financial institutions as well as the 
financial system.
    Under the agencies' general risk-based capital rules, reciprocal 
crossholdings of capital instruments of FDIC-supervised institutions 
are deducted from regulatory capital. Consistent with Basel III, the 
proposal would have required a banking organization to deduct 
reciprocal crossholdings of capital instruments of other financial 
institutions using the corresponding deduction approach. The interim 
final rule maintains this treatment.
h. Investments in the FDIC-Supervised Institution's Own Capital 
Instruments or in the Capital of Unconsolidated Financial Institutions
    In the interim final rule, the FDIC made several non-substantive 
changes to the wording in the proposal to clarify that the amount of an 
investment in the FDIC-supervised institution's own capital instruments 
or in the capital of unconsolidated financial institutions is the net 
long position (as calculated under section 22(h) of the interim final 
rule) of such investments. The interim final rule also clarifies how to 
calculate the net long position of these investments, especially for 
the case of indirect exposures. It is the net long position that is 
subject to deduction. In addition, the interim final rule generally 
harmonizes the recognition of hedging for own capital instruments and 
for investments in the capital of unconsolidated financial 
institutions. Under the interim final rule, an investment in an FDIC-
supervised institution's own capital instrument is deducted from 
regulatory capital and an investment in the capital of an 
unconsolidated financial institution is subject to deduction from 
regulatory capital if such investment exceeds certain thresholds.
    An investment in the capital of an unconsolidated financial 
institution refers to the net long position (calculated in accordance 
with section 22(h) of the interim final rule) in an instrument that is 
recognized as capital for regulatory purposes by the primary supervisor 
of an unconsolidated regulated financial institution or in an 
instrument that is part of GAAP equity of an unconsolidated unregulated 
financial institution. It includes direct, indirect, and synthetic 
exposures to capital instruments, and excludes underwriting positions 
held by an FDIC-supervised institution for fewer than five business 
days.
    An investment in the FDIC-supervised institution's own capital 
instrument means a net long position calculated in accordance with 
section 22(h) of the interim final rule in the FDIC-supervised 
institution's own common stock instrument, own additional tier 1 
capital instrument or own tier 2 capital instrument, including direct, 
indirect or synthetic exposures to such capital instruments. An 
investment in the FDIC-supervised institution's own capital instrument 
includes any contractual obligation to purchase such capital 
instrument.
    The interim final rule also clarifies that the gross long position 
for an investment in the FDIC-supervised institution's own capital 
instrument or the capital of an unconsolidated financial institution 
that is an equity exposure refers to the adjusted carrying value 
(determined in accordance with section 51(b) of the interim final 
rule). For the case of an investment in the FDIC-supervised 
institution's own capital instrument or the capital of an 
unconsolidated financial institution that is not an equity exposure, 
the gross long position is defined as the exposure amount (determined 
in accordance with section 2 of the interim final rule).

[[Page 55384]]

    Under the proposal, the agencies included the methodology for the 
recognition of hedging and for the calculation of the net long position 
regarding investments in the banking organization's own capital 
instruments and in investments in the capital of unconsolidated 
financial institutions in the definitions section. However, such 
methodology appears in section 22 of the interim final rule as the FDIC 
believes it is more appropriate to include it in the adjustments and 
deductions to regulatory capital section.
    The interim final rule provides that the net long position is the 
gross long position in the underlying instrument (including covered 
positions under the market risk rule) net of short positions in the 
same instrument where the maturity of the short position either matches 
the maturity of the long position or has a residual maturity of at 
least one year. An FDIC-supervised institution may only net a short 
position against a long position in the FDIC-supervised institution's 
own capital instrument if the short position involves no counterparty 
credit risk. The long and short positions in the same index without a 
maturity date are considered to have matching maturities. If both the 
long position and the short position do not have contractual maturity 
dates, then the positions are considered maturity-matched. For 
positions that are reported on an FDIC-supervised institution's 
regulatory report as trading assets or trading liabilities, if the 
FDIC-supervised institution has a contractual right or obligation to 
sell a long position at a specific point in time, and the counterparty 
to the contract has an obligation to purchase the long position if the 
FDIC-supervised institution exercises its right to sell, this point in 
time may be treated as the maturity of the long position. Therefore, if 
these conditions are met, the maturity of the long position and the 
short position would be deemed to be matched even if the maturity of 
the short position is less than one year.
    Gross long positions in own capital instruments or in the capital 
instruments of unconsolidated financial institutions resulting from 
positions in an index may be netted against short positions in the same 
underlying index. Short positions in indexes that are hedging long cash 
or synthetic positions may be decomposed to recognize the hedge. More 
specifically, the portion of the index that is composed of the same 
underlying exposure that is being hedged may be used to offset the long 
position, provided both the exposure being hedged and the short 
position in the index are trading assets or trading liabilities, and 
the hedge is deemed effective by the FDIC-supervised institution's 
internal control processes, which the FDIC has found not to be 
inadequate.
    An indirect exposure results from an FDIC-supervised institution's 
investment in an investment fund that has an investment in the FDIC-
supervised institution's own capital instrument or the capital of an 
unconsolidated financial institution. A synthetic exposure results from 
an FDIC-supervised institution's investment in an instrument where the 
value of such instrument is linked to the value of the FDIC-supervised 
institution's own capital instrument or a capital instrument of a 
financial institution. Examples of indirect and synthetic exposures 
include: (1) An investment in the capital of an investment fund that 
has an investment in the capital of an unconsolidated financial 
institution; (2) a total return swap on a capital instrument of the 
FDIC-supervised institution or another financial institution; (3) a 
guarantee or credit protection, provided to a third party, related to 
the third party's investment in the capital of another financial 
institution; (4) a purchased call option or a written put option on the 
capital instrument of another financial institution; (5) a forward 
purchase agreement on the capital of another financial institution; and 
(6) a trust preferred security collateralized debt obligation (TruPS 
CDO).
    Investments, including indirect and synthetic exposures, in the 
capital of unconsolidated financial institutions are subject to the 
corresponding deduction approach if they surpass certain thresholds 
described below. With the prior written approval of the FDIC, for the 
period of time stipulated by the supervisor, an FDIC-supervised 
institution is not required to deduct investments in the capital of 
unconsolidated financial institutions described in this section if the 
investment is made in connection with the FDIC-supervised institution 
providing financial support to a financial institution in distress, as 
determined by the supervisor. Likewise, an FDIC-supervised institution 
that is an underwriter of a failed underwriting can request approval 
from the FDIC to exclude underwriting positions related to such failed 
underwriting held for longer than five days.
    Some commenters requested clarification that a long position and 
short hedging position are considered ``maturity matched'' if (1) the 
maturity period of the short position extends beyond the maturity 
period of the long position or (2) both long and short positions mature 
or terminate within the same calendar quarter. The FDIC notes that they 
concur with these commenters' interpretation of the maturity matching 
of long and short hedging positions.
    For purposes of calculating the net long position in the capital of 
an unconsolidated financial institution, several commenters expressed 
concern that allowing banking organizations to net gross long positions 
with short positions only where the maturity of the short position 
either matches the maturity of the long position or has a maturity of 
at least one year is not practical, as some exposures, such as cash 
equities, have no maturity. These commenters expressed concern that 
such a maturity requirement could result in banking organizations 
deducting equities held as hedges for equity swap transactions with a 
client, making the latter transactions uneconomical and resulting in 
disruptions to market activity. Similarly, these commenters argued that 
providing customer accommodation equity swaps could become burdensome 
as a strict reading of the proposal could affect the ability of banking 
organizations to offset the equity swap with the long equity position 
because the maturity of the equity swap is typically less than one 
year. The FDIC has considered the comments and have decided to retain 
the maturity requirement as proposed. The FDIC believes that the 
proposed maturity requirements will reduce the possibility of ``cliff 
effects'' resulting from the deduction of open equity positions when an 
FDIC-supervised institution is unable to replace the hedge or sell the 
long equity position.
i. Indirect Exposure Calculations
    The proposal provided that an indirect exposure would result from a 
banking organization's investment in an unconsolidated entity that has 
an exposure to a capital instrument of a financial institution, while a 
synthetic exposure would result from the banking organization's 
investment in an instrument where the value of such instrument is 
linked to the value of a capital instrument of a financial institution. 
With the exception of index securities, the proposal did not, however, 
provide a mechanism for calculating the amount of the indirect exposure 
that is subject to deduction. The interim final rule clarifies the 
methodologies for calculating the net long position related to an 
indirect exposure (which is subject to deduction under the interim 
final rule) by

[[Page 55385]]

providing a methodology for calculating the gross long position of such 
indirect exposure. The FDIC believes that the options provided in the 
interim final rule will provide FDIC-supervised institutions with 
increased clarity regarding the treatment of indirect exposures, as 
well as increased risk-sensitivity to the FDIC-supervised institution's 
actual potential exposure.
    In order to limit the potential difficulties in determining whether 
an unconsolidated entity in fact holds the FDIC-supervised 
institution's own capital or the capital of unconsolidated financial 
institutions, the interim final rule also provides that the indirect 
exposure requirements only apply when the FDIC-supervised institution 
holds an investment in an investment fund, as defined in the rule. 
Accordingly, an FDIC-supervised institution invested in, for example, a 
commercial company is not required to determine whether the commercial 
company has any holdings of the FDIC-supervised institution's own 
capital or the capital instruments of financial institutions.
    The interim final rule provides that an FDIC-supervised institution 
may determine that its gross long position is equivalent to its 
carrying value of its investment in an investment fund that holds the 
FDIC-supervised institution's own capital or that holds an investment 
in the capital of an unconsolidated financial institution, which would 
be subject to deduction according to section 324.22(c). Recognizing, 
however, that the FDIC-supervised institution's exposure to those 
capital instruments may be less than its carrying value of its 
investment in the investment fund, the interim final rule provides two 
alternatives for calculating the gross long position of an indirect 
exposure. For an indirect exposure resulting from a position in an 
index, an FDIC-supervised institution may, with the prior approval of 
the FDIC, use a conservative estimate of the amount of its investment 
in its own capital instruments or the capital instruments of other 
financial institutions. If the investment is held through an investment 
fund, an FDIC-supervised institution may use a look-through approach 
similar to the approach used for risk weighting equity exposures to 
investment funds. Under this approach, an FDIC-supervised institution 
may multiply the carrying value of its investment in an investment fund 
by either the exact percentage of the FDIC-supervised institution's own 
capital instrument or capital instruments of unconsolidated financial 
institutions held by the investment fund or by the highest stated 
prospectus limit for such investments held by the investment fund. 
Accordingly, if an FDIC-supervised institution with a carrying value of 
$10,000 for its investment in an investment fund knows that the 
investment fund has invested 30 percent of its assets in the capital of 
financial institutions, then the FDIC-supervised institution could 
subject $3,000 (the carrying value times the percentage invested in the 
capital of financial institutions) to deduction from regulatory 
capital. The FDIC believes that the approach is flexible and benefits 
an FDIC-supervised institution that obtains and maintains information 
about its investments through investment funds. It also provides a 
simpler calculation method for an FDIC-supervised institution that 
either does not have information about the holdings of the investment 
fund or chooses not to do the more complex calculation.
j. Non-significant Investments in the Capital of Unconsolidated 
Financial Institutions
    The proposal provided that non-significant investments in the 
capital of unconsolidated financial institutions would be the net long 
position in investments where a banking organization owns 10 percent or 
less of the issued and outstanding common stock of an unconsolidated 
financial institution.
    Under the proposal, if the aggregate amount of a banking 
organization's non-significant investments in the capital of 
unconsolidated financial institutions exceeds 10 percent of the sum of 
the banking organization's own common equity tier 1 capital, minus 
certain applicable deductions and other regulatory adjustments to 
common equity tier 1 capital (the 10 percent threshold for non-
significant investments), the banking organization would have been 
required to deduct the amount of the non-significant investments that 
are above the 10 percent threshold for non-significant investments, 
applying the corresponding deduction approach.\90\
---------------------------------------------------------------------------

    \90\ The regulatory adjustments and deductions applied in the 
calculation of the 10 percent threshold for non-significant 
investments are those required under sections 22(a) through 22(c)(3) 
of the proposal. That is, the required deductions and adjustments 
for goodwill and other intangibles (other than MSAs) net of 
associated DTLs (when the banking organization has elected to net 
DTLs in accordance with section 22(e)), DTAs that arise from net 
operating loss and tax credit carryforwards net of related valuation 
allowances and DTLs (in accordance with section 22(e)), cash-flow 
hedges associated with items that are not recognized at fair value 
on the balance sheet, excess ECLs (for advanced approaches banking 
organizations only), gains-on-sale on securitization exposures, 
gains and losses due to changes in own credit risk on financial 
liabilities measured at fair value, defined benefit pension fund net 
assets for banking organizations that are not insured by the FDIC 
(net of associated DTLs in accordance with section 22(e)), 
investments in own regulatory capital instruments (not deducted as 
treasury stock), and reciprocal crossholdings.
---------------------------------------------------------------------------

    Under the proposal, the amount to be deducted from a specific 
capital component would be equal to the amount of a banking 
organization's non-significant investments in the capital of 
unconsolidated financial institutions exceeding the 10 percent 
threshold for non-significant investments multiplied by the ratio of: 
(1) The amount of non-significant investments in the capital of 
unconsolidated financial institutions in the form of such capital 
component to (2) the amount of the banking organization's total non-
significant investments in the capital of unconsolidated financial 
institutions. The amount of a banking organization's non-significant 
investments in the capital of unconsolidated financial institutions 
that does not exceed the 10 percent threshold for non-significant 
investments would, under the proposal, generally be assigned the 
applicable risk weight under section 32 or section 131, as applicable 
(in the case of non-common stock instruments), section 52 or section 
152, as applicable (in the case of common stock instruments), or 
section 53, section 154, as applicable (in the case of indirect 
investments via an investment fund), or, in the case of a covered 
position, in accordance with subpart F, as applicable.
    One commenter requested clarification that a banking organization 
would not have to take a ``double deduction'' for an investment made in 
unconsolidated financial institutions held through another 
unconsolidated financial institution in which the banking organization 
has invested. The FDIC notes that, under the interim final rule, where 
an FDIC-supervised institution has an investment in an unconsolidated 
financial institution (Institution A) and Institution A has an 
investment in another unconsolidated financial institution (Institution 
B), the FDIC-supervised institution would not be deemed to have an 
indirect investment in Institution B for purposes of the interim final 
rule's capital thresholds and deductions because the FDIC-supervised 
institution's investment in Institution A is already subject to capital 
thresholds and deductions. However, if an FDIC-supervised institution 
has an investment in an investment fund that does not meet the 
definition of a financial institution, it must consider

[[Page 55386]]

the assets of the investment fund to be indirect holdings.
    Some commenters requested clarification that the deductions for 
non-significant investments in the capital of unconsolidated financial 
institutions may be net of associated DTLs. The FDIC has clarified in 
the interim final rule that an FDIC-supervised institution must deduct 
the net long position in non-significant investments in the capital of 
unconsolidated financial institutions, net of associated DTLs in 
accordance with section 324.22(e) of the interim final rule, that 
exceeds the 10 percent threshold for non-significant investments. Under 
section 324.22(e) of the interim final rule, the netting of DTLs 
against assets that are subject to deduction or fully deducted under 
section 324.22 of the interim final rule is permitted but not required.
    Other commenters asked the agencies to confirm that the proposal 
would not require that investments in TruPS CDOs be treated as 
investments in the capital of unconsolidated financial institutions, 
but rather treat the investments as securitization exposures. The FDIC 
believes that investments in TruPS CDOs are synthetic exposures to the 
capital of unconsolidated financial institutions and are thus subject 
to deduction. Under the interim final rule, any amounts of TruPS CDOs 
that are not deducted are subject to the securitization treatment.
k. Significant Investments in the Capital of Unconsolidated Financial 
Institutions That Are Not in the Form of Common Stock
    Under the proposal, a significant investment in the capital of an 
unconsolidated financial institution would be the net long position in 
an investment where a banking organization owns more than 10 percent of 
the issued and outstanding common stock of the unconsolidated financial 
institution. Significant investments in the capital of unconsolidated 
financial institutions that are not in the form of common stock are 
investments where the banking organization owns capital of an 
unconsolidated financial institution that is not in the form of common 
stock in addition to 10 percent of the issued and outstanding common 
stock of that financial institution. Such a non-common stock investment 
would be deducted by applying the corresponding deduction approach. 
Significant investments in the capital of unconsolidated financial 
institutions that are in the form of common stock would be subject to 
10 and 15 percent common equity tier 1 capital threshold deductions 
described below in this section.
    A number of commenters sought clarification as to whether under 
section 22(c) of the proposal, a banking organization may deduct any 
significant investments in the capital of unconsolidated financial 
institutions that are not in the form of common stock net of associated 
DTLs. The interim final rule clarifies that such deductions may be net 
of associated DTLs in accordance with paragraph 324.22(e) of the 
interim final rule. Other than this revision, the interim final rule 
adopts the proposed rule.
    More generally, commenters also sought clarification on the 
treatment of investments in the capital of unconsolidated financial 
institutions (for example, the distinction between significant and non-
significant investments). Thus, the chart below summarizes the 
treatment of investments in the capital of unconsolidated financial 
institutions.
BILLING CODE 6714-01-P

[[Page 55387]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.000

BILLING CODE 6714-01-C

[[Page 55388]]

l. Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital 
Threshold Deductions
    Under the proposal, a banking organization would have deducted from 
the sum of its common equity tier 1 capital elements the amount of each 
of the following items that individually exceeds the 10 percent common 
equity tier 1 capital deduction threshold described below: (1) DTAs 
arising from temporary differences that could not be realized through 
net operating loss carrybacks (net of any related valuation allowances 
and net of DTLs, as described in section 22(e) of the proposal); (2) 
MSAs, net of associated DTLs in accordance with section 22(e) of the 
proposal; and (3) significant investments in the capital of 
unconsolidated financial institutions in the form of common stock 
(referred to herein as items subject to the threshold deductions).
    Under the proposal, a banking organization would have calculated 
the 10 percent common equity tier 1 capital deduction threshold by 
taking 10 percent of the sum of a banking organization's common equity 
tier 1 elements, less adjustments to, and deductions from common equity 
tier 1 capital required under sections 22(a) through (c) of the 
proposal.
    As mentioned above in section V.B, under the proposal banking 
organizations would have been required to deduct from common equity 
tier 1 capital any goodwill embedded in the valuation of significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock. A banking organization would have been 
allowed to reduce the investment amount of such significant investment 
by the goodwill embedded in such investment. For example, if a banking 
organization has deducted $10 of goodwill embedded in a $100 
significant investment in the capital of an unconsolidated financial 
institution in the form of common stock, the banking organization would 
be allowed to reduce the investment amount of such significant 
investment by the amount of embedded goodwill (that is, the value of 
the investment would be $90 for purposes of the calculation of the 
amount that would be subject to deduction under this part of the 
proposal).
    In addition, under the proposal the aggregate amount of the items 
subject to the threshold deductions that are not deducted as a result 
of the 10 percent common equity tier 1 capital deduction threshold 
described above must not exceed 15 percent of a banking organization's 
common equity tier 1 capital, as calculated after applying all 
regulatory adjustments and deductions required under the proposal (the 
15 percent common equity tier 1 capital deduction threshold). That is, 
a banking organization would have been required to deduct in full the 
amounts of the items subject to the threshold deductions on a combined 
basis that exceed 17.65 percent (the proportion of 15 percent to 85 
percent) of common equity tier 1 capital elements, less all regulatory 
adjustments and deductions required for the calculation of the 10 
percent common equity tier 1 capital deduction threshold mentioned 
above, and less the items subject to the 10 and 15 percent deduction 
thresholds. As described below, the proposal required a banking 
organization to include the amounts of these three items that are not 
deducted from common equity tier 1 capital in its risk-weighted assets 
and assign a 250 percent risk weight to them.
    Some commenters asserted that subjecting DTAs resulting from net 
unrealized losses in an investment portfolio to the proposed 10 percent 
common equity tier 1 capital deduction threshold under section 22(d) of 
the proposal would result in a ``double deduction'' in that the net 
unrealized losses would have already been included in common equity 
tier 1 through the AOCI treatment. Under GAAP, net unrealized losses 
recognized in AOCI are reported net of tax effects (that is, taxes that 
give rise to DTAs). The tax effects related to net unrealized losses 
would reduce the amount of net unrealized losses reflected in common 
equity tier 1 capital. Given that the tax effects reduce the losses 
that would otherwise accrue to common equity tier 1 capital, the FDIC 
is of the view that subjecting these DTAs to the 10 percent limitation 
would not result in a ``double deduction.''
    More generally, several commenters noted that the proposed 10 and 
15 percent common equity tier 1 capital deduction thresholds and the 
proposed 250 percent risk-weight are unduly punitive. Commenters 
recommended several alternatives including, for example, that the 
agencies should only retain the 10 percent limit on each threshold item 
but eliminate the 15 percent aggregate limit. The FDIC believes that 
the proposed thresholds are appropriate as they increase the quality 
and loss-absorbency of regulatory capital, and are therefore adopting 
the proposed deduction thresholds as final. The FDIC realizes that 
these stricter limits on threshold items may require FDIC-supervised 
institutions to make appropriate changes in their capital structure or 
business model, and thus have provided a lengthy transition period to 
allow FDIC-supervised institutions to adequately plan for the new 
limits.
    Under section 475 of the Federal Deposit Insurance Corporation 
Improvement Act of 1991 (FDICIA) (12 U.S.C. 1828 note), the amount of 
readily marketable purchased mortgage servicing rights (PMSRs) that a 
banking organization may include in regulatory capital cannot be more 
than 90 percent of their fair value. In addition to this statutory 
requirement, the general risk-based capital rules require the same 
treatment for all MSAs, including PMSRs. Under the proposed rule, if 
the amount of MSAs a banking organization deducts after applying the 10 
percent and 15 percent common equity tier 1 deduction threshold is less 
than 10 percent of the fair value of its MSAs, then the banking 
organization would have deducted an additional amount of MSAs so that 
the total amount of MSAs deducted is at least 10 percent of the fair 
value of its MSAs.
    Some commenters requested removal of the 90 percent MSA fair value 
limitation, including for PMSRs under FDICIA. These commenters note 
that section 475(b) of FDICIA provides the agencies with authority to 
remove the 90 percent limitation on PMSRs, subject to a joint 
determination by the agencies that its removal would not have an 
adverse effect on the deposit insurance fund or the safety and 
soundness of insured depository institutions. The commenters asserted 
that removal of the 90 percent limitation would be appropriate because 
other provisions of the proposal pertaining to MSAs (including PMSRs) 
would require more capital to be retained even if the fair value 
limitation were removed.
    The FDIC agrees with these commenters and, pursuant to section 
475(b) of FDICIA, has determined that PMSRs may be valued at not more 
than 100 percent of their fair value, because the capital treatment of 
PMSRs in the interim final rule (specifically, the deduction approach 
for MSAs (including PMSRs) exceeding the 10 and 15 common equity 
deduction thresholds and the 250 percent risk weight applied to all 
MSAs not subject to deduction) is more conservative than the FDICIA 
fair value limitation and the 100 percent risk weight applied to MSAs 
under existing rules and such approach will not have an adverse effect 
on the deposit insurance fund or safety and soundness of insured 
depository institutions. For the same reasons, the

[[Page 55389]]

FDIC is also removing the 90 percent fair value limitation for all 
other MSAs.
    Commenters also provided a variety of recommendations related to 
the proposed limitations on the inclusion of MSAs in regulatory 
capital. For instance, some commenters advocated removing the proposed 
deduction provision for hedged and commercial and multifamily-related 
MSAs, as well as requested an exemption from the proposed deduction 
requirement for community banking organizations with less than $10 
billion.
    Other commenters recommended increasing the amount of MSAs 
includable in regulatory capital. For example, one commenter 
recommended that MSAs should be limited to 100 percent of tier l 
capital if the underlying loans are prudently underwritten. Another 
commenter requested that the interim final rule permit thrifts and 
commercial banking organizations to include in regulatory capital MSAs 
equivalent to 50 and 25 percent of tier 1 capital, respectively.
    Several commenters also objected to the proposed risk weights for 
MSAs, asserting that a 250 percent risk weight for an asset that is 
marked-to-fair value quarterly is unreasonably punitive and that a 100 
percent risk weight should apply; that MSAs allowable in capital should 
be increased, at a minimum, to 30 percent of tier 1 capital, with a 
risk weight of no greater than 50 percent for existing MSAs; that 
commercial MSAs should continue to be subject to the risk weighting and 
deduction methodology under the general risk-based capital rules; and 
that originated MSAs should retain the same risk weight treatment under 
the general risk-based capital rules given that the ability to 
originate new servicing to replace servicing lost to prepayment in a 
falling-rate environment provides for a substantial hedge. Another 
commenter recommended that the agencies grandfather all existing MSAs 
that are being fair valued on banking organizations' balance sheets and 
exclude MSAs from the proposed 15 percent deduction threshold.
    After considering these comments, the FDIC is adopting the proposed 
limitation on MSAs includable in common equity tier 1 capital without 
change in the interim final rule. MSAs, like other intangible assets, 
have long been either fully or partially excluded from regulatory 
capital in the United States because of the high level of uncertainty 
regarding the ability of FDIC-supervised institutions to realize value 
from these assets, especially under adverse financial conditions.
m. Netting of Deferred Tax Liabilities Against Deferred Tax Assets and 
Other Deductible Assets
    Under the proposal, banking organizations would have been permitted 
to net DTLs against assets (other than DTAs) subject to deduction under 
section 22 of the proposal, provided the DTL is associated with the 
asset and the DTL would be extinguished if the associated asset becomes 
impaired or is derecognized under GAAP. Likewise, banking organizations 
would be prohibited from using the same DTL more than once for netting 
purposes. This practice would be generally consistent with the approach 
that the agencies currently take with respect to the netting of DTLs 
against goodwill.
    With respect to the netting of DTLs against DTAs, under the 
proposal the amount of DTAs that arise from net operating loss and tax 
credit carryforwards, net of any related valuation allowances, and the 
amount of DTAs arising from temporary differences that the banking 
organization could not realize through net operating loss carrybacks, 
net of any related valuation allowances, could be netted against DTLs 
if certain conditions are met.
    The agencies received numerous comments recommending changes to and 
seeking clarification on various aspects of the proposed treatment of 
deferred taxes. Certain commenters asked whether deductions of 
significant and non-significant investments in the capital of 
unconsolidated financial institutions under section 22(c)(4) and 
22(c)(5) of the proposed rule may be net of associated DTLs. A 
commenter also recommended that a banking organization be permitted to 
net a DTA against a fair value measurement or similar adjustment to an 
asset (for example, in the case of a certain cash-flow hedges) or a 
liability (for example, in the case of changes in the fair value of a 
banking organization's liabilities attributed to changes in the banking 
organization's own credit risk) that is associated with the adjusted 
value of the asset or liability that itself is subject to a capital 
adjustment or deduction under the Basel III NPR. These DTAs would be 
derecognized under GAAP if the adjustment were reversed. Accordingly, 
one commenter recommended that proposed text in section 22(e) be 
revised to apply to netting of DTAs as well as DTLs.
    The FDIC agrees that for regulatory capital purposes, an FDIC-
supervised institution may exclude from the deduction thresholds DTAs 
and DTLs associated with fair value measurement or similar adjustments 
to an asset or liability that are excluded from common equity tier 1 
capital under the interim final rule. The FDIC notes that GAAP requires 
net unrealized gains and losses \91\ recognized in AOCI to be recorded 
net of deferred tax effects. Moreover, under the FDIC's general risk-
based capital rules and associated regulatory reporting instructions, 
FDIC-supervised institutions must deduct certain net unrealized gains, 
net of applicable taxes, and add back certain net unrealized losses, 
again, net of applicable taxes. Permitting FDIC-supervised institutions 
to exclude net unrealized gains and losses included in AOCI without 
netting of deferred tax effects would cause an FDIC-supervised 
institution to overstate the amount of net unrealized gains and losses 
excluded from regulatory capital and potentially overstate or 
understate deferred taxes included in regulatory capital.
---------------------------------------------------------------------------

    \91\ The word ``net'' in the term ``net unrealized gains and 
losses'' refers to the netting of gains and losses before tax.
---------------------------------------------------------------------------

    Accordingly, under the interim final rule, FDIC-supervised 
institutions must make all adjustments to common equity tier 1 capital 
under section 22(b) of the interim final rule net of any associated 
deferred tax effects. In addition, FDIC-supervised institutions may 
make all deductions from common equity tier 1 capital elements under 
section 324.22(c) and (d) of the interim final rule net of associated 
DTLs, in accordance with section 324.22(e) of the interim final rule.
    Commenters also sought clarification as to whether banking 
organizations may change from reporting period to reporting period 
their decision to net DTLs against DTAs as opposed to netting DTLs 
against other assets subject to deduction. Consistent with the FDIC's 
general risk-based capital rules, the interim final rule permits, but 
does not require, an FDIC-supervised institution to net DTLs associated 
with items subject to regulatory deductions from common equity tier 1 
capital under section 22(a). The FDIC's general risk-based capital 
rules do not explicitly address whether or how often an FDIC-supervised 
institution may change its DTL netting approach for items subject to 
deduction, such as goodwill and other intangible assets.
    If an FDIC-supervised institution elects to either net DTLs against 
DTAs or to net DTLs against other assets subject to deduction, the 
interim final rule requires that it must do so consistently. For 
example, an FDIC-

[[Page 55390]]

supervised institution that elects to deduct goodwill net of associated 
DTLs will be required to continue that practice for all future 
reporting periods. Under the interim final rule, an FDIC-supervised 
institution must obtain approval from the FDIC before changing its 
approach for netting DTLs against DTAs or assets subject to deduction 
under section 324.22(a), which would be permitted, for example, in 
situations where an FDIC-supervised institution merges with or acquires 
another FDIC-supervised institution, or upon a substantial change in an 
FDIC-supervised institution's business model.
    Commenters also asked whether banking organizations would be 
permitted or required to exclude (from the amount of DTAs subject to 
the threshold deductions under section 22(d) of the proposal) deferred 
tax assets and liabilities relating to net unrealized gains and losses 
reported in AOCI that are subject to: (1) regulatory adjustments to 
common equity tier 1 capital (section 22(b) of the proposal), (2) 
deductions from regulatory capital related to investments in capital 
instruments (section 22(c) of the proposal), and (3) items subject to 
the 10 and 15 percent common equity tier 1 capital deduction thresholds 
(section 22(d) of the proposal).
    Under the FDIC's general risk-based capital rules, before 
calculating the amount of DTAs subject to the DTA limitations for 
inclusion in tier 1 capital, an FDIC-supervised institution may 
eliminate the deferred tax effects of any net unrealized gains and 
losses on AFS debt securities. An FDIC-supervised institution that 
adopts a policy to eliminate such deferred tax effects must apply that 
approach consistently in all future calculations of the amount of 
disallowed DTAs.
    For purposes of the interim final rule, the FDIC has decided to 
permit FDIC-supervised institutions to eliminate from the calculation 
of DTAs subject to threshold deductions under section 324.22(d) of the 
interim final rule the deferred tax effects associated with any items 
that are subject to regulatory adjustment to common equity tier 1 
capital under section 324.22(b). An FDIC-supervised institution that 
elects to eliminate such deferred tax effects must continue that 
practice consistently from period to period. An FDIC-supervised 
institution must obtain approval from the FDIC before changing its 
election to exclude or not exclude these amounts from the calculation 
of DTAs. Additionally, the FDIC has decided to require DTAs associated 
with any net unrealized losses or differences between the tax basis and 
the accounting basis of an asset pertaining to items (other than those 
items subject to adjustment under section 324.22(b)) that are: (1) 
subject to deduction from common equity tier 1 capital under section 
324.22(c) or (2) subject to the threshold deductions under section 
324.22(d) to be subject to the threshold deductions under section 
324.22(d) of the interim final rule.
    Commenters also sought clarification as to whether banking 
organizations would be required to compute DTAs and DTLs quarterly for 
regulatory capital purposes. In this regard, commenters stated that 
GAAP requires annual computation of DTAs and DTLs, and that more 
frequent computation requirements for regulatory capital purposes would 
be burdensome.
    Some DTA and DTL items must be adjusted at least quarterly, such as 
DTAs and DTLs associated with certain gains and losses included in 
AOCI. Therefore, the FDIC expects FDIC-supervised institutions to use 
the DTA and DTL amounts reported in the regulatory reports for balance 
sheet purposes to be used for regulatory capital calculations. The 
interim final rule does not require FDIC-supervised institutions to 
perform these calculations more often than would otherwise be required 
in order to meet quarterly regulatory reporting requirements.
    A few commenters also asked whether the agencies would continue to 
allow banking organizations to use DTLs embedded in the carrying value 
of a leveraged lease to reduce the amount of DTAs subject to the 10 
percent and 15 percent common equity tier 1 capital deduction 
thresholds contained in section 22(d) of the proposal. The valuation of 
a leveraged lease acquired in a business combination gives recognition 
to the estimated future tax effect of the remaining cash-flows of the 
lease. Therefore, any future tax liabilities related to an acquired 
leveraged lease are included in the valuation of the leveraged lease, 
and are not separately reported under GAAP as DTLs. This can 
artificially increase the amount of net DTAs reported by banking 
organizations that acquire a leveraged lease portfolio under purchase 
accounting. Accordingly, the agencies' currently allow banking 
organizations to treat future taxes payable included in the valuation 
of a leveraged lease portfolio as a reversing taxable temporary 
difference available to support the recognition of DTAs.\92\ The 
interim final rule amends the proposal by explicitly permitting an 
FDIC-supervised institution to use the DTLs embedded in the carrying 
value of a leveraged lease to reduce the amount of DTAs consistent with 
section 22(e).
---------------------------------------------------------------------------

    \92\ Temporary differences arise when financial events or 
transactions are recognized in one period for financial reporting 
purposes and in another period, or periods, for tax purposes. A 
reversing taxable temporary difference is a temporary difference 
that produces additional taxable income future periods.
---------------------------------------------------------------------------

    In addition, commenters asked the agencies to clarify whether a 
banking organization is required to deduct from the sum of its common 
equity tier 1 capital elements net DTAs arising from timing differences 
that the banking organization could realize through net operating loss 
carrybacks. The FDIC confirms that under the interim final rule, DTAs 
that arise from temporary differences that the FDIC-supervised 
institution may realize through net operating loss carrybacks are not 
subject to the 10 percent and 15 percent common equity tier 1 capital 
deduction thresholds (deduction thresholds). This is consistent with 
the FDIC's general risk-based capital rules, which do not limit DTAs 
that can potentially be realized from taxes paid in prior carryback 
years. However, consistent with the proposal, the interim final rule 
requires that FDIC-supervised institutions deduct from common equity 
tier 1 capital elements the amount of DTAs arising from temporary 
differences that the FDIC-supervised institution could not realize 
through net operating loss carrybacks that exceed the deduction 
thresholds under section 324.22(d) of the interim final rule.
    Some commenters recommended that the agencies retain the provision 
in the agencies' general risk-based capital rules that permits a 
banking organization to measure the amount of DTAs subject to inclusion 
in tier 1 capital by the amount of DTAs that the banking organization 
could reasonably be expected to realize within one year, based on its 
estimate of future taxable income.\93\ In addition, commenters argued 
that the full deduction of net operating loss and tax credit 
carryforwards from common equity tier 1 capital is an inappropriate 
reaction to concerns about DTAs as an element of capital, and that 
there are appropriate circumstances where an

[[Page 55391]]

institution should be allowed to include the value of its DTAs related 
to net operating loss carryforwards in regulatory capital.
---------------------------------------------------------------------------

    \93\ Under the FDIC's general risk-based capital rules, a 
banking organization generally must deduct from tier 1 capital DTAs 
that are dependent upon future taxable income, which exceed the 
lesser of either: (1) the amount of DTAs that the bank could 
reasonably expect to realize within one year of the quarter-end 
regulatory report, based on its estimate of future taxable income 
for that year, or (2) 10 percent of tier 1 capital, net of goodwill 
and all intangible assets other than purchased credit card 
relationships, and servicing assets. See 12 CFR part 325, appendix A 
section I.A.1.iii(a) (state nonmember banks), and 12 CFR 
390.465(a)(2)(vii) (state savings associations).
---------------------------------------------------------------------------

    The deduction thresholds for DTAs in the interim final rule are 
intended to address the concern that GAAP standards for DTAs could 
allow FDIC-supervised institutions to include in regulatory capital 
excessive amounts of DTAs that are dependent upon future taxable 
income. The concern is particularly acute when FDIC-supervised 
institutions begin to experience financial difficulty. In this regard, 
the FDIC observed that as the recent financial crisis began, many FDIC-
supervised institutions that had included DTAs in regulatory capital 
based on future taxable income were no longer able to do so because 
they projected more than one year of losses for tax purposes.
    The FDIC notes that under the proposal and interim final rule, DTAs 
that arise from temporary differences that the FDIC-supervised 
institution may realize through net operating loss carrybacks are not 
subject to the deduction thresholds and will be subject to a risk 
weight of 100 percent. Further, FDIC-supervised institutions will 
continue to be permitted to include some or all of their DTAs that are 
associated with timing differences that are not realizable through net 
operating loss carrybacks in regulatory capital. In this regard, the 
interim final rule strikes an appropriate balance between prudential 
concerns and practical considerations about the ability of FDIC-
supervised institutions to realize DTAs.
    The proposal stated: ``A [BANK] is not required to deduct from the 
sum of its common equity tier 1 capital elements net DTAs arising from 
timing differences that the [BANK] could realize through net operating 
loss carrybacks (emphasis added).'' \94\ Commenters requested that the 
agencies clarify that the word ``net'' in this sentence was intended to 
refer to DTAs ``net of valuation allowances.'' The FDIC has amended 
section 22(e) of the interim final rule text to clarify that the word 
``net'' in this instance was intended to refer to DTAs ``net of any 
related valuation allowances and net of DTLs.''
---------------------------------------------------------------------------

    \94\ See footnote 14, 77 FR 52863 (August 30, 2012).
---------------------------------------------------------------------------

    In addition, a commenter requested that the agencies remove the 
condition in section 324.22(e) of the interim final rule providing that 
only DTAs and DTLs that relate to taxes levied by the same taxing 
authority may be offset for purposes of the deduction of DTAs. This 
commenter notes that under a GAAP, a company generally calculates its 
DTAs and DTLs relating to state income tax in the aggregate by applying 
a blended state rate. Thus, FDIC-supervised institutions do not 
typically track DTAs and DTLs on a state-by-state basis for financial 
reporting purposes.
    The FDIC recognizes that under GAAP, if the tax laws of the 
relevant state and local jurisdictions do not differ significantly from 
federal income tax laws, then the calculation of deferred tax expense 
can be made in the aggregate considering the combination of federal, 
state, and local income tax rates. The rate used should consider 
whether amounts paid in one jurisdiction are deductible in another 
jurisdiction. For example, since state and local taxes are deductible 
for federal purposes, the aggregate combined rate would generally be 
(1) the federal tax rate plus (2) the state and local tax rates, minus 
(3) the federal tax effect of the deductibility of the state and local 
taxes at the federal tax rate. Also, for financial reporting purposes, 
consistent with GAAP, the FDIC allows FDIC-supervised institutions to 
offset DTAs (net of valuation allowance) and DTLs related to a 
particular tax jurisdiction. Moreover, for regulatory reporting 
purposes, consistent with GAAP, the FDIC requires separate calculations 
of income taxes, both current and deferred amounts, for each tax 
jurisdiction. Accordingly, FDIC-supervised institutions must calculate 
DTAs and DTLs on a state-by-state basis for financial reporting 
purposes under GAAP and for regulatory reporting purposes.
3. Investments in Hedge Funds and Private Equity Funds Pursuant to 
Section 13 of the Bank Holding Company Act
    Section 13 of the Bank Holding Company Act, which was added by 
section 619 of the Dodd-Frank Act, contains a number of restrictions 
and other prudential requirements applicable to any ``banking entity'' 
\95\ that engages in proprietary trading or has certain interests in, 
or relationships with, a hedge fund or a private equity fund.\96\
---------------------------------------------------------------------------

    \95\ See 12 U.S.C. 1851. The term ``banking entity'' is defined 
in section 13(h)(1) of the Bank Holding Company Act, as amended by 
section 619 of the Dodd-Frank Act. See 12 U.S.C. 1851(h)(1). The 
statutory definition includes any insured depository institution 
(other than certain limited purpose trust institutions), any company 
that controls an insured depository institution, any company that is 
treated as a bank holding company for purposes of section 8 of the 
International Banking Act of 1978 (12 U.S.C. 3106), and any 
affiliate or subsidiary of any of the foregoing.
    \96\ Section 13 of the Bank Holding Company Act defines the 
terms ``hedge fund'' and ``private equity fund'' as ``an issuer that 
would be an investment company, as defined in the Investment Company 
Act of 1940, but for section 3(c)(1) or 3(c)(7) of that Act, or such 
similar funds as the [relevant agencies] may, by rule . . . 
determine.'' See 12 U.S.C. 1851(h)(2).
---------------------------------------------------------------------------

    Section 13(d)(3) of the Bank Holding Company Act provides that the 
relevant agencies ``shall . . . adopt rules imposing additional capital 
requirements and quantitative limitations, including diversification 
requirements, regarding activities permitted under [Section 13] if the 
appropriate Federal banking agencies, the SEC, and the Commodity 
Futures Trading Commission (CFTC) determine that additional capital and 
quantitative limitations are appropriate to protect the safety and 
soundness of banking entities engaged in such activities.'' The Dodd-
Frank Act also added section 13(d)(4)(B)(iii) to the Bank Holding 
Company Act, which pertains to investments in a hedge fund or private 
equity fund organized and offered by a banking entity and provides for 
deductions from the assets and tangible equity of the banking entity 
for these investments in hedge funds or private equity funds.
    On November 7, 2011, the agencies and the SEC issued a proposal to 
implement Section 13 of the Bank Holding Company Act.\97\ The proposal 
would require a ``banking entity'' to deduct from tier 1 capital its 
investments in a hedge fund or a private equity fund that the banking 
entity organizes and offers.\98\ The FDIC intends to address this 
capital requirement, as it applies to FDIC-supervised institutions, 
within the context of its entire regulatory capital framework, so that 
its potential interaction with all other regulatory capital 
requirements can be fully assessed.
---------------------------------------------------------------------------

    \97\ See 76 FR 68846 (November 7, 2011). On February 14, 2012, 
the CFTC published a substantively similar proposed rule 
implementing section 13 of the Bank Holding Company Act. See 77 FR 
8332 (February 14, 2012).
    \98\ See Id., Sec.  324.12(d).
---------------------------------------------------------------------------

VI. Denominator Changes Related to the Regulatory Capital Changes

    Consistent with Basel III, the proposal provided a 250 percent risk 
weight for the portion of the following items that are not otherwise 
subject to deduction: (1) MSAs, (2) DTAs arising from temporary 
differences that a banking organization could not realize through net 
operating loss carrybacks (net of any related valuation allowances and 
net of DTLs, as described in section 324.22(e)

[[Page 55392]]

of the rule), and (3) significant investments in the capital of 
unconsolidated financial institutions in the form of common stock that 
are not deducted from tier 1 capital.
    Several commenters objected to the proposed 250 percent risk weight 
and stated that the agencies instead should apply a 100 percent risk 
weight to the amount of these assets below the deduction thresholds. 
Commenters stated that the relatively high risk weight would drive 
business, particularly mortgage servicing, out of the banking sector 
and into unregulated shadow banking entities.
    After considering the comments, the FDIC continues to believe that 
the 250 percent risk weight is appropriate in light of the relatively 
greater risks inherent in these assets, as described above. These risks 
are sufficiently significant that concentrations in these assets 
warrant deductions from capital, and any exposure to these assets 
merits a higher-than 100 percent risk weight. Therefore, the interim 
final rule adopts the proposed treatment without change.
    The interim final rule, consistent with the proposal, requires 
FDIC-supervised institutions to apply a 1,250 percent risk weight to 
certain exposures that were subject to deduction under the general 
risk-based capital rules. Therefore, for purposes of calculating total 
risk-weighted assets, the interim final rule requires an FDIC-
supervised institution to apply a 1,250 percent risk weight to the 
portion of a credit-enhancing interest-only strip (CEIO) that does not 
constitute an after-tax-gain-on-sale.

VII. Transition Provisions

    The proposal established transition provisions for: (i) minimum 
regulatory capital ratios; (ii) capital conservation and 
countercyclical capital buffers; (iii) regulatory capital adjustments 
and deductions; (iv) non-qualifying capital instruments; and (v) the 
supplementary leverage ratio. Most of the transition periods in the 
proposal began on January 1, 2013, and would have provided banking 
organizations between three and six years to comply with the 
requirements in the proposed rule. Among other provisions, the proposal 
would have provided a transition period for the phase-out of non-
qualifying capital instruments from regulatory capital under either a 
three- or ten-year transition period based on the organization's 
consolidated total assets. The proposed transition provisions were 
designed to give banking organizations sufficient time to adjust to the 
revised capital framework while minimizing the potential impact that 
implementation could have on their ability to lend. The transition 
provisions also were designed to ensure compliance with the Dodd-Frank 
Act. As a result, they would have been, in certain circumstances, more 
stringent than the transition arrangements set forth in Basel III.
    The agencies received multiple comments on the proposed transition 
framework. Most of the commenters characterized the proposed transition 
schedule for the minimum capital ratios as overly aggressive and 
expressed concern that banking organizations would not be able to meet 
the increased capital requirements (in accordance with the transition 
schedule) in the current economic environment. Commenters representing 
community banking organizations argued that such organizations 
generally have less access to the capital markets relative to larger 
banking organizations and, therefore, usually increase capital 
primarily by accumulating retained earnings. Accordingly, these 
commenters requested additional time to satisfy the minimum capital 
requirements under the proposed rule, and specifically asked the 
agencies to provide banking organizations until January 1, 2019 to 
comply with the proposed minimum capital requirements. Other commenters 
commenting on behalf of community banking organizations, however, 
considered the transition period reasonable. One commenter requested a 
shorter implementation timeframe for the largest banking organizations, 
asserting that these organizations already comply with the proposed 
standards. Another commenter suggested removing the transition period 
and delaying the effective date until the industry more fully recovers 
from the recent crisis. According to this commenter, the effective date 
should be delayed to ensure that implementation of the rule would not 
result in a contraction in aggregate U.S. lending capacity.
    A number of commenters suggested an effective date based on the 
publication date of the interim final rule in the Federal Register. 
According to the commenters, such an approach would provide banking 
organizations with certainty regarding the effective date of the 
interim final rule that would allow them to plan for and implement any 
required system and process changes. One commenter requested 
simultaneous implementation of all three proposals because some 
elements of the Standardized Approach NPR affect the implementation of 
the Basel III NPR. A number of commenters also requested additional 
time to comply with the proposed capital conservation buffer. According 
to these commenters, implementation of the capital conservation buffer 
would make the equity instruments of banking organizations less 
attractive to potential investors and could even encourage divestment 
among existing shareholders. Therefore, the commenters maintained, the 
proposed rule would require banking organizations to raise capital by 
accumulating retained earnings, and doing so could take considerable 
time in the current economic climate. For these reasons, the commenters 
asked the agencies to delay implementation of the capital conservation 
buffer for an additional five years to provide banking organizations 
sufficient time to increase retained earnings without curtailing 
lending activity. Other commenters requested that the agencies fully 
exempt banks with total consolidated assets of $50 billion or less from 
the capital conservation buffer, further recommending that if the 
agencies declined to make this accommodation then the phase-in period 
for the capital conservation buffer should be extended by at least 
three years to January 1, 2022, to provide community banking 
organizations with enough time to meet the new regulatory minimums.
    A number of commenters noted that Basel III phases in the deduction 
of goodwill from 2014 to 2018, and requested that the agencies adopt 
this transition for goodwill in the United States to prevent U.S. 
institutions from being disadvantaged relative to their global 
competitors.
    Many commenters objected to the proposed schedule for the phase out 
of TruPS from tier 1 capital, particularly for banking organizations 
with less than $15 billion in total consolidated assets. As discussed 
in more detail in section V.A., the commenters requested that the 
agencies grandfather existing TruPS issued by depository institution 
holding companies with less than $15 billion and 2010 MHCs, as 
permitted by section 171 of the Dodd-Frank Act. In general, these 
commenters characterized TruPS as a relatively safe, low-cost form of 
capital issued in full compliance with regulatory requirements that 
would be difficult for smaller institutions to replace in the current 
economic environment. Some commenters requested that community banking 
organizations be exempt from the phase-out of TruPS and from the phase-
out of cumulative preferred stock for these reasons. Another commenter 
requested that the agencies propose that institutions with under $5 
billion in total consolidated assets be allowed to continue to include 
TruPS in regulatory

[[Page 55393]]

capital at full value until the call or maturity of the TruPS 
instrument.
    Some commenters encouraged the agencies to adopt the ten-year 
transition schedule under Basel III for TruPS of banking organizations 
with total consolidated assets of more than $15 billion. These 
commenters asserted that the proposed transition framework for TruPS 
would disadvantage U.S. banking organizations relative to foreign 
competitors. One commenter expressed concern that the transition 
framework under the proposed rule also would disrupt payment schedules 
for TruPS CDOs.
    Commenters proposed several additional alternative transition 
frameworks for TruPS. For example, one commenter recommended a 10 
percent annual reduction in the amount of TruPS banking organizations 
with $15 billion or more of total consolidated assets may recognize in 
tier 1 capital beginning in 2013, followed by a phase-out of the 
remaining amount in 2015. According to the commenter, such a framework 
would comply with the Dodd-Frank Act and allow banking organizations 
more time to replace TruPS. Another commenter suggested that the 
interim final rule allow banking organizations to progressively reduce 
the amount of TruPS eligible for inclusion in tier 1 capital by 1.25 to 
2.5 percent per year. One commenter encouraged the agencies to avoid 
penalizing banking organizations that elect to redeem TruPS during the 
transition period. Specifically, the commenter asked the agencies to 
revise the proposed transition framework so that any TruPS redeemed 
during the transition period would not reduce the total amount of TruPS 
eligible for inclusion in tier 1 capital. Under such an approach, the 
amount of TruPS eligible for inclusion in tier 1 capital during the 
transition period would equal the lesser of: (a) the remaining 
outstanding balance or (b) the percentage decline factor times the 
balance outstanding at the time the interim final rule is published in 
the Federal Register.
    One commenter encouraged the agencies to allow a banking 
organization that grows to more than $15 billion in total assets as a 
result of merger and acquisition activity to remain subject to the 
proposed transition framework for non-qualifying capital instruments 
issued by organizations with less than $15 billion in total assets. 
According to the commenter, such an approach should apply to either the 
buyer or seller in the transaction. Other commenters asked the agencies 
to allow banking organizations whose total consolidated assets grew to 
over $15 billion just prior to May 19, 2010, and whose asset base 
subsequently declined below that amount to include all TruPS in their 
tier 1 capital during 2013 and 2014 on the same basis as institutions 
with less than $15 billion in total consolidated assets and, 
thereafter, be subject to the deductions required by section 171 of the 
Dodd-Frank Act.
    Commenters representing advanced approaches banking organizations 
generally objected to the proposed transition framework for the 
supplementary leverage ratio, and requested a delay in its 
implementation. For example, one commenter recommended the agencies 
defer implementation of the supplementary leverage ratio until the 
agencies have had an opportunity to consider whether it is likely to 
result in regulatory arbitrage and international competitive inequality 
as a result of differences in national accounting frameworks and 
standards. Another commenter asked the agencies to delay implementation 
of the supplementary leverage ratio until no earlier than January 1, 
2018, as provided in Basel III, or until the BCBS completes its 
assessment and reaches international agreement on any further 
adjustments. A few commenters, however, supported the proposed 
transition framework for the supplementary leverage ratio because it 
could be used as an important regulatory tool to ensure there is 
sufficient capital in the financial system.
    After considering the comments and the potential challenges some 
banking organizations may face in complying with the interim final 
rule, the FDIC has agreed to delay the compliance date for FDIC-
supervised institutions that are not advanced approaches FDIC-
supervised institutions until January 1, 2015. Therefore, such entities 
are not required to calculate their regulatory capital requirements 
under the interim final rule until January 1, 2015. Thereafter, these 
FDIC-supervised institutions must calculate their regulatory capital 
requirements in accordance with the interim final rule, subject to the 
transition provisions set forth in subpart G of the interim final rule.
    The interim final rule also establishes the effective date of the 
interim final rule for advanced approaches FDIC-supervised institutions 
as January 1, 2014. In accordance with Tables 5-17 below, the 
transition provisions for the regulatory capital adjustments and 
deductions in the interim final rule commence either one or two years 
later than in the proposal, depending on whether the FDIC-supervised 
institution is or is not an advanced approaches FDIC-supervised 
institution. The December 31, 2018, end-date for the transition period 
for regulatory capital adjustments and deductions is the same under the 
interim final rule as under the proposal.

A. Transitions Provisions for Minimum Regulatory Capital Ratios

    In response to the commenters' concerns, the interim final rule 
modifies the proposed transition provisions for the minimum capital 
requirements. FDIC-supervised institutions that are not advanced 
approaches FDIC-supervised institutions are not required to comply with 
the minimum capital requirements until January 1, 2015. This is a delay 
of two years from the beginning of the proposed transition period. 
Because the FDIC is not requiring compliance with the interim final 
rule until January 1, 2015 for these entities, there is no additional 
transition period for the minimum regulatory capital ratios. This 
approach should give FDIC-supervised institutions sufficient time to 
raise or accumulate any additional capital needed to satisfy the new 
minimum requirements and upgrade internal systems without adversely 
affecting their lending capacity.
    Under the interim final rule, an advanced approaches FDIC-
supervised institution must comply with minimum common equity tier 1, 
tier 1, and total capital ratio requirements of 4.0 percent, 5.5 
percent, and 8.0 percent during calendar year 2014, and 4.5 percent, 
6.0 percent, 8.0 percent, respectively, beginning January 1, 2015. 
These transition provisions are consistent with those under Basel III 
for internationally-active FDIC-supervised institutions. During 
calendar year 2014, advanced approaches FDIC-supervised institutions 
must calculate their minimum common equity tier 1, tier 1, and total 
capital ratios using the definitions for the respective capital 
components in section 20 of the interim final rule (adjusted in 
accordance with the transition provisions for regulatory adjustments 
and deductions and for the non-qualifying capital instruments for 
advanced approaches FDIC-supervised institutions described in this 
section).

B. Transition Provisions for Capital Conservation and Countercyclical 
Capital Buffers

    The FDIC has finalized transitions for the capital conservation and 
countercyclical capital buffers as proposed. The capital conservation 
buffer transition period begins in 2016,

[[Page 55394]]

a full year after FDIC-supervised institutions that are not advanced 
approaches FDIC-supervised institutions are required to comply with the 
interim final rule, and two years after advanced approaches FDIC-
supervised institutions are required to comply with the interim final 
rule. The FDIC believes that this is an adequate time frame to meet the 
buffer level necessary to avoid restrictions on capital distributions. 
Table 5 shows the regulatory capital levels advanced approaches FDIC-
supervised institutions generally must satisfy to avoid limitations on 
capital distributions and discretionary bonus payments during the 
applicable transition period, from January 1, 2016 until January 1, 
2019.

                                 Table 5--Regulatory Capital Levels for Advanced Approaches FDIC-Supervised Institutions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Jan. 1, 2014    Jan. 1, 2015    Jan. 1, 2016    Jan. 1, 2017    Jan. 1, 2018    Jan. 1, 2019
                                                             (percent)       (percent)       (percent)       (percent)       (percent)       (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Capital conservation buffer.............................  ..............  ..............           0.625            1.25           1.875             2.5
Minimum common equity tier 1 capital ratio + capital                 4.0             4.5           5.125            5.75           6.375             7.0
 conservation buffer....................................
Minimum tier 1 capital ratio + capital conservation                  5.5             6.0           6.625            7.25           7.875             8.5
 buffer.................................................
Minimum total capital ratio + capital conservation                   8.0             8.0           8.625            9.25           9.875            10.5
 buffer.................................................
Maximum potential countercyclical capital buffer........  ..............  ..............           0.625            1.25           1.875             2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 6 shows the regulatory capital levels FDIC-supervised 
institutions that are not advanced approaches FDIC-supervised 
institutions generally must satisfy to avoid limitations on capital 
distributions and discretionary bonus payments during the applicable 
transition period, from January 1, 2016 until January 1, 2019.

           Table 6--Regulatory Capital Levels for Non-Advanced Approaches FDIC-Supervised Institutions
----------------------------------------------------------------------------------------------------------------
                                   Jan. 1, 2015    Jan. 1, 2016    Jan. 1, 2017    Jan. 1, 2018    Jan. 1, 2019
                                     (percent)       (percent)       (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Capital conservation buffer.....  ..............           0.625            1.25           1.875             2.5
Minimum common equity tier 1                 4.5           5.125            5.75           6.375             7.0
 capital ratio + capital
 conservation buffer............
Minimum tier 1 capital ratio +               6.0           6.625            7.25           7.875             8.5
 capital conservation buffer....
Minimum total capital ratio +                8.0           8.625            9.25           9.875            10.5
 capital conservation buffer....
----------------------------------------------------------------------------------------------------------------

    As provided in Table 5 and Table 6, the transition period for the 
capital conservation and countercyclical capital buffers does not begin 
until January 1, 2016. During this transition period, from January 1, 
2016 through December 31, 2018, all FDIC-supervised institutions are 
subject to transition arrangements with respect to the capital 
conservation buffer as outlined in more detail in Table 7. For advanced 
approaches FDIC-supervised institutions, the countercyclical capital 
buffer will be phased in according to the transition schedule set forth 
in Table 7 by proportionately expanding each of the quartiles of the 
capital conservation buffer.

          Table 7--Transition Provision for the Capital Conservation and Countercyclical Capital Buffer
----------------------------------------------------------------------------------------------------------------
                                               Capital conservation    Maximum payout ratio (as a percentage of
             Transition period                        buffer                   eligible retained income)
----------------------------------------------------------------------------------------------------------------
Calendar year 2016.........................  Greater than 0.625       No payout ratio limitation applies
                                              percent (plus 25
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    60 percent
                                              0.625 percent (plus 25
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.469 percent
                                              (plus 18.75 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    40 percent
                                              0.469 percent (plus
                                              18.75 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.313 percent
                                              (plus 12.5 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    20 percent
                                              0.313 percent (plus
                                              12.5 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.156 percent
                                              (plus 6.25 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    0 percent
                                              0.156 percent (plus
                                              6.25 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).
----------------------------------------------------------------------------------------------------------------
Calendar year 2017.........................  Greater than 1.25        No payout ratio limitation applies
                                              percent (plus 50
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).

[[Page 55395]]

 
                                             Less than or equal to    60 percent
                                              1.25 percent (plus 50
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.938 percent
                                              (plus 37.5 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    40 percent
                                              0.938 percent (plus
                                              37.5 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.625 percent
                                              (plus 25 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    20 percent
                                              0.625 percent (plus 25
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.313 percent
                                              (plus 12.5 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    0 percent
                                              0.313 percent (plus
                                              12.5 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).
----------------------------------------------------------------------------------------------------------------
Calendar year 2018.........................  Greater than 1.875       No payout ratio limitation applies
                                              percent (plus 75
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    60 percent
                                              1.875 percent (plus 75
                                              percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 1.406 percent
                                              (plus 56.25 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    40 percent
                                              1.406 percent (plus
                                              56.25 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.938 percent
                                              (plus 37.5 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    20 percent
                                              0.938 percent (plus
                                              37.5 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer
                                              amount), and greater
                                              than 0.469 percent
                                              (plus 18.75 percent of
                                              any applicable
                                              countercyclical
                                              capital buffer amount).
                                             Less than or equal to    0 percent
                                              0.469 percent (plus
                                              18.75 percent of any
                                              applicable
                                              countercyclical
                                              capital buffer amount).
----------------------------------------------------------------------------------------------------------------

C. Transition Provisions for Regulatory Capital Adjustments and 
Deductions

    To give sufficient time to FDIC-supervised institutions to adapt to 
the new regulatory capital adjustments and deductions, the interim 
final rule incorporates transition provisions for such adjustments and 
deductions that commence at the time at which the FDIC-supervised 
institution becomes subject to the interim final rule. As explained 
above, the interim final rule maintains the proposed transition 
periods, except for non-qualifying capital instruments as described 
below.
    FDIC-supervised institutions that are not advanced approaches FDIC-
supervised institutions will begin the transitions for regulatory 
capital adjustments and deductions on January 1, 2015. From January 1, 
2015, through December 31, 2017, these FDIC-supervised institutions 
will be required to make the regulatory capital adjustments to and 
deductions from regulatory capital in section 324.22 of the interim 
final rule in accordance with the proposed transition provisions for 
such adjustments and deductions outlined below. Starting on January 1, 
2018, these FDIC-supervised institutions will apply all regulatory 
capital adjustments and deductions as set forth in section 324.22 of 
the interim final rule.
    For an advanced approaches FDIC-supervised institution, the first 
year of transition for adjustments and deductions begins on January 1, 
2014. From January 1, 2014, through December 31, 2017, such FDIC-
supervised institutions will be required to make the regulatory capital 
adjustments to and deductions from regulatory capital in section 22 of 
the interim final rule in accordance with the proposed transition 
provisions for such adjustments and deductions outlined below. Starting 
on January 1, 2018, advanced approaches FDIC-supervised institutions 
will be subject to all regulatory capital adjustments and deductions as 
described in section 22 of the interim final rule.
1. Deductions for Certain Items Under Section 22(a) of the Interim 
Final Rule
    The interim final rule provides that FDIC-supervised institutions 
will deduct from common equity tier 1 capital or tier 1 capital in 
accordance with Table 8 below: (1) goodwill (section 324.22(a)(1)), (2) 
DTAs that arise from operating loss and tax credit carryforwards 
(section 22(a)(3)), (3) gain-on-sale associated with a securitization 
exposure (section 324.22(a)(4)), (4) defined benefit pension fund 
assets (section 324.22(a)(5)), (5) for an advanced approaches FDIC-
supervised institution that has completed the parallel run process and 
that has received notification from the FDIC pursuant to section 121(d) 
of subpart E of the interim final rule, expected credit loss that 
exceeds eligible credit reserves (section 324.22(a)(6)), and (6) 
financial subsidiaries (section 324.22(a)(7)). During the transition 
period, the percentage of these items that is not deducted from common 
equity tier 1 capital must be deducted from tier 1 capital.

[[Page 55396]]



 Table 8--Transition Deductions Under Section 324.22(a)(1) and Sections 324.22(a)(3)-(a)(7) of the Interim Final
                                                      Rule
----------------------------------------------------------------------------------------------------------------
                                        Transition deductions         Transition deductions under sections
                                            under section                      324.22(a)(3)-(a)(6)
                                         324.22(a)(1) and (7)  -------------------------------------------------
          Transition period           -------------------------
                                          Percentage of the        Percentage of the        Percentage of the
                                        deductions from common   deductions from common   deductions from tier 1
                                        equity tier 1 capital    equity tier 1 capital           capital
----------------------------------------------------------------------------------------------------------------
January 1, 2014 to December 31, 2014                       100                       20                       80
 (advanced approaches FDIC-supervised
 institutions only)..................
January 1, 2015 to December 31, 2015.                      100                       40                       60
January 1, 2016 to December 31, 2016.                      100                       60                       40
January 1, 2017 to December 31, 2017.                      100                       80                       20
January 1, 2018 and thereafter.......                      100                      100                        0
----------------------------------------------------------------------------------------------------------------

    Beginning on January 1, 2014, advanced approaches FDIC-supervised 
institutions will be required to deduct the full amount of goodwill 
(which may be net of any associated DTLs), including any goodwill 
embedded in the valuation of significant investments in the capital of 
unconsolidated financial institutions, from common equity tier 1 
capital. All other FDIC-supervised institutions will begin deducting 
goodwill (which may be net of any associated DTLs), including any 
goodwill embedded in the valuation of significant investments in the 
capital of unconsolidated financial institutions from common equity 
tier 1 capital, on January 1, 2015. This approach is stricter than the 
Basel III approach, which transitions the goodwill deduction from 
common equity tier 1 capital through 2017. However, as discussed in 
section V.B of this preamble, under U.S. law, goodwill cannot be 
included in an FDIC-supervised institution's regulatory capital and has 
not been included in FDIC-supervised institutions' regulatory capital 
under the general risk-based capital rules.\99\ Additionally, the FDIC 
believes that fully deducting goodwill from common equity tier 1 
capital from the date an FDIC-supervised institution must comply with 
the interim final rule will result in a more appropriate measure of 
common equity tier 1 capital.
---------------------------------------------------------------------------

    \99\ See 12 U.S.C. 1464(t)(9)(A) and 12 U.S.C. 1828(n).
---------------------------------------------------------------------------

    Beginning on January 1, 2014, a national bank or insured state bank 
subject to the advanced approaches rule will be required to deduct 100 
percent of the aggregate amount of its outstanding equity investment, 
including the retained earnings, in any financial subsidiary from 
common equity tier 1 capital. All other national and insured state 
banks will begin deducting 100 percent of the aggregate amount of their 
outstanding equity investment, including the retained earnings, in a 
financial subsidiary from common equity tier 1 capital on January 1, 
2015. The deduction from common equity tier 1 capital represents a 
change from the general risk-based capital rules, which require the 
deduction to be made from total capital. As explained in section V.B of 
this preamble, similar to goodwill, this deduction is required by 
statute and is consistent with the general risk-based capital rules. 
Accordingly, the deduction is not subject to a transition period.
    The interim final rule also retains the existing deduction for 
state savings associations' investments in, and extensions of credit 
to, non-includable subsidiaries at 12 CFR 324.22(a)(8).\100\ This 
deduction is required by statute \101\ and is consistent with the 
general risk-based capital rules. Accordingly, the deduction is not 
subject to a transition period and must be fully deducted in the first 
year that the state savings association becomes subject to the interim 
final rule.
---------------------------------------------------------------------------

    \100\ For additional information on this deduction, see section 
V.B ``Activities by savings association subsidiaries that are 
impermissible for national banks'' of this preamble.
    \101\ See 12 U.S.C. 1464(t)(5).
---------------------------------------------------------------------------

2. Deductions for Intangibles Other Than Goodwill and Mortgage 
Servicing Assets
    For deductions of intangibles other than goodwill and MSAs, 
including purchased credit-card relationships (PCCRs) (see section 
324.22(a)(2) of the interim final rule), the applicable transition 
period in the interim final rule is set forth in Table 9. During the 
transition period, any of these items that are not deducted will be 
subject to a risk weight of 100 percent. Advanced approaches FDIC-
supervised institutions will begin the transition on January 1, 2014, 
and other FDIC-supervised institutions will begin the transition on 
January 1, 2015.

  Table 9--Transition Deductions Under Section 22(a)(2) of the Proposal
------------------------------------------------------------------------
                                                  Transition deductions
                                                under section 22(a)(2)--
                                                    Percentage of the
               Transition period                 deductions from common
                                                  equity tier 1 capital
 
------------------------------------------------------------------------
January 1, 2014 to December 31, 2014 (advanced                       20
 approaches FDIC-supervised institutions only)
January 1, 2015 to December 31, 2015..........                       40
January 1, 2016 to December 31, 2016..........                       60
January 1, 2017 to December 31, 2017..........                       80
January 1, 2018 and thereafter................                      100
------------------------------------------------------------------------


[[Page 55397]]

3. Regulatory Adjustments Under Section 22(b)(1) of the Interim Final 
Rule
    During the transition period, any of the adjustments required under 
section 324.22(b)(1) that are not applied to common equity tier 1 
capital must be applied to tier 1 capital instead, in accordance with 
Table 10. Advanced approaches FDIC-supervised institutions will begin 
the transition on January 1, 2014, and other FDIC-supervised 
institutions will begin the transition on January 1, 2015.

       Table 10--Transition Adjustments Under Section 324.22(b)(1)
------------------------------------------------------------------------
                                    Transition adjustments under section
                                                324.22(b)(1)
                                   -------------------------------------
                                    Percentage of the
         Transition period              adjustment     Percentage of the
                                    applied to common      adjustment
                                      equity tier 1    applied to tier 1
                                         capital            capital
------------------------------------------------------------------------
January 1, 2014, to December 31,                   20                 80
 2014 (advanced approaches FDIC-
 supervised institutions only)....
January 1, 2015, to December 31,                   40                 60
 2015.............................
January 1, 2016, to December 31,                   60                 40
 2016.............................
January 1, 2017, to December 31,                   80                 20
 2017.............................
January 1, 2018 and thereafter....                100                  0
------------------------------------------------------------------------

4. Phase-Out of Current Accumulated Other Comprehensive Income 
Regulatory Capital Adjustments
    Under the interim final rule, the transition period for the 
inclusion of the aggregate amount of: (1) Unrealized gains on 
available-for-sale equity securities; (2) net unrealized gains or 
losses on available-for-sale debt securities; (3) any amounts recorded 
in AOCI attributed to defined benefit postretirement plans resulting 
from the initial and subsequent application of the relevant GAAP 
standards that pertain to such plans (excluding, at the FDIC-supervised 
institution's option, the portion relating to pension assets deducted 
under section 324.22(a)(5)); (4) accumulated net gains or losses on 
cash-flow hedges related to items that are reported on the balance 
sheet at fair value included in AOCI; and (5) net unrealized gains or 
losses on held-to-maturity securities that are included in AOCI 
(transition AOCI adjustment amount) only applies to advanced approaches 
FDIC-supervised institutions and other FDIC-supervised institutions 
that have not made an AOCI opt-out election under section 324.22(b)(2) 
of the rule and described in section V.B of this preamble. Advanced 
approaches FDIC-supervised institutions will begin the phase out of the 
current AOCI regulatory capital adjustments on January 1, 2014; other 
FDIC-supervised institutions that have not made the AOCI opt-out 
election will begin making these adjustments on January 1, 2015. 
Specifically, if an FDIC-supervised institution's transition AOCI 
adjustment amount is positive, it will adjust its common equity tier 1 
capital by deducting the appropriate percentage of such aggregate 
amount in accordance with Table 11 below. If such amount is negative, 
it will adjust its common equity tier 1 capital by adding back the 
appropriate percentage of such aggregate amount in accordance with 
Table 11 below. The agencies did not include net unrealized gains or 
losses on held-to-maturity securities that are included in AOCI as part 
of the transition AOCI adjustment amount in the proposal. However, the 
FDIC has decided to add such an adjustment as it reflects the FDIC's 
approach towards AOCI adjustments in the general risk-based capital 
rules.

      Table 11--Percentage of the Transition AOCI Adjustment Amount
------------------------------------------------------------------------
                                                    Percentage of the
                                                     transition AOCI
               Transition period                 adjustment amount to be
                                                     applied to common
                                                  equity tier 1 capital
------------------------------------------------------------------------
January 1, 2014, to December 31, 2014 (advanced                       80
 approaches FDIC-supervised institutions only).
January 1, 2015, to December 31, 2015 (advanced                       60
 approaches FDIC-supervised institutions and
 FDIC-supervised institutions that have not
 made an opt-out election).....................
January 1, 2016, to December 31, 2016 (advanced                       40
 approaches FDIC-supervised institutions and
 FDIC-supervised institutions that have not
 made an opt-out election).....................
January 1, 2017, to December 31, 2017 (advanced                       20
 approaches FDIC-supervised institutions and
 FDIC-supervised institutions that have not
 made an opt-out election).....................
January 1, 2018 and thereafter (advanced                               0
 approaches FDIC-supervised institutions and
 FDIC-supervised institutions that have not
 made an opt-out election).....................
------------------------------------------------------------------------

    Beginning on January 1, 2018, advanced approaches FDIC-supervised 
institutions and other FDIC-supervised institutions that have not made 
an AOCI opt-out election must include AOCI in common equity tier 1 
capital, with the exception of accumulated net gains and losses on 
cash-flow hedges related to items that are not measured at fair value 
on the balance sheet, which must be excluded from common equity tier 1 
capital.
5. Phase-Out of Unrealized Gains on Available for Sale Equity 
Securities in Tier 2 Capital
    Advanced approaches FDIC-supervised institutions and FDIC-
supervised institutions not subject to the advanced approaches rule 
that have

[[Page 55398]]

not made an AOCI opt-out election will decrease the amount of 
unrealized gains on AFS preferred stock classified as an equity 
security under GAAP and AFS equity exposures currently held in tier 2 
capital during the transition period in accordance with Table 12. An 
advanced approaches FDIC-supervised institution will begin the 
adjustments on January 1, 2014; all other FDIC-supervised institutions 
that have not made an AOCI opt-out election will begin the adjustments 
on January 1, 2015.

     Table 12--Percentage of Unrealized Gains on AFS Preferred Stock
  Classified as an Equity Security Under GAAP and AFS Equity Exposures
                 That May Be Included in Tier 2 Capital
------------------------------------------------------------------------
                                 Percentage of unrealized gains on AFS
                                preferred stock classified as an equity
      Transition period           security under GAAP and AFS equity
                               exposures that may be included in tier 2
                                                capital
------------------------------------------------------------------------
January 1, 2014, to December                                         36
 31, 2014 (advanced
 approaches FDIC-supervised
 institutions only).........
January 1, 2015, to December                                         27
 31, 2015 (advanced
 approaches FDIC-supervised
 institutions and FDIC-
 supervised institutions
 that have not made an opt-
 out election)..............
January 1, 2016, to December                                         18
 31, 2016 (advanced
 approaches FDIC-supervised
 institutions and FDIC-
 supervised institutions
 that have not made an opt-
 out election)..............
January 1, 2017, to December                                          9
 31, 2017 (advanced
 approaches FDIC-supervised
 institutions and FDIC-
 supervised institutions
 that have not made an opt-
 out election)..............
January 1, 2018 and                                                   0
 thereafter (advanced
 approaches FDIC-supervised
 institutions and FDIC-
 supervised institutions
 that have not made an opt-
 out election)..............
------------------------------------------------------------------------

6. Phase-in of Deductions Related to Investments in Capital Instruments 
and to the Items Subject to the 10 and 15 Percent Common Equity Tier 1 
Capital Deduction Thresholds (Sections 22(c) and 22(d)) of the Interim 
final rule
    Under the interim final rule, an FDIC-supervised institution must 
calculate the appropriate deductions under sections 324.22(c) and 
324.22(d) of the rule related to investments in the capital of 
unconsolidated financial institutions and to the items subject to the 
10 and 15 percent common equity tier 1 capital deduction thresholds 
(that is, MSAs, DTAs arising from temporary differences that the FDIC-
supervised institution could not realize through net operating loss 
carrybacks, and significant investments in the capital of 
unconsolidated financial institutions in the form of common stock) as 
set forth in Table 13. Advanced approaches FDIC-supervised institutions 
will apply the transition framework beginning January 1, 2014. All 
other FDIC-supervised institutions will begin applying the transition 
framework on January 1, 2015. During the transition period, an FDIC-
supervised institution will make the aggregate common equity tier 1 
capital deductions related to these items in accordance with the 
percentages outlined in Table 13 and must apply a 100 percent risk-
weight to the aggregate amount of such items that is not deducted. On 
January 1, 2018, and thereafter, each FDIC-supervised institution will 
be required to apply a 250 percent risk weight to the aggregate amount 
of the items subject to the 10 and 15 percent common equity tier 1 
capital deduction thresholds that are not deducted from common equity 
tier 1 capital.

  Table 13--Transition Deductions under Sections 22(c) and 22(d) of the
                                Proposal
------------------------------------------------------------------------
                              Transition deductions under sections 22(c)
      Transition period         and 22(d)--Percentage of the deductions
                                   from common equity tier 1 capital
------------------------------------------------------------------------
January 1, 2014, to December                                         20
 31, 2014 (advanced
 approaches FDIC-supervised
 institutions only).........
January 1, 2015, to December                                         40
 31, 2015...................
January 1, 2016, to December                                         60
 31, 2016...................
January 1, 2017, to December                                         80
 31, 2017...................
January 1, 2018 and                                                 100
 thereafter.................
------------------------------------------------------------------------

    During the transition period, FDIC-supervised institutions will 
phase in the deduction requirement for the amounts of DTAs arising from 
temporary differences that could not be realized through net operating 
loss carryback, MSAs, and significant investments in the capital of 
unconsolidated financial institutions in the form of common stock that 
exceed the 10 percent threshold in section 22(d) according to Table 13.
    During the transition period, FDIC-supervised institutions will not 
be subject to the methodology to calculate the 15 percent common equity 
deduction threshold for DTAs arising from temporary differences that 
could not be realized through net operating loss carrybacks, MSAs, and 
significant investments in the capital of unconsolidated financial 
institutions in the form of common stock described in section 324.22(d) 
of the interim final rule. During the transition period, an FDIC-
supervised institution will be required to deduct from its common 
equity tier 1 capital the percentage as set forth in Table 13 of the 
amount by which the aggregate sum of the items subject to the 10 and 15 
percent common equity tier 1 capital deduction thresholds exceeds 15 
percent of the sum of the FDIC-supervised institution's common equity 
tier 1 capital after making the deductions and adjustments required 
under sections 324.22(a) through (c).

D. Transition Provisions for Non-Qualifying Capital Instruments

    Under the interim final rule, beginning on January 1, 2014, an 
advanced approaches depository institution and beginning on January 1, 
2015, a depository institution that is not a depository institution 
subject to the advanced approaches rule may include

[[Page 55399]]

in regulatory capital debt or equity instruments issued prior to 
September 12, 2010 that do not meet the criteria for additional tier 1 
or tier 2 capital instruments in section 324.20 of the interim final 
rule, but that were included in tier 1 or tier 2 capital, respectively, 
as of September 12, 2010 (non-qualifying capital instruments issued 
prior to September 12, 2010). These instruments may be included up to 
the percentage of the outstanding principal amount of such non-
qualifying capital instruments as of the effective date of the interim 
final rule in accordance with the phase-out schedule in Table 14.
    As of January 1, 2014 for advanced approaches FDIC-supervised 
institutions, and January 1, 2015 for all other FDIC-supervised 
institutions, debt or equity instruments issued after September 12, 
2010, that do not meet the criteria for additional tier 1 or tier 2 
capital instruments in section 20 of the interim final rule may not be 
included in additional tier 1 or tier 2 capital.

 Table 14--Percentage of Non-Qualifying Capital Instruments Issued Prior
 to September 12, 2010 Includable in Additional Tier 1 or Tier 2 Capital
------------------------------------------------------------------------
                                 Percentage of non-qualifying capital
 Transition period (calendar  instruments issued prior to September 2010
            year)              includable in additional tier 1 or tier 2
                               capital for FDIC-supervised institutions
------------------------------------------------------------------------
Calendar year 2014 (advanced                                         80
 approaches FDIC-supervised
 institutions only).........
Calendar year 2015..........                                         70
Calendar year 2016..........                                         60
Calendar year 2017..........                                         50
Calendar year 2018..........                                         40
Calendar year 2019..........                                         30
Calendar year 2020..........                                         20
Calendar year 2021..........                                         10
Calendar year 2022 and                                                0
 thereafter.................
------------------------------------------------------------------------

    Under the transition provisions in the interim final rule, an FDIC-
supervised institution is allowed to include in regulatory capital a 
portion of the common equity tier 1, tier 1, or total capital minority 
interest that is disqualified from regulatory capital as a result of 
the requirements and limitations outlined in section 21 (surplus 
minority interest). If an FDIC-supervised institution has surplus 
minority interest outstanding when the interim final rule becomes 
effective, that surplus minority interest will be subject to the phase-
out schedule outlined in Table 16. Advanced approaches FDIC-supervised 
institutions must begin to phase out surplus minority interest in 
accordance with Table 16 beginning on January 1, 2014. All other FDIC-
supervised institutions will begin the phase out for surplus minority 
interest on January 1, 2015.
    During the transition period, an FDIC-supervised institution will 
also be able to include in tier 1 or total capital a portion of the 
instruments issued by a consolidated subsidiary that qualified as tier 
1 or total capital of the FDIC-supervised institution on the date the 
rule becomes effective, but that do not qualify as tier 1 or total 
capital under section 324.20 of the interim final rule (non-qualifying 
minority interest) in accordance with Table 16.

Table 16--Percentage of the Amount of Surplus or Non-Qualifying Minority
   Interest Includable in Regulatory Capital During Transition Period
------------------------------------------------------------------------
                              Percentage of the amount of surplus or non-
                               qualifying minority interest that can be
      Transition period        included in regulatory capital during the
                                           transition period
------------------------------------------------------------------------
January 1, 2014, to December                                         80
 31, 2014 (advanced
 approaches FDIC-supervised
 institutions only).........
January 1, 2015, to December                                         60
 31, 2015...................
January 1, 2016, to December                                         40
 31, 2016...................
January 1, 2017, to December                                         20
 31, 2017...................
January 1, 2018 and                                                   0
 thereafter.................
------------------------------------------------------------------------

VIII. Standardized Approach for Risk-Weighted Assets

    In the Standardized Approach NPR, the agencies proposed to revise 
methodologies for calculating risk-weighted assets. As discussed above 
and in the proposal, these revisions were intended to harmonize the 
agencies' rules for calculating risk-weighted assets and to enhance 
risk sensitivity and remediate weaknesses identified over recent 
years.\102\ The proposed revisions incorporated elements of the Basel 
II standardized approach \103\ as modified by the 2009 Enhancements, 
certain aspects of Basel III, and other proposals in recent 
consultative papers published by the BCBS.\104\ Consistent with section 
939A of the Dodd-Frank Act, the agencies also proposed alternatives to 
credit ratings for calculating risk weights for certain assets.
---------------------------------------------------------------------------

    \102\ 77 FR 52888 (August 30, 2012).
    \103\ See BCBS, ``International Convergence of Capital 
Measurement and Capital Standards: A Revised Framework,'' (June 
2006), available at https://www.bis.org/publ/bcbs128.htm.
    \104\ See, e.g., ``Basel III FAQs answered by the Basel 
Committee'' (July, October, December 2011), available at https://www.bis.org/list/press_releases/index.htm; ``Capitalization of 
Banking Organization Exposures to Central Counterparties'' (December 
2010, revised November 2011) (CCP consultative release), available 
at https://www.bis.org/publ/bcbs206.pdf.

---------------------------------------------------------------------------

[[Page 55400]]

    The proposal also included potential revisions for the recognition 
of credit risk mitigation that would allow for greater recognition of 
financial collateral and a wider range of eligible guarantors. In 
addition, the proposal set forth more risk-sensitive treatments for 
residential mortgages, equity exposures and past due loans, derivatives 
and repo-style transactions cleared through CCPs, and certain 
commercial real estate exposures that typically have higher credit 
risk, as well as operational requirements for securitization exposures. 
The agencies also proposed to apply disclosure requirements to banking 
organizations with $50 billion or more in total assets that are not 
subject to the advanced approaches rule.
    The agencies received a significant number of comments regarding 
the proposed standardized approach for risk-weighted assets. Although a 
few commenters observed that the proposals would provide a sound 
framework for determining risk-weighted assets for all banking 
organizations that would generally benefit U.S. banking organizations, 
a significant number of other commenters asserted that the proposals 
were too complex and burdensome, especially for smaller banking 
organizations, and some argued that it was inappropriate to apply the 
proposed requirements to such banking organizations because such 
institutions did not cause the recent financial crisis. Other 
commenters expressed concern that the new calculation for risk-weighted 
assets would adversely affect banking organizations' regulatory capital 
ratios and that smaller banking organizations would have difficulties 
obtaining the data and performing the calculations required by the 
proposals. A number of commenters also expressed concern about the 
burden of the proposals in the context of multiple new regulations, 
including new standards for mortgages and increased regulatory capital 
requirements generally. One commenter urged the agencies to maintain 
key aspects of the proposed risk-weighted asset treatment for community 
banking organizations, but generally requested that the agencies reduce 
the perceived complexity. The FDIC has considered these comments and, 
where applicable, have focused on simplicity, comparability, and broad 
applicability of methodologies for U.S. banking organizations under the 
standardized approach.
    Some commenters asked that the proposed requirements be optional 
for community banking organizations until the effects of the proposals 
have been studied, or that the proposed standardized approach be 
withdrawn entirely. A number of the commenters requested specific 
modifications to the proposals. For example, some requested an 
exemption for community banking organizations from the proposed due 
diligence requirements for securitization exposures. Other commenters 
requested that the agencies grandfather the risk weighting of existing 
loans, arguing that doing so would lessen the proposed rule's 
implementation burden.
    To address commenters' concerns about the standardized approach's 
burden and the accessibility of credit, the FDIC has revised elements 
of the proposed rule, as described in further detail below. In 
particular, the FDIC has modified the proposed approach to risk 
weighting residential mortgage loans to reflect the approach in the 
FDIC's general risk-based capital rules. The FDIC believes the 
standardized approach more accurately captures the risk of banking 
organizations' assets and, therefore, is applying this aspect of the 
interim final rule to all banking organizations subject to the rule.
    This section of the preamble describes in detail the specific 
proposals for the standardized treatment of risk-weighted assets, 
comments received on those proposals, and the provisions of the interim 
final rule in subpart D as adopted by the FDIC. These sections of the 
preamble discuss how subpart D of the interim final rule differs from 
the general risk-based capital rules, and provides examples for how an 
FDIC-supervised institution must calculate risk-weighted asset amounts 
under the interim final rule.
    Beginning on January 1, 2015, all FDIC-supervised institutions will 
be required to calculate risk-weighted assets under subpart D of the 
interim final rule. Until then, FDIC-supervised institutions must 
calculate risk-weighted assets using the methodologies set forth in the 
general risk-based capital rules. Advanced approaches FDIC-supervised 
institutions are subject to additional requirements, as described in 
section III. D of this preamble, regarding the timeframe for 
implementation.

A. Calculation of Standardized Total Risk-Weighted Assets

    Consistent with the Standardized Approach NPR, the interim final 
rule requires an FDIC-supervised institution to calculate its risk-
weighted asset amounts for its on- and off-balance sheet exposures and, 
for market risk banks only, standardized market risk-weighted assets as 
determined under subpart F.\105\ Risk-weighted asset amounts generally 
are determined by assigning on-balance sheet assets to broad risk-
weight categories according to the counterparty, or, if relevant, the 
guarantor or collateral. Similarly, risk-weighted asset amounts for 
off-balance sheet items are calculated using a two-step process: (1) 
Multiplying the amount of the off-balance sheet exposure by a credit 
conversion factor (CCF) to determine a credit equivalent amount, and 
(2) assigning the credit equivalent amount to a relevant risk-weight 
category.
---------------------------------------------------------------------------

    \105\ This interim final rule incorporates the market risk rule 
into the integrated regulatory framework as subpart F of part 324.
---------------------------------------------------------------------------

    An FDIC-supervised institution must determine its standardized 
total risk-weighted assets by calculating the sum of (1) its risk-
weighted assets for general credit risk, cleared transactions, default 
fund contributions, unsettled transactions, securitization exposures, 
and equity exposures, each as defined below, plus (2) market risk-
weighted assets, if applicable, minus (3) the amount of the FDIC-
supervised institution's ALLL that is not included in tier 2 capital, 
and any amounts of allocated transfer risk reserves.

B. Risk-Weighted Assets for General Credit Risk

    Consistent with the proposal, under the interim final rule total 
risk-weighted assets for general credit risk equals the sum of the 
risk-weighted asset amounts as calculated under section 324.31(a) of 
the interim final rule. General credit risk exposures include an FDIC-
supervised institution's on-balance sheet exposures (other than cleared 
transactions, default fund contributions to CCPs, securitization 
exposures, and equity exposures, each as defined in section 2 of the 
interim final rule), exposures to over-the-counter (OTC) derivative 
contracts, off-balance sheet commitments, trade and transaction-related 
contingencies, guarantees, repo-style transactions, financial standby 
letters of credit, forward agreements, or other similar transactions.
    Under the interim final rule, the exposure amount for the on-
balance sheet component of an exposure is generally the FDIC-supervised 
institution's carrying value for the exposure as determined under GAAP. 
The FDIC believes that using GAAP to determine the amount and nature of 
an exposure provides a consistent framework that can be easily applied 
across all FDIC-supervised institutions. Generally, FDIC-supervised 
institutions already use GAAP to prepare their financial statements and 
regulatory reports, and this treatment reduces potential burden that 
could otherwise result from requiring FDIC-supervised institutions to 
comply with a separate

[[Page 55401]]

set of accounting and measurement standards for risk-based capital 
calculation purposes under non-GAAP standards, such as regulatory 
accounting practices or legal classification standards.
    For purposes of the definition of exposure amount for AFS or held-
to-maturity debt securities and AFS preferred stock not classified as 
equity under GAAP that are held by an FDIC-supervised institution that 
has made an AOCI opt-out election, the exposure amount is the FDIC-
supervised institution's carrying value (including net accrued but 
unpaid interest and fees) for the exposure, less any net unrealized 
gains, and plus any net unrealized losses. For purposes of the 
definition of exposure amount for AFS preferred stock classified as an 
equity security under GAAP that is held by a banking organization that 
has made an AOCI opt-out election, the exposure amount is the banking 
organization's carrying value (including net accrued but unpaid 
interest and fees) for the exposure, less any net unrealized gains that 
are reflected in such carrying value but excluded from the banking 
organization's regulatory capital.
    In most cases, the exposure amount for an off-balance sheet 
component of an exposure is determined by multiplying the notional 
amount of the off-balance sheet component by the appropriate CCF as 
determined under section 324.33 of the interim final rule. The exposure 
amount for an OTC derivative contract or cleared transaction is 
determined under sections 34 and 35, respectively, of the interim final 
rule, whereas exposure amounts for collateralized OTC derivative 
contracts, collateralized cleared transactions, repo-style 
transactions, and eligible margin loans are determined under section 
324.37 of the interim final rule.
1. Exposures to Sovereigns
    Consistent with the proposal, the interim final rule defines a 
sovereign as a central government (including the U.S. government) or an 
agency, department, ministry, or central bank of a central government. 
In the Standardized Approach NPR, the agencies proposed to retain the 
general risk-based capital rules' risk weights for exposures to and 
claims directly and unconditionally guaranteed by the U.S. government 
or its agencies. The interim final rule adopts the proposed treatment 
and provides that exposures to the U.S. government, its central bank, 
or a U.S. government agency and the portion of an exposure that is 
directly and unconditionally guaranteed by the U.S. government, the 
U.S. central bank, or a U.S. government agency receive a zero percent 
risk weight.\106\ Consistent with the general risk-based capital rules, 
the portion of a deposit or other exposure insured or otherwise 
unconditionally guaranteed by the FDIC or the National Credit Union 
Administration also is assigned a zero percent risk weight. An exposure 
conditionally guaranteed by the U.S. government, its central bank, or a 
U.S. government agency receives a 20 percent risk weight.\107\ This 
includes an exposure that is conditionally guaranteed by the FDIC or 
the National Credit Union Administration.
---------------------------------------------------------------------------

    \106\ Similar to the general risk-based capital rules, a claim 
would not be considered unconditionally guaranteed by a central 
government if the validity of the guarantee is dependent upon some 
affirmative action by the holder or a third party, for example, 
asset servicing requirements. See 12 CFR part 325, appendix A, 
section II.C. (footnote 35) (state nonmember banks) and 12 CFR 
390.466 (state savings associations).
    \107\ Loss-sharing agreements entered into by the FDIC with 
acquirers of assets from failed institutions are considered 
conditional guarantees for risk-based capital purposes due to 
contractual conditions that acquirers must meet. The guaranteed 
portion of assets subject to a loss-sharing agreement may be 
assigned a 20 percent risk weight. Because the structural 
arrangements for these agreements vary depending on the specific 
terms of each agreement, FDIC-supervised institutions should consult 
with the FDIC to determine the appropriate risk-based capital 
treatment for specific loss-sharing agreements.
---------------------------------------------------------------------------

    The agencies proposed in the Standardized Approach NPR to revise 
the risk weights for exposures to foreign sovereigns. The agencies' 
general risk-based capital rules generally assign risk weights to 
direct exposures to sovereigns and exposures directly guaranteed by 
sovereigns based on whether the sovereign is a member of the 
Organization for Economic Co-operation and Development (OECD) and, as 
applicable, whether the exposure is unconditionally or conditionally 
guaranteed by the sovereign.\108\
---------------------------------------------------------------------------

    \108\ 12 CFR part 325, appendix A, section II.C (state nonmember 
banks) and 12 CFR 390.466 (state savings associations).
---------------------------------------------------------------------------

    Under the proposed rule, the risk weight for a foreign sovereign 
exposure would have been determined using OECD Country Risk 
Classifications (CRCs) (the CRC methodology).\109\ The CRCs reflect an 
assessment of country risk, used to set interest rate charges for 
transactions covered by the OECD arrangement on export credits. The CRC 
methodology classifies countries into one of eight risk categories (0-
7), with countries assigned to the zero category having the lowest 
possible risk assessment and countries assigned to the 7 category 
having the highest possible risk assessment. Using CRCs to risk weight 
sovereign exposures is an option that is included in the Basel II 
standardized framework. The agencies proposed to map risk weights 
ranging from 0 percent to 150 percent to CRCs in a manner consistent 
with the Basel II standardized approach, which provides risk weights 
for foreign sovereigns based on country risk scores.
---------------------------------------------------------------------------

    \109\ For more information on the OECD country risk 
classification methodology, see OECD, ``Country Risk 
Classification,'' available at https://www.oecd.org/document/49/0,3746,en_2649_34169_1901105_1_1_1_1,00.html.
---------------------------------------------------------------------------

    The agencies also proposed to assign a 150 percent risk weight to 
foreign sovereign exposures immediately upon determining that an event 
of sovereign default has occurred or if an event of sovereign default 
has occurred during the previous five years. The proposal defined 
sovereign default as noncompliance by a sovereign with its external 
debt service obligations or the inability or unwillingness of a 
sovereign government to service an existing loan according to its 
original terms, as evidenced by failure to pay principal or interest 
fully and on a timely basis, arrearages, or restructuring. 
Restructuring would include a voluntary or involuntary restructuring 
that results in a sovereign not servicing an existing obligation in 
accordance with the obligation's original terms.
    The agencies received several comments on the proposed risk weights 
for foreign sovereign exposures. Some commenters criticized the 
proposal, arguing that CRCs are not sufficiently risk sensitive and 
basing risk weights on CRCs unduly benefits certain jurisdictions with 
unstable fiscal positions. A few commenters asserted that the increased 
burden associated with tracking CRCs to determine risk weights 
outweighs any increased risk sensitivity gained by using CRCs relative 
to the general risk-based capital rules. Some commenters also requested 
that the CRC methodology be disclosed so that banking organizations 
could perform their own due diligence. One commenter also indicated 
that community banking organizations should be permitted to maintain 
the treatment under the general risk-based capital rules.
    Following the publication of the proposed rule, the OECD determined 
that certain high-income countries that received a CRC of 0 in 2012 
will no longer receive any CRC.\110\
---------------------------------------------------------------------------

    \110\ See https://www.oecd.or/tad/xcred/cat0.htm; Participants to 
the Arrangement on Officially Supported Export Credits agreed that 
the automatic classification of High Income OECD and High Income 
Euro Area countries in Country Risk Category Zero should be 
terminated. In the future, these countries will no longer be 
classified but will remain subject to the same market credit risk 
pricing disciplines that are applied to all Category Zero countries. 
This means that the change will have no practical impact on the 
rules that apply to the provision of official export credits.

---------------------------------------------------------------------------

[[Page 55402]]

    Despite the limitations associated with risk weighting foreign 
sovereign exposures using CRCs, the FDIC has decided to retain this 
methodology, modified as described below to take into account that some 
countries will no longer receive a CRC. Although the FDIC recognizes 
that the risk sensitivity provided by the CRCs is limited, it considers 
CRCs to be a reasonable alternative to credit ratings for sovereign 
exposures and the CRC methodology to be more granular and risk 
sensitive than the current risk-weighting methodology based solely on 
OECD membership. Furthermore, the OECD regularly updates CRCs and makes 
the assessments publicly available on its Web site.\111\ Accordingly, 
the FDIC believes that risk weighting foreign sovereign exposures with 
reference to CRCs (as applicable) should not unduly burden FDIC-
supervised institutions. Additionally, the 150 percent risk weight 
assigned to defaulted sovereign exposures should mitigate the concerns 
raised by some commenters that the use of CRCs assigns inappropriate 
risk weights to exposures to countries experiencing fiscal stress.
---------------------------------------------------------------------------

    \111\ For more information on the OECD country risk 
classification methodology, see OECD, ``Country Risk 
Classification,'' available at https://www.oecd.org/document/49/0,3746,en_2649_34169_1901105_1_1_1_1,00.html.
---------------------------------------------------------------------------

    The interim final rule assigns risk weights to foreign sovereign 
exposures as set forth in Table 17 below. The FDIC modified the interim 
final rule to reflect a change in OECD practice for assigning CRCs for 
certain member countries so that those member countries that no longer 
receive a CRC are assigned a zero percent risk weight. Applying a zero 
percent risk weight to exposures to these countries is appropriate 
because they will remain subject to the same market credit risk pricing 
formulas of the OECD's rating methodologies that are applied to all 
OECD countries with a CRC of 0. In other words, OECD member countries 
that are no longer assigned a CRC exhibit a similar degree of country 
risk as that of a jurisdiction with a CRC of zero. The interim final 
rule, therefore, provides a zero percent risk weight in these cases. 
Additionally, a zero percent risk weight for these countries is 
generally consistent with the risk weight they would receive under the 
FDIC's general risk-based capital rules.

             Table 17--Risk Weights for Sovereign Exposures
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                                           Risk weight
                                                           (in percent)
------------------------------------------------------------------------
CRC............................................    0-1                0
                                                     2               20
                                                     3               50
                                                   4-6              100
                                                     7              150
------------------------------------------------------------------------
OECD Member with No CRC................................               0
Non-OECD Member with No CRC............................             100
Sovereign Default......................................             150
------------------------------------------------------------------------

    Consistent with the proposal, the interim final rule provides that 
if a banking supervisor in a sovereign jurisdiction allows banking 
organizations in that jurisdiction to apply a lower risk weight to an 
exposure to the sovereign than Table 17 provides, a U.S. FDIC-
supervised institution may assign the lower risk weight to an exposure 
to the sovereign, provided the exposure is denominated in the 
sovereign's currency and the U.S. FDIC-supervised institution has at 
least an equivalent amount of liabilities in that foreign currency.
2. Exposures to Certain Supranational Entities and Multilateral 
Development Banks
    Under the general risk-based capital rules, exposures to certain 
supranational entities and MDBs receive a 20 percent risk weight. 
Consistent with the Basel II standardized framework, the agencies 
proposed to apply a zero percent risk weight to exposures to the Bank 
for International Settlements, the European Central Bank, the European 
Commission, and the International Monetary Fund. The agencies also 
proposed to apply a zero percent risk weight to exposures to an MDB in 
accordance with the Basel framework. The proposal defined an MDB to 
include the International Bank for Reconstruction and Development, the 
Multilateral Investment Guarantee Agency, the International Finance 
Corporation, the Inter-American Development Bank, the Asian Development 
Bank, the African Development Bank, the European Bank for 
Reconstruction and Development, the European Investment Bank, the 
European Investment Fund, the Nordic Investment Bank, the Caribbean 
Development Bank, the Islamic Development Bank, the Council of Europe 
Development Bank, and any other multilateral lending institution or 
regional development bank in which the U.S. government is a shareholder 
or contributing member or which the primary Federal supervisor 
determines poses comparable credit risk.
    As explained in the proposal, the agencies believe this treatment 
is appropriate in light of the generally high-credit quality of MDBs, 
their strong shareholder support, and a shareholder structure comprised 
of a significant proportion of sovereign entities with strong 
creditworthiness. The FDIC has adopted this aspect of the proposal 
without change. Exposures to regional development banks and 
multilateral lending institutions that are not covered under the 
definition of MDB generally are treated as corporate exposures assigned 
to the 100 percent risk weight category.
3. Exposures to Government-Sponsored Enterprises
    The general risk-based capital rules assign a 20 percent risk 
weight to exposures to GSEs that are not equity exposures and a 100 
percent risk weight to GSE preferred stock in the case of the Federal 
Reserve and the FDIC (the OCC has assigned a 20 percent risk weight to 
GSE preferred stock).
    The agencies proposed to continue to assign a 20 percent risk 
weight to exposures to GSEs that are not equity exposures and to also 
assign a 100 percent risk weight to preferred stock issued by a GSE. As 
explained in the proposal, the agencies believe these risk weights 
remain appropriate for the GSEs under their current circumstances, 
including those in the conservatorship of the Federal Housing Finance 
Agency and receiving capital support from the U.S. Treasury. The FDIC 
maintains that the obligations of the GSEs, as private corporations 
whose obligations are not explicitly guaranteed by the full faith and 
credit of the United States, should not receive the same treatment as 
obligations that have such an explicit guarantee.
4. Exposures to Depository Institutions, Foreign Banks, and Credit 
Unions
    The general risk-based capital rules assign a 20 percent risk 
weight to all exposures to U.S. depository institutions and foreign 
banks incorporated in an OECD country. Under the general risk-based 
capital rules, short-term exposures to foreign banks incorporated in a 
non-OECD country receive a 20 percent risk weight and long-term 
exposures to such entities receive a 100 percent risk weight.
    The proposed rule would assign a 20 percent risk weight to 
exposures to U.S. depository institutions and credit

[[Page 55403]]

unions.\112\ Consistent with the Basel II standardized framework, under 
the proposed rule, an exposure to a foreign bank would receive a risk 
weight one category higher than the risk weight assigned to a direct 
exposure to the foreign bank's home country, based on the assignment of 
risk weights by CRC, as discussed above.\113\ A banking organization 
would be required to assign a 150 percent risk weight to an exposure to 
a foreign bank immediately upon determining that an event of sovereign 
default has occurred in the foreign bank's home country, or if an event 
of sovereign default has occurred in the foreign bank's home country 
during the previous five years.
---------------------------------------------------------------------------

    \112\ A depository institution is defined in section 3 of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(c)(1)). Under this 
interim final rule, a credit union refers to an insured credit union 
as defined under the Federal Credit Union Act (12 U.S.C. 1752(7)).
    \113\ Foreign bank means a foreign bank as defined in section 
211.2 of the Federal Reserve Board's Regulation K (12 CFR 211.2), 
that is not a depository institution. For purposes of the proposal, 
home country meant the country where an entity is incorporated, 
chartered, or similarly established.
---------------------------------------------------------------------------

    A few commenters asserted that the proposed 20 percent risk weight 
for exposures to U.S. banking organizations--when compared to corporate 
exposures that are assigned a 100 percent risk weight--would continue 
to encourage banking organizations to become overly concentrated in the 
financial sector. The FDIC has concluded that the proposed 20 percent 
risk weight is an appropriate reflection of risk for this exposure type 
when taking into consideration the extensive regulatory and supervisory 
frameworks under which these institutions operate. In addition, the 
FDIC notes that exposures to the capital of other financial 
institutions, including depository institutions and credit unions, are 
subject to deduction from capital if they exceed certain limits as set 
forth in section 324.22 of the interim final rule (discussed above in 
section V.B of this preamble). Therefore, the interim final rule 
retains, as proposed, the 20 percent risk weight for exposures to U.S. 
FDIC-supervised institutions.
    The FDIC has adopted the proposal with modifications to take into 
account the OECD's decision to withdraw CRCs for certain OECD member 
countries. Accordingly, exposures to a foreign bank in a country that 
does not have a CRC, but that is a member of the OECD, are assigned a 
20 percent risk weight and exposures to a foreign bank in a non-OECD 
member country that does not have a CRC continue to receive a 100 
percent risk weight.
    Additionally, the FDIC has adopted the proposed requirement that 
exposures to a financial institution that are included in the 
regulatory capital of such financial institution receive a risk weight 
of 100 percent, unless the exposure is (1) an equity exposure, (2) a 
significant investment in the capital of an unconsolidated financial 
institution in the form of common stock under section 22 of the interim 
final rule, (3) an exposure that is deducted from regulatory capital 
under section 324.22 of the interim final rule, or (4) an exposure that 
is subject to the 150 percent risk weight under Table 2 of section 
324.32 of the interim final rule.
    As described in the Standardized Approach NPR, in 2011, the BCBS 
revised certain aspects of the Basel capital framework to address 
potential adverse effects of the framework on trade finance in low-
income countries.\114\ In particular, the framework was revised to 
remove the sovereign floor for trade finance-related claims on banking 
organizations under the Basel II standardized approach.\115\ The 
proposal incorporated this revision and would have permitted a banking 
organization to assign a 20 percent risk weight to self-liquidating 
trade-related contingent items that arise from the movement of goods 
and that have a maturity of three months or less.\116\ Consistent with 
the proposal, the interim final rule permits an FDIC-supervised 
institution to assign a 20 percent risk weight to self-liquidating, 
trade-related contingent items that arise from the movement of goods 
and that have a maturity of three months or less.
---------------------------------------------------------------------------

    \114\ See BCBS, ``Treatment of Trade Finance under the Basel 
Capital Framework,'' (October 2011), available at https://www.bis.org/publ/bcbs205.pdf. ``Low income country'' is a 
designation used by the World Bank to classify economies (see World 
Bank, ``How We Classify Countries,'' available at https://data.worldbank.org/about/country-classifications).
    \115\ The BCBS indicated that it removed the sovereign floor for 
such exposures to make access to trade finance instruments easier 
and less expensive for low income countries. Absent removal of the 
floor, the risk weight assigned to these exposures, where the 
issuing banking organization is incorporated in a low income 
country, typically would be 100 percent.
    \116\ One commenter requested that the agencies confirm whether 
short-term self-liquidating trade finance instruments are considered 
exempt from the one-year maturity floor in the advances approaches 
rule. Section 324.131(d)(7) of the interim final rule provides that 
a trade-related letter of credit is exempt from the one-year 
maturity floor.
---------------------------------------------------------------------------

    As discussed in the proposal, although the Basel capital framework 
permits exposures to securities firms that meet certain requirements to 
be assigned the same risk weight as exposures to depository 
institutions, the agencies do not believe that the risk profile of 
securities firms is sufficiently similar to depository institutions to 
justify assigning the same risk weight to both exposure types. 
Therefore, the agencies proposed that banking organizations assign a 
100 percent risk weight to exposures to securities firms, which is the 
same risk weight applied to BHCs, SLHCs, and other financial 
institutions that are not insured depository institutions or credit 
unions, as described in section VIII.B of this preamble.
    Several commenters asserted that the interim final rule should be 
consistent with the Basel framework and permit lower risk weights for 
exposures to securities firms, particularly for securities firms in a 
sovereign jurisdiction with a CRC of 0 or 1. The FDIC considered these 
comments and has concluded that that exposures to securities firms 
exhibit a similar degree of risk as exposures to other financial 
institutions that are assigned a 100 percent risk weight, because of 
the nature and risk profile of their activities, which are more 
expansive and exhibit more varied risk profiles than the activities 
permissible for depository institutions and credit unions. Accordingly, 
the FDIC has adopted the 100 percent risk weight for securities firms 
without change.
5. Exposures to Public-Sector Entities
    The proposal defined a PSE as a state, local authority, or other 
governmental subdivision below the level of a sovereign, which includes 
U.S. states and municipalities. The proposed definition did not include 
government-owned commercial companies that engage in activities 
involving trade, commerce, or profit that are generally conducted or 
performed in the private sector. The agencies proposed to define a 
general obligation as a bond or similar obligation that is backed by 
the full faith and credit of a PSE, whereas a revenue obligation would 
be defined as a bond or similar obligation that is an obligation of a 
PSE, but which the PSE has committed to repay with revenues from a 
specific project rather than general tax funds. In the interim final 
rule, the FDIC is adopting these definitions as proposed.
    The agencies proposed to assign a 20 percent risk weight to a 
general obligation exposure to a PSE that is organized under the laws 
of the United States or any state or political subdivision thereof, and 
a 50 percent risk weight to a revenue obligation exposure to such a 
PSE. These are the risk weights assigned to U.S. states and 
municipalities under the general risk-based capital rules.

[[Page 55404]]

    Some commenters asserted that available default data does not 
support a differentiated treatment between revenue obligations and 
general obligations. In addition, some commenters contended that higher 
risk weights for revenue obligation bonds would needlessly and 
adversely affect state and local agencies' ability to meet the needs of 
underprivileged constituents. One commenter specifically recommended 
assigning a 20 percent risk weight to investment-grade revenue 
obligations. Another commenter recommended that exposures to U.S. PSEs 
should receive the same treatment as exposures to the U.S. government.
    The FDIC considered these comments, including with respect to 
burden on state and local programs, but concluded that the higher 
regulatory capital requirement for revenue obligations is appropriate 
because those obligations are dependent on revenue from specific 
projects and generally a PSE is not legally obligated to repay these 
obligations from other revenue sources. Although some evidence may 
suggest that there are not substantial differences in credit quality 
between general and revenue obligation exposures, the FDIC believes 
that such dependence on project revenue presents more credit risk 
relative to a general repayment obligation of a state or political 
subdivision of a sovereign. Therefore, the proposed differentiation of 
risk weights between general obligation and revenue exposures is 
retained in the interim final rule. The FDIC also continues to believe 
that PSEs collectively pose a greater credit risk than U.S. sovereign 
debt and, therefore, are appropriately assigned a higher risk weight 
under the interim final rule.
    Consistent with the Basel II standardized framework, the agencies 
proposed to require banking organizations to risk weight exposures to a 
non-U.S. PSE based on (1) the CRC assigned to the PSE's home country 
and (2) whether the exposure is a general obligation or a revenue 
obligation. The risk weights assigned to revenue obligations were 
proposed to be higher than the risk weights assigned to a general 
obligation issued by the same PSE.
    For purposes of the interim final rule, the FDIC has adopted the 
proposed risk weights for non-U.S. PSEs with modifications to take into 
account the OECD's decision to withdraw CRCs for certain OECD member 
countries (discussed above), as set forth in Table 18 below. Under the 
interim final rule, exposures to a non-U.S. PSE in a country that does 
not have a CRC and is not an OECD member receive a 100 percent risk 
weight. Exposures to a non-U.S. PSE in a country that has defaulted on 
any outstanding sovereign exposure or that has defaulted on any 
sovereign exposure during the previous five years receive a 150 percent 
risk weight.

        Table 18--Risk Weights for Exposures to Non-U.S. PSE General Obligations and Revenue Obligations
                                                  [In percent]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                                       Risk Weight for        Risk Weight for
                                                                       Exposures to Non-      Exposures to Non-
                                                                        U.S. PSE General       U.S. PSE Revenue
                                                                             Obligations            Obligations
----------------------------------------------------------------------------------------------------------------
CRC.......................................................    0-1                     20                     50
                                                                2                     50                    100
                                                                3                    100                    100
                                                              4-7                    150                    150
----------------------------------------------------------------------------------------------------------------
OECD Member with No CRC...........................................                    20                     50
Non-OECD member with No CRC.......................................                   100                    100
Sovereign Default.................................................                   150                    150
----------------------------------------------------------------------------------------------------------------

    Consistent with the general risk-based capital rules as well as the 
proposed rule, an FDIC-supervised institution may apply a different 
risk weight to an exposure to a non-U.S. PSE if the banking 
organization supervisor in that PSE's home country allows supervised 
institutions to assign the alternative risk weight to exposures to that 
PSE. In no event, however, may the risk weight for an exposure to a 
non-U.S. PSE be lower than the risk weight assigned to direct exposures 
to the sovereign of that PSE's home country.
6. Corporate Exposures
    Generally consistent with the general risk-based capital rules, the 
agencies proposed to require banking organizations to assign a 100 
percent risk weight to all corporate exposures, including bonds and 
loans. The proposal defined a corporate exposure as an exposure to a 
company that is not an exposure to a sovereign, the Bank for 
International Settlements, the European Central Bank, the European 
Commission, the International Monetary Fund, an MDB, a depository 
institution, a foreign bank, a credit union, a PSE, a GSE, a 
residential mortgage exposure, a pre-sold construction loan, a 
statutory multifamily mortgage, a high-volatility commercial real 
estate (HVCRE) exposure, a cleared transaction, a default fund 
contribution, a securitization exposure, an equity exposure, or an 
unsettled transaction. The definition also captured all exposures that 
are not otherwise included in another specific exposure category.
    Several commenters recommended differentiating the proposed risk 
weights for corporate bonds based on a bond's credit quality. Other 
commenters requested the agencies align the interim final rule with the 
Basel international standard that aligns risk weights with credit 
ratings. Another commenter contended that corporate bonds should 
receive a 50 percent risk weight, arguing that other exposures included 
in the corporate exposure category (such as commercial and industrial 
bank loans) are empirically of greater risk than corporate bonds.
    One commenter requested that the standardized approach provide a 
distinct capital treatment of a 75 percent risk weight for retail 
exposures, consistent with the international standard under Basel II. 
The FDIC has concluded that the proposed 100 percent risk weight 
assigned to retail exposures is appropriate given their risk profile in 
the United States and has retained the proposed treatment in the 
interim final rule. Consistent with the proposal, the interim final 
rule neither defines nor provides a separate

[[Page 55405]]

treatment for retail exposures in the standardized approach.
    As described in the proposal, the agencies removed the use of 
ratings from the regulatory capital framework, consistent with section 
939A of the Dodd-Frank Act. The agencies therefore evaluated a number 
of alternatives to credit ratings to provide a more granular risk 
weight treatment for corporate exposures.\117\ For example, the 
agencies considered market-based alternatives, such as the use of 
credit default and bond spreads, and use of particular indicators or 
parameters to differentiate between relative levels of credit risk. 
However, the agencies viewed each of the possible alternatives as 
having significant drawbacks, including their operational complexity, 
or insufficient development. For instance, the agencies were concerned 
that bond markets may sometimes misprice risk and bond spreads may 
reflect factors other than credit risk. The agencies also were 
concerned that such approaches could introduce undue volatility into 
the risk-based capital requirements.
---------------------------------------------------------------------------

    \117\ See, for example, 76 FR 73526 (Nov. 29, 2011) and 76 FR 
73777 (Nov. 29, 2011).
---------------------------------------------------------------------------

    The FDIC considered suggestions offered by commenters and 
understands that a 100 percent risk weight may overstate the credit 
risk associated with some high-quality bonds. However, the FDIC 
believes that a single risk weight of less than 100 percent would 
understate the risk of many corporate exposures and, as explained, has 
not yet identified an alternative methodology to credit ratings that 
would provide a sufficiently rigorous basis for differentiating the 
risk of various corporate exposures. In addition, the FDIC believes 
that, on balance, a 100 percent risk weight is generally representative 
of a well-diversified corporate exposure portfolio. The interim final 
rule retains without change the 100 percent risk weight for all 
corporate exposures as well as the proposed definition of corporate 
exposure.
    A few commenters requested clarification on the treatment for 
general-account insurance products. Under the final rule, consistent 
with the proposal, if a general-account exposure is to an organization 
that is not a banking organization, such as an insurance company, the 
exposure must receive a risk weight of 100 percent. Exposures to 
securities firms are subject to the corporate exposure treatment under 
the final rule, as described in section VIII.B of this preamble.
7. Residential Mortgage Exposures
    Under the general risk-based capital requirements, first-lien 
residential mortgages made in accordance with prudent underwriting 
standards on properties that are owner-occupied or rented typically are 
assigned to the 50 percent risk-weight category. Otherwise, residential 
mortgage exposures are assigned to the 100 percent risk weight 
category.
    The proposal would have substantially modified the risk-weight 
framework applicable to residential mortgage exposures and differed 
materially from both the general risk-based capital rules and the Basel 
capital framework. The agencies proposed to divide residential mortgage 
exposures into two categories. The proposal applied relatively low risk 
weights to residential mortgage exposures that did not have product 
features associated with higher credit risk, or ``category 1'' 
residential mortgages as defined in the proposal. The proposal defined 
all other residential mortgage exposures as ``category 2'' mortgages, 
which would receive relatively high risk weights. For both category 1 
and category 2 mortgages, the proposed risk weight assigned also would 
have depended on the mortgage exposure's LTV ratio. Under the proposal, 
a banking organization would not be able to recognize private mortgage 
insurance (PMI) when calculating the LTV ratio of a residential 
mortgage exposure. Due to the varying degree of financial strength of 
mortgage insurance providers, the agencies stated that they did not 
believe that it would be prudent to consider PMI in the determination 
of LTV ratios under the proposal.
    The agencies received a significant number of comments in 
opposition to the proposed risk weights for residential mortgages and 
in favor of retaining the risk-weight framework for residential 
mortgages in the general risk-based capital rules. Many commenters 
asserted that the increased risk weights for certain mortgages would 
inhibit lending to creditworthy borrowers, particularly when combined 
with the other proposed statutory and regulatory requirements being 
implemented under the authority of the Dodd-Frank Act, and could 
ultimately jeopardize the recovery of a still-fragile residential real 
estate market. Various commenters asserted that the agencies did not 
provide sufficient empirical support for the proposal and stated the 
proposal was overly complex and would not contribute meaningfully to 
the risk sensitivity of the regulatory capital requirements. They also 
asserted that the proposal would require some banking organizations to 
raise revenue through other, more risky activities to compensate for 
the potential increased costs.
    Commenters also indicated that the distinction between category 1 
and category 2 residential mortgages would adversely impact certain 
loan products that performed relatively well even during the recent 
crisis, such as balloon loans originated by community banking 
organizations. Other commenters criticized the proposed increased 
capital requirements for various loan products, including balloon and 
interest-only mortgages. Community banking organization commenters in 
particular asserted that such mortgage products are offered to hedge 
interest-rate risk and are frequently the only option for a significant 
segment of potential borrowers in their regions.
    A number of commenters argued that the proposal would place U.S. 
banking organizations at a competitive disadvantage relative to foreign 
banking organizations subject to the Basel II standardized framework, 
which generally assigns a 35 percent risk weight to residential 
mortgage exposures. Several commenters indicated that the proposed 
treatment would potentially undermine government programs encouraging 
residential mortgage lending to lower-income individuals and 
underserved regions. Commenters also asserted that PMI should receive 
explicit recognition in the interim final rule through a reduction in 
risk weights, given the potential negative impact on mortgage 
availability (particularly to first-time borrowers) of the proposed 
risk weights.
    In addition to comments on the specific elements of the proposal, a 
significant number of commenters alleged that the agencies did not 
sufficiently consider the potential impact of other regulatory actions 
on the mortgage industry. For instance, commenters expressed 
considerable concern regarding the new requirements associated with the 
Dodd-Frank Act's qualified mortgage definition under the Truth in 
Lending Act.\118\ Many of these commenters asserted that when combined 
with this proposal, the cumulative effect of the new regulatory 
requirements could adversely impact the residential mortgage industry.
---------------------------------------------------------------------------

    \118\ The proposal was issued prior to publication of the 
Consumer Financial Protection Bureau's final rule regarding 
qualified mortgage standards. See 78 FR 6407 (January 30, 2013).
---------------------------------------------------------------------------

    The agencies also received specific comments concerning potential 
logistical difficulties they would face

[[Page 55406]]

implementing the proposal. Many commenters argued that tracking loans 
by LTV and category would be administratively burdensome, requiring the 
development or purchase of new systems. These commenters requested 
that, at a minimum, existing mortgages continue to be assigned the risk 
weights they would receive under the general risk-based capital rules 
and exempted from the proposed rules. Many commenters also requested 
clarification regarding the method for calculating the LTV for first 
and subordinate liens, as well as how and whether a loan could be 
reclassified between the two residential mortgage categories. For 
instance, commenters raised various technical questions on how to 
calculate the LTV of a restructured mortgage and under what conditions 
a restructured loan could qualify as a category 1 residential mortgage 
exposure.
    The FDIC considered the comments pertaining to the residential 
mortgage proposal, particularly comments regarding the issuance of new 
regulations designed to improve the quality of mortgage underwriting 
and to generally reduce the associated credit risk, including the final 
definition of ``qualified mortgage'' as implemented by the Consumer 
Financial Protection Bureau (CFPB) pursuant to the Dodd-Frank Act.\119\ 
Additionally, the FDIC is mindful of the uncertain implications that 
the proposal, along with other mortgage-related rulemakings, could have 
had on the residential mortgage market, particularly regarding 
underwriting and credit availability. The FDIC also considered the 
commenters' observations about the burden of calculating the risk 
weights for FDIC-supervised institutions' existing mortgage portfolios, 
and have taken into account the commenters' concerns about the 
availability of different mortgage products across different types of 
markets.
---------------------------------------------------------------------------

    \119\ See id.
---------------------------------------------------------------------------

    In light of these considerations, the FDIC has decided to retain in 
the interim final rule the treatment for residential mortgage exposures 
that is currently set forth in its general risk-based capital rules. 
The FDIC may develop and propose changes in the treatment of 
residential mortgage exposures in the future, and in that process, it 
intends to take into consideration structural and product market 
developments, other relevant regulations, and potential issues with 
implementation across various product types.
    Accordingly, as under the general risk-based capital rules, the 
interim final rule assigns exposures secured by one-to-four family 
residential properties to either the 50 percent or the 100 percent 
risk-weight category. Exposures secured by a first-lien on an owner-
occupied or rented one-to-four family residential property that meet 
prudential underwriting standards, including standards relating to the 
loan amount as a percentage of the appraised value of the property, are 
not 90 days or more past due or carried on non-accrual status, and that 
are not restructured or modified receive a 50 percent risk weight. If 
an FDIC-supervised institution holds the first and junior lien(s) on a 
residential property and no other party holds an intervening lien, the 
FDIC-supervised institution must treat the combined exposure as a 
single loan secured by a first lien for purposes of determining the 
loan-to-value ratio and assigning a risk weight. An FDIC-supervised 
institution must assign a 100 percent risk weight to all other 
residential mortgage exposures. Under the interim final rule, a 
residential mortgage guaranteed by the federal government through the 
Federal Housing Administration (FHA) or the Department of Veterans 
Affairs (VA) generally will be risk-weighted at 20 percent.
    Consistent with the general risk-based capital rules, under the 
interim final rule, a residential mortgage exposure may be assigned to 
the 50 percent risk-weight category only if it is not restructured or 
modified. Under the interim final rule, consistent with the proposal, a 
residential mortgage exposure modified or restructured on a permanent 
or trial basis solely pursuant to the U.S. Treasury's Home Affordable 
Mortgage Program (HAMP) is not considered to be restructured or 
modified. Several commenters from community banking organizations 
encouraged the agencies to broaden this exemption and not penalize 
banking organizations for participating in other successful loan 
modification programs. As described in greater detail in the proposal, 
the FDIC believes that treating mortgage loans modified pursuant to 
HAMP in this manner is appropriate in light of the special and unique 
incentive features of HAMP, and the fact that the program is offered by 
the U.S. government to achieve the public policy objective of promoting 
sustainable loan modifications for homeowners at risk of foreclosure in 
a way that balances the interests of borrowers, servicers, and lenders.
8. Pre-Sold Construction Loans and Statutory Multifamily Mortgages
    The general risk-based capital rules assign either a 50 percent or 
a 100 percent risk weight to certain one-to-four family residential 
pre-sold construction loans and to multifamily residential loans, 
consistent with provisions of the Resolution Trust Corporation 
Refinancing, Restructuring, and Improvement Act of 1991 (RTCRRI 
Act).\120\ The proposal maintained the same general treatment as the 
general risk-based capital rules and clarified and updated the manner 
in which the general risk-based capital rules define these exposures. 
Under the proposal, a pre-sold construction loan would be subject to a 
50 percent risk weight unless the purchase contract is cancelled.
---------------------------------------------------------------------------

    \120\ The RTCRRI Act mandates that each agency provide in its 
capital regulations (i) a 50 percent risk weight for certain one-to-
four-family residential pre-sold construction loans and multifamily 
residential loans that meet specific statutory criteria in the 
RTCRRI Act and any other underwriting criteria imposed by the 
agencies, and (ii) a 100 percent risk weight for one-to-four-family 
residential pre-sold construction loans for residences for which the 
purchase contract is cancelled. 12 U.S.C. 1831n, note.
---------------------------------------------------------------------------

    The FDIC is adopting this aspect of the proposal without change. 
The interim final rule defines a pre-sold construction loan, in part, 
as any one-to-four family residential construction loan to a builder 
that meets the requirements of section 618(a)(1) or (2) of the RTCRRI 
Act, and also harmonizes the FDIC's prior regulations. Under the 
interim final rule, a multifamily mortgage that does not meet the 
definition of a statutory multifamily mortgage is treated as a 
corporate exposure.
9. High-Volatility Commercial Real Estate
    Supervisory experience has demonstrated that certain acquisition, 
development, and construction loans (which are a subset of commercial 
real estate exposures) present particular risks for which the FDIC 
believes FDIC-supervised institutions should hold additional capital. 
Accordingly, the agencies proposed to require banking organizations to 
assign a 150 percent risk weight to any HVCRE exposure, which is higher 
than the 100 percent risk weight applied to such loans under the 
general risk-based capital rules. The proposal defined an HVCRE 
exposure to include any credit facility that finances or has financed 
the acquisition, development, or construction of real property, unless 
the facility finances one- to four-family residential mortgage

[[Page 55407]]

property, or commercial real estate projects that meet certain 
prudential criteria, including with respect to the LTV ratio and 
capital contributions or expense contributions of the borrower.
    Commenters criticized the proposed HVCRE definition as overly broad 
and suggested an exclusion for certain acquisition, development, or 
construction (ADC) loans, including: (1) ADC loans that are less than a 
specific dollar amount or have a debt service coverage ratio of 100 
percent (rather than 80 percent, under the agencies' lending 
standards); (2) community development projects or projects financed by 
low-income housing tax credits; and (3) certain loans secured by 
agricultural property for the sole purpose of acquiring land. Several 
commenters asserted that the proposed 150 percent risk weight was too 
high for secured loans and would hamper local commercial development. 
Another commenter recommended the agencies increase the number of HVCRE 
risk-weight categories to reflect LTV ratios.
    The FDIC has considered the comments and has decided to retain the 
150 percent risk weight for HVCRE exposures (modified as described 
below), given the increased risk of these activities when compared to 
other commercial real estate loans.\121\ The FDIC believes that 
segmenting HVCRE by LTV ratio would introduce undue complexity without 
providing a sufficient improvement in risk sensitivity. The FDIC has 
also determined not to exclude from the HVCRE definition ADC loans that 
are characterized by a specified dollar amount or loans with a debt 
service coverage ratio greater than 80 percent because an arbitrary 
threshold would likely not capture certain ADC loans with elevated 
risks. Consistent with the proposal, a commercial real estate loan that 
is not an HVCRE exposure is treated as a corporate exposure.
---------------------------------------------------------------------------

    \121\ See the definition of ``high-volatility commercial real 
estate exposure'' in section 2 of the interim final rule.
---------------------------------------------------------------------------

    Many commenters requested clarification as to whether all 
commercial real estate or ADC loans are considered HVCRE exposures. 
Consistent with the proposal, the interim final rule's HVCRE definition 
only applies to a specific subset of ADC loans and is, therefore, not 
applicable to all commercial real estate loans. Specifically, some 
commenters sought clarification on whether a facility would remain an 
HVCRE exposure for the life of the loan and whether owner-occupied 
commercial real estate loans are included in the HVCRE definition. The 
FDIC notes that when the life of the ADC project concludes and the 
credit facility is converted to permanent financing in accordance with 
the FDIC-supervised institution's normal lending terms, the permanent 
financing is not an HVCRE exposure. Thus, a loan permanently financing 
owner-occupied commercial real estate is not an HVCRE exposure. Given 
these clarifications, the FDIC believes that many concerns regarding 
the potential adverse impact on commercial development were, in part, 
driven by a lack of clarity regarding the definition of the HVCRE, and 
believes that the treatment of HVCRE exposures in the interim final 
rule appropriately reflects their risk relative to other commercial 
real estate exposures.
    Commenters also sought clarification as to whether cash or 
securities used to purchase land counts as borrower-contributed 
capital. In addition, a few commenters requested further clarification 
on what constitutes contributed capital for purposes of the interim 
final rule. Consistent with existing guidance, cash used to purchase 
land is a form of borrower contributed capital under the HVCRE 
definition.
    In response to the comments, the interim final rule amends the 
proposed HVCRE definition to exclude loans that finance the 
acquisition, development, or construction of real property that would 
qualify as community development investments. The interim final rule 
does not require an FDIC-supervised institution to have an investment 
in the real property for it to qualify for the exemption: Rather, if 
the real property is such that an investment in that property would 
qualify as a community development investment, then a facility 
financing acquisition, development, or construction of that property 
would meet the terms of the exemption. The FDIC has, however, 
determined not to give an automatic exemption from the HVCRE definition 
to all ADC loans to businesses or farms that have gross annual revenues 
of $1 million or less, although they could qualify for another 
exemption from the definition. For example, an ADC loan to a small 
business with annual revenues of under $1 million that meets the LTV 
ratio and contribution requirements set forth in paragraph (3) of the 
definition would qualify for that exemption from the definition as 
would a loan that finances real property that: Provides affordable 
housing (including multi-family rental housing) for low to moderate 
income individuals; is used in the provision of community services for 
low to moderate income individuals; or revitalizes or stabilizes low to 
moderate income geographies, designated disaster areas, or underserved 
areas specifically determined by the federal banking agencies based on 
the needs of low- and moderate-income individuals in those areas. The 
final definition also exempts ADC loans for the purchase or development 
of agricultural land, which is defined as all land known to be used or 
usable for agricultural purposes (such as crop and livestock 
production), provided that the valuation of the agricultural land is 
based on its value for agricultural purposes and the valuation does not 
consider any potential use of the land for non-agricultural commercial 
development or residential development.
10. Past-Due Exposures
    Under the general risk-based capital rules, the risk weight of a 
loan does not change if the loan becomes past due, with the exception 
of certain residential mortgage loans. The Basel II standardized 
approach provides risk weights ranging from 50 to 150 percent for 
exposures, except sovereign exposures and residential mortgage 
exposures, that are more than 90 days past due to reflect the increased 
risk of loss. Accordingly, to reflect the impaired credit quality of 
such exposures, the agencies proposed to require a banking organization 
to assign a 150 percent risk weight to an exposure that is not 
guaranteed or not secured (and that is not a sovereign exposure or a 
residential mortgage exposure) if it is 90 days or more past due or on 
nonaccrual.
    A number of commenters maintained that the proposed 150 percent 
risk weight is too high for various reasons. Specifically, several 
commenters asserted that ALLL is already reflected in the risk-based 
capital numerator, and therefore an increased risk weight double-counts 
the risk of a past-due exposure. Other commenters characterized the 
increased risk weight as procyclical and burdensome (particularly for 
community banking organizations), and maintained that it would 
unnecessarily discourage lending and loan modifications or workouts.
    The FDIC has considered the comments and have decided to retain the 
proposed 150 percent risk weight for past-due exposures in the interim 
final rule. The FDIC notes that the ALLL is intended to cover 
estimated, incurred losses as of the balance sheet date, rather than 
unexpected losses. The higher risk weight on past due exposures ensures 
sufficient regulatory capital for the increased probability of 
unexpected losses on these exposures.

[[Page 55408]]

The FDIC believes that any increased capital burden, potential rise in 
procyclicality, or impact on lending associated with the 150 percent 
risk weight is justified given the overall objective of better 
capturing the risk associated with the impaired credit quality of these 
exposures.
    One commenter requested clarification as to whether a banking 
organization could reduce the risk weight for past-due exposures from 
150 percent when the carrying value is charged down to the amount 
expected to be recovered. For the purposes of the interim final rule, 
an FDIC-supervised institution must apply a 150 percent risk weight to 
all past-due exposures, including any amount remaining on the balance 
sheet following a charge-off, to reflect the increased uncertainty as 
to the recovery of the remaining carrying value.
11. Other Assets
    Generally consistent with the general risk-based capital rules, the 
FDIC has decided to adopt, as proposed, the risk weights described 
below for exposures not otherwise assigned to a specific risk weight 
category. Specifically, an FDIC-supervised institution must assign:
    (1) A zero percent risk weight to cash owned and held in all of an 
FDIC-supervised institution's offices or in transit; gold bullion held 
in the FDIC-supervised institution's own vaults, or held in another 
depository institution's vaults on an allocated basis to the extent 
gold bullion assets are offset by gold bullion liabilities; and to 
exposures that arise from the settlement of cash transactions (such as 
equities, fixed income, spot foreign exchange and spot commodities) 
with a CCP where there is no assumption of ongoing counterparty credit 
risk by the CCP after settlement of the trade and associated default 
fund contributions;
    (2) A 20 percent risk weight to cash items in the process of 
collection; and
    (3) A 100 percent risk weight to all assets not specifically 
assigned a different risk weight under the interim final rule (other 
than exposures that would be deducted from tier 1 or tier 2 capital), 
including deferred acquisition costs (DAC) and value of business 
acquired (VOBA).
    In addition, subject to the proposed transition arrangements under 
section 300 of the interim final rule, an FDIC-supervised institution 
must assign:
    (1) A 100 percent risk weight to DTAs arising from temporary 
differences that the FDIC-supervised institution could realize through 
net operating loss carrybacks; and
    (2) A 250 percent risk weight to the portion of MSAs and DTAs 
arising from temporary differences that the FDIC-supervised institution 
could not realize through net operating loss carrybacks that are not 
deducted from common equity tier 1 capital pursuant to section 
324.22(d).
    The agencies received a few comments on the treatment of DAC and 
VOBA. DAC represents certain costs incurred in the acquisition of a new 
contract or renewal insurance contract that are capitalized pursuant to 
GAAP. VOBA refers to assets that reflect revenue streams from insurance 
policies purchased by an insurance company. One commenter asked for 
clarification on risk weights for other types of exposures that are not 
assigned a specific risk weight under the proposal. Consistent with the 
proposal, under the interim final rule these assets receive a 100 
percent risk weight, together with other assets not specifically 
assigned a different risk weight under the NPR.
    Consistent with the general risk-based capital rules, the interim 
final rule retains the limited flexibility to address situations where 
exposures of an FDIC-supervised institution that are not exposures 
typically held by depository institutions do not fit wholly within the 
terms of another risk-weight category. Under the interim final rule, an 
FDIC-supervised institution may assign such exposures to the risk-
weight category applicable under the capital rules for BHCs or covered 
SLHCs, provided that (1) the FDIC-supervised institution is not 
authorized to hold the asset under applicable law other than debt 
previously contracted or similar authority; and (2) the risks 
associated with the asset are substantially similar to the risks of 
assets that are otherwise assigned to a risk-weight category of less 
than 100 percent under subpart D of the interim final rule.

C. Off-Balance Sheet Items

1. Credit Conversion Factors
    Under the proposed rule, as under the general risk-based capital 
rules, a banking organization would calculate the exposure amount of an 
off-balance sheet item by multiplying the off-balance sheet component, 
which is usually the contractual amount, by the applicable CCF. This 
treatment would apply to all off-balance sheet items, such as 
commitments, contingent items, guarantees, certain repo-style 
transactions, financial standby letters of credit, and forward 
agreements. The proposed rule, however, introduced new CCFs applicable 
to certain exposures, such as a higher CCF for commitments with an 
original maturity of one year or less that are not unconditionally 
cancelable.
    Commenters offered a number of suggestions for revising the 
proposed CCFs that would be applied to off-balance sheet exposures. 
Commenters generally asked for lower CCFs that, according to the 
commenters, are more directly aligned with a particular off-balance 
sheet exposure's loss history. In addition, some commenters asked the 
agencies to conduct a calibration study to show that the proposed CCFs 
were appropriate.
    The FDIC has decided to retain the proposed CCFs for off-balance 
sheet exposures without change for purposes of the interim final rule. 
The FDIC believes that the proposed CCFs meet its goals of improving 
risk sensitivity and implementing higher capital requirements for 
certain exposures through a simple methodology. Furthermore, 
alternatives proposed by commenters, such as exposure measures tied 
directly to a particular exposure's loss history, would create 
significant operational burdens for many small- and mid-sized banking 
organizations, by requiring them to keep accurate historical records of 
losses and continuously adjust their capital requirements for certain 
exposures to account for new loss data. Such a system would be 
difficult for the FDIC to monitor, as the FDIC would need to verify the 
accuracy of historical loss data and ensure that capital requirements 
are properly applied across institutions. Incorporation of additional 
factors, such as loss history or increasing the number of CCF 
categories, would detract from the FDIC's stated goal of simplicity in 
its capital treatment of off-balance sheet exposures. Additionally, the 
FDIC believes that the CCFs, as proposed, were properly calibrated to 
reflect the risk profiles of the exposures to which they are applied 
and do not believe a calibration study is required.
    Accordingly, under the interim final rule, as proposed, an FDIC-
supervised institution may apply a zero percent CCF to the unused 
portion of commitments that are unconditionally cancelable by the FDIC-
supervised institution. For purposes of the interim final rule, a 
commitment means any legally binding arrangement that obligates an 
FDIC-supervised institution to extend credit or to purchase assets. 
Unconditionally cancelable means a commitment for which an FDIC-
supervised institution may, at any time, with or without cause, refuse 
to extend credit (to the extent permitted under applicable law). In the 
case of a

[[Page 55409]]

residential mortgage exposure that is a line of credit, an FDIC-
supervised institution can unconditionally cancel the commitment if it, 
at its option, may prohibit additional extensions of credit, reduce the 
credit line, and terminate the commitment to the full extent permitted 
by applicable law. If an FDIC-supervised institution provides a 
commitment that is structured as a syndication, the FDIC-supervised 
institution is only required to calculate the exposure amount for its 
pro rata share of the commitment.
    The proposed rule provided a 20 percent CCF for commitments with an 
original maturity of one year or less that are not unconditionally 
cancelable by a banking organization, and for self-liquidating, trade-
related contingent items that arise from the movement of goods with an 
original maturity of one year or less.
    Some commenters argued that the proposed designation of a 20 
percent CCF for certain exposures was too high. For example, they 
requested that the interim final rule continue the current practice of 
applying a zero percent CCF to all unfunded lines of credit with less 
than one year maturity, regardless of the lender's ability to 
unconditionally cancel the line of credit. They also requested a CCF 
lower than 20 percent for the unused portions of letters of credit 
extended to a small, mid-market, or trade finance company with 
durations of less than one year or less. These commenters asserted that 
current market practice for these lines have covenants based on 
financial ratios, and any increase in riskiness that violates the 
contractual minimum ratios would prevent the borrower from drawing down 
the unused portion.
    For purposes of the interim final rule, the FDIC is retaining the 
20 percent CCF, as it accounts for the elevated level of risk FDIC-
supervised institutions face when extending short-term commitments that 
are not unconditionally cancelable. Although the FDIC understands 
certain contractual provisions are common in the market, these 
practices are not static, and it is more appropriate from a regulatory 
standpoint to base a CCF on whether a commitment is unconditionally 
cancellable. An FDIC-supervised institution must apply a 20 percent CCF 
to a commitment with an original maturity of one year or less that is 
not unconditionally cancellable by the FDIC-supervised institution. The 
interim final rule also maintains the 20 percent CCF for self-
liquidating, trade-related contingent items that arise from the 
movement of goods with an original maturity of one year or less. The 
interim final rule also requires an FDIC-supervised institution to 
apply a 50 percent CCF to commitments with an original maturity of more 
than one year that are not unconditionally cancelable by the FDIC-
supervised institution, and to transaction-related contingent items, 
including performance bonds, bid bonds, warranties, and performance 
standby letters of credit.
    Some commenters requested clarification regarding the treatment of 
commitments to extend letters of credit. They argued that these 
commitments are no more risky than commitments to extend loans and 
should receive similar treatment (20 percent or 50 percent CCF). For 
purposes of the interim final rule, the FDIC notes that section 
33(a)(2) allows FDIC-supervised institutions to apply the lower of the 
two applicable CCFs to the exposures related to commitments to extend 
letters of credit. FDIC-supervised institutions will need to make this 
determination based upon the individual characteristics of each letter 
of credit.
    Under the interim final rule, an FDIC-supervised institution must 
apply a 100 percent CCF to off-balance sheet guarantees, repurchase 
agreements, credit-enhancing representations and warranties that are 
not securitization exposures, securities lending or borrowing 
transactions, financial standby letters of credit, and forward 
agreements, and other similar exposures. The off-balance sheet 
component of a repurchase agreement equals the sum of the current fair 
values of all positions the FDIC-supervised institution has sold 
subject to repurchase. The off-balance sheet component of a securities 
lending transaction is the sum of the current fair values of all 
positions the FDIC-supervised institution has lent under the 
transaction. For securities borrowing transactions, the off-balance 
sheet component is the sum of the current fair values of all non-cash 
positions the FDIC-supervised institution has posted as collateral 
under the transaction. In certain circumstances, an FDIC-supervised 
institution may instead determine the exposure amount of the 
transaction as described in section 37 of the interim final rule.
    In contrast to the general risk-based capital rules, which require 
capital for securities lending and borrowing transactions and 
repurchase agreements that generate an on-balance sheet exposure, the 
interim final rule requires an FDIC-supervised institution to hold 
risk-based capital against all repo-style transactions, regardless of 
whether they generate on-balance sheet exposures, as described in 
section 324.37 of the interim final rule. One commenter disagreed with 
this treatment and requested an exemption from the capital treatment 
for off-balance sheet repo-style exposures. However, the FDIC adopted 
this approach because banking organizations face counterparty credit 
risk when engaging in repo-style transactions, even if those 
transactions do not generate on-balance sheet exposures, and thus 
should not be exempt from risk-based capital requirements.
2. Credit-Enhancing Representations and Warranties
    Under the general risk-based capital rules, a banking organization 
is subject to a risk-based capital requirement when it provides credit-
enhancing representations and warranties on assets sold or otherwise 
transferred to third parties as such positions are considered recourse 
arrangements.\122\ However, the general risk-based capital rules do not 
impose a risk-based capital requirement on assets sold or transferred 
with representations and warranties that (1) contain early default 
clauses or similar warranties that permit the return of, or premium 
refund clauses covering, one-to-four family first-lien residential 
mortgage loans for a period not to exceed 120 days from the date of 
transfer; and (2) contain premium refund clauses that cover assets 
guaranteed, in whole or in part, by the U.S. government, a U.S. 
government agency, or a U.S. GSE, provided the premium refund clauses 
are for a period not to exceed 120 days; or (3) permit the return of 
assets in instances of fraud, misrepresentation, or incomplete 
documentation.\123\
---------------------------------------------------------------------------

    \122\ 12 CFR part 325, appendix A, section II.B.5(a) (state 
nonmember banks) and 12 CFR 390.466(b) (state savings associations).
    \123\ 12 CFR part 325, appendix A, section II.B.5(a) (state 
nonmember banks) and 12 CFR 390.466(b) (state savings associations).
---------------------------------------------------------------------------

    In contrast, under the proposal, if a banking organization provides 
a credit-enhancing representation or warranty on assets it sold or 
otherwise transferred to third parties, including early default clauses 
that permit the return of, or premium refund clauses covering, one-to-
four family residential first mortgage loans, the banking organization 
would treat such an arrangement as an off-balance sheet guarantee and 
apply a 100 percent CCF to determine the exposure amount, provided the 
exposure does not meet the definition of a securitization exposure. The 
agencies proposed a different treatment than the one under the general 
risk-based capital rules because of the risk to which banking 
organizations are exposed while credit-enhancing representations and

[[Page 55410]]

warranties are in effect. Some commenters asked for clarification on 
what qualifies as a credit-enhancing representation and warranty, and 
commenters made numerous suggestions for revising the proposed 
definition. In particular, they disagreed with the agencies' proposal 
to remove the exemptions related to early default clauses and premium 
refund clauses since these representations and warranties generally are 
considered to be low risk exposures and banking organizations are not 
currently required to hold capital against these representations and 
warranties.
    Some commenters encouraged the agencies to retain the 120-day safe 
harbor from the general risk-based capital rules, which would not 
require holding capital against assets sold with certain early default 
clauses of 120 days or less. These commenters argued that the proposal 
to remove the 120-day safe harbor would impede the ability of banking 
organizations to make loans and would increase the cost of credit to 
borrowers. Furthermore, certain commenters asserted that removal of the 
120-day safe harbor was not necessary for loan portfolios that are well 
underwritten, those for which put-backs are rare, and where the banking 
organization maintains robust buyback reserves.
    After reviewing the comments, the FDIC decided to retain in the 
interim final rule the 120-day safe harbor in the definition of credit-
enhancing representations and warranties for early default and premium 
refund clauses on one-to-four family residential mortgages that qualify 
for the 50 percent risk weight as well as for premium refund clauses 
that cover assets guaranteed, in whole or in part, by the U.S. 
government, a U.S. government agency, or a U.S. GSE. The FDIC 
determined that retaining the safe harbor would help to address 
commenters' confusion about what qualifies as a credit-enhancing 
representation and warranty. Therefore, consistent with the general 
risk-based capital rules, under the interim final rule, credit-
enhancing representations and warranties will not include (1) early 
default clauses and similar warranties that permit the return of, or 
premium refund clauses covering, one-to-four family first-lien 
residential mortgage loans that qualify for a 50 percent risk weight 
for a period not to exceed 120 days from the date of transfer; \124\ 
(2) premium refund clauses that cover assets guaranteed by the U.S. 
government, a U.S. Government agency, or a GSE, provided the premium 
refund clauses are for a period not to exceed 120 days from the date of 
transfer; or (3) warranties that permit the return of underlying 
exposures in instances of misrepresentation, fraud, or incomplete 
documentation.
---------------------------------------------------------------------------

    \124\ These warranties may cover only those loans that were 
originated within 1 year of the date of transfer.
---------------------------------------------------------------------------

    Some commenters requested clarification from the agencies regarding 
representations made about the value of the underlying collateral of a 
sold loan. For example, many purchasers of mortgage loans originated by 
banking organizations require that the banking organization repurchase 
the loan if the value of the collateral is other than as stated in the 
documentation provided to the purchaser or if there were any material 
misrepresentations in the appraisal process. The FDIC confirms that 
such representations meets the ``misrepresentation, fraud, or 
incomplete documentation'' exclusion in the definition of credit-
enhancing representations and warranties and is not subject to capital 
treatment.
    A few commenters also requested clarification regarding how the 
definition of credit-enhancing representations and warranties in the 
proposal interacts with Federal Home Loan Mortgage Corporation (FHLMC), 
Federal National Mortgage Association (FNMA), and Government National 
Mortgage Association (GNMA) sales conventions. These same commenters 
also requested verification in the interim final rule that mortgages 
sold with representations and warranties would all receive a 100 
percent risk weight, regardless of the characteristics of the mortgage 
exposure. First, the definition of credit-enhancing representations and 
warranties described in this interim final rule is separate from the 
sales conventions required by FLHMA, FNMA, and GNMA. Those entities 
will continue to set their own requirements for secondary sales, 
including representation and warranty requirements. Second, the risk 
weights applied to mortgage exposures themselves are not affected by 
the inclusion of representations and warranties. Mortgage exposures 
will continue to receive either a 50 or 100 percent risk weight, as 
outlined in section 32(g) of this interim final rule, regardless of the 
inclusion of representations and warranties when they are sold in the 
secondary market. If such representations and warranties meet the 
rule's definition of credit-enhancing representations and warranties, 
then the institution must maintain regulatory capital against the 
associated credit risk.
    Some commenters disagreed with the proposed methodology for 
determining the capital requirement for representations and warranties, 
and offered alternatives that they argued would conform to existing 
market practices and better incentivize high-quality underwriting. Some 
commenters indicated that many originators already hold robust buyback 
reserves and argued that the agencies should require originators to 
hold adequate liquidity in their buyback reserves, instead of requiring 
a duplicative capital requirement. Other commenters asked that any 
capital requirement be directly aligned to that originator's history of 
honoring representation and warranty claims. These commenters stated 
that originators who underwrite high-quality loans should not be 
required to hold as much capital against their representations and 
warranties as originators who exhibit what the commenters referred to 
as ``poor underwriting standards.'' Finally, a few commenters requested 
that the agencies completely remove, or significantly reduce, capital 
requirements for representations and warranties. They argue that the 
market is able to regulate itself, as a banking organization will not 
be able to sell its loans in the secondary market if they are 
frequently put back by the buyers.
    The FDIC considered these alternatives and has decided to finalize 
the proposed methodology for determining the capital requirement 
applied to representations and warranties without change. The FDIC is 
concerned that buyback reserves could be inadequate, especially if the 
housing market enters another prolonged downturn. Robust and clear 
capital requirements, in addition to separate buyback reserves held by 
originators, better ensure that representation and warranty claims will 
be fulfilled in times of stress. Furthermore, capital requirements 
based upon originators' historical representation and warranty claims 
are not only operationally difficult to implement and monitor, but they 
can also be misleading. Underwriting standards at firms are not static 
and can change over time. The FDIC believes that capital requirements 
based on past performance of a particular underwriter do not always 
adequately capture the current risks faced by that firm. The FDIC 
believes that the incorporation of the 120-day safe harbor in the 
interim final rule as discussed above addresses many of the commenters' 
concerns.
    Some commenters requested clarification on the duration of the 
capital treatment for credit-enhancing

[[Page 55411]]

representations and warranties. For instance, some commenters 
questioned whether capital is required for credit-enhancing 
representations and warranties after the contractual life of the 
representations and warranties has expired or whether capital has to be 
held for the life of the asset. Banking organizations are not required 
to hold capital for any credit-enhancing representation and warranty 
after the expiration of the representation or warranty, regardless of 
the maturity of the underlying loan.
    Additionally, commenters indicated that market practice for some 
representations and warranties for sold mortgages stipulates that 
originators only need to refund the buyer any servicing premiums and 
other earned fees in cases of early default, rather than requiring 
putback of the underlying loan to the seller. These commenters sought 
clarification as to whether the proposal would have required them to 
hold capital against the value of the underlying loan or only for the 
premium or fees that could be subject to a refund, as agreed upon in 
their contract with the buyer. For purposes of the interim final rule, 
an FDIC-supervised institution must hold capital only for the maximum 
contractual amount of the FDIC-supervised institution's exposure under 
the representations and warranties. In the case described by the 
commenters, the FDIC-supervised institution would hold capital against 
the value of the servicing premium and other earned fees, rather than 
the value of the underlying loan, for the duration specified in the 
representations and warranties agreement.
    Some commenters also requested exemptions from the proposed 
treatment of representations and warranties for particular originators, 
types of transactions, or asset categories. In particular, many 
commenters asked for an exemption for community banking organizations, 
claiming that the proposed treatment would lessen credit availability 
and increase the costs of lending. One commenter argued that bona fide 
mortgage sale agreements should be exempt from capital requirements. 
Other commenters requested an exemption for the portion of any off-
balance sheet asset that is subject to a risk retention requirement 
under section 941 of the Dodd-Frank Act and any regulations promulgated 
thereunder.\125\ Some commenters also requested that the agencies delay 
action on the proposal until the risk retention rule is finalized. 
Other commenters also requested exemptions for qualified mortgages (QM) 
and ``prime'' mortgage loans.
---------------------------------------------------------------------------

    \125\ See 15 U.S.C. 78o-11, et seq.
---------------------------------------------------------------------------

    The FDIC has decided not to adopt any of the specific exemptions 
suggested by the commenters. Although community banking organizations 
are critical to ensure the flow of credit to small businesses and 
individual borrowers, providing them with an exemption from the 
proposed treatment of credit-enhancing representations and warranties 
would be inconsistent with safety and soundness because the risks from 
these exposures to community banking organizations are no different 
than those to other banking organizations. The FDIC also has not 
provided exemptions in this rulemaking to portions of off-balance sheet 
assets subject to risk retention, QM, and ``prime loans.'' The relevant 
agencies have not yet adopted a final rule implementing the risk 
retention provisions of section 941 of the Dodd-Frank Act, and the 
FDIC, therefore, does not believe it is appropriate to provide an 
exemption relating to risk retention in this interim final rule. In 
addition, while the QM rulemaking is now final,\126\ the FDIC believes 
it is appropriate to first evaluate how the QM designation affects the 
mortgage market before requiring less capital to be held against off-
balance sheet assets that cover these loans. As noted above, the 
incorporation in the interim final rule of the 120-day safe harbor 
addresses many of the concerns about burden.
---------------------------------------------------------------------------

    \126\ See 12 CFR Part 1026.
---------------------------------------------------------------------------

    The risk-based capital treatment for off-balance sheet items in 
this interim final rule is consistent with section 165(k) of the Dodd-
Frank Act which provides that, in the case of a BHC with $50 billion or 
more in total consolidated assets, the computation of capital, for 
purposes of meeting capital requirements, shall take into account any 
off-balance-sheet activities of the company.\127\ The interim final 
rule complies with the requirements of section 165(k) of the Dodd-Frank 
Act by requiring a BHC to hold risk-based capital for its off-balance 
sheet exposures, as described in sections 324.31, 324.33, 324.34 and 
324.35 of the interim final rule.
---------------------------------------------------------------------------

    \127\ Section 165(k) of the Dodd-Frank Act (12 U.S.C. 5365(k)). 
This section defines an off-balance sheet activity as an existing 
liability of a company that is not currently a balance sheet 
liability, but may become one upon the happening of some future 
event. Such transactions may include direct credit substitutes in 
which a banking organization substitutes its own credit for a third 
party; irrevocable letters of credit; risk participations in 
bankers' acceptances; sale and repurchase agreements; asset sales 
with recourse against the seller; interest rate swaps; credit swaps; 
commodities contracts; forward contracts; securities contracts; and 
such other activities or transactions as the Board may define 
through a rulemaking.
---------------------------------------------------------------------------

D. Over-the-Counter Derivative Contracts

    In the Standardized Approach NPR, the agencies proposed generally 
to retain the treatment of OTC derivatives provided under the general 
risk-based capital rules, which is similar to the current exposure 
method (CEM) for determining the exposure amount for OTC derivative 
contracts contained in the Basel II standardized framework.\128\ 
Proposed revisions to the treatment of the OTC derivative contracts 
included an updated definition of an OTC derivative contract, a revised 
conversion factor matrix for calculating the PFE, a revision of the 
criteria for recognizing the netting benefits of qualifying master 
netting agreements and of financial collateral, and the removal of the 
50 percent risk weight cap for OTC derivative contracts.
---------------------------------------------------------------------------

    \128\ The general risk-based capital rules for state savings 
associations regarding the calculation of credit equivalent amounts 
for derivative contracts differ from the rules for other banking 
organizations. (See 12 CFR 390.466(a)(2)). The state savings 
association rules address only interest rate and foreign exchange 
rate contracts and include certain other differences. Accordingly, 
the description of the general risk-based capital rules in this 
preamble primarily reflects the rules applicable to state banks.
---------------------------------------------------------------------------

    The agencies received a number of comments on the proposed CEM 
relating to OTC derivatives. These comments generally focused on the 
revised conversion factor matrix, the proposed removal of the 50 
percent cap on risk weights for OTC derivative transactions in the 
general risk-based capital rules, and commenters' view that there is a 
lack of risk sensitivity in the calculation of the exposure amount of 
OTC derivatives and netting benefits. A specific discussion of the 
comments on particular aspects of the proposal follows.
    One commenter asserted that the proposed conversion factors for 
common interest rate and foreign exchange contracts, and risk 
participation agreements (a simplified form of credit default swaps) 
(set forth in Table 19 below), combined with the removal of the 50 
percent risk weight cap, would drive up banking organizations' capital 
requirements associated with these routine transactions and result in 
much higher transaction costs for small businesses. Another commenter 
asserted that the zero percent conversion factor assigned to interest 
rate derivatives with a remaining maturity of one year or less is not 
appropriate as the PFE incorrectly assumes all interest rate 
derivatives

[[Page 55412]]

always can be covered by taking a position in a liquid market.
    The FDIC acknowledges that the standardized matrix of conversion 
factors may be too simplified for some FDIC-supervised institutions. 
The FDIC believes, however, that the matrix approach appropriately 
balances the policy goals of simplicity and risk-sensitivity, and that 
the conversion factors themselves have been appropriately calibrated 
for the products to which they relate.
    Some commenters supported retention of the 50 percent risk weight 
cap for derivative exposures under the general risk-based capital 
rules. Specifically, one commenter argued that the methodology for 
calculating the exposure amount without the 50 percent risk weight cap 
would result in inappropriately high capital charge unless the 
methodology were amended to recognize the use of netting and 
collateral. Accordingly, the commenter encouraged the agencies to 
retain the 50 percent risk weight cap until the BCBS enhances the CEM 
to improve risk-sensitivity.
    The FDIC believes that as the market for derivatives has developed, 
the types of counterparties acceptable to participants have expanded to 
include counterparties that merit a risk weight greater than 50 
percent. In addition, the FDIC is aware of the ongoing work of the BCBS 
to improve the current exposure method and expect to consider any 
necessary changes to update the exposure amount calculation when the 
BCBS work is completed.
    Some commenters suggested that the agencies allow the use of 
internal models approved by the primary Federal supervisor as an 
alternative to the proposal, consistent with Basel III. The FDIC chose 
not to incorporate all of the methodologies included in the Basel II 
standardized framework in the interim final rule. The FDIC believes 
that, given the range of FDIC-supervised institutions that are subject 
to the interim final rule in the United States, it is more appropriate 
to permit only the proposed non-models based methodology for 
calculating OTC derivatives exposure amounts under the standardized 
approach. For larger and more complex FDIC-supervised institutions, the 
use of the internal model methodology and other models-based 
methodologies is permitted under the advanced approaches rule. One 
commenter asked the agencies to provide a definition for ``netting,'' 
as the meaning of this term differs widely under various master netting 
agreements used in industry practice. Another commenter asserted that 
net exposures are likely to understate actual exposures and the risk of 
early close-out posed to banking organizations facing financial 
difficulties, that the conversion factors for PFE are inappropriate, 
and that a better measure of risk tied to gross exposure is needed. 
With respect to the definition of netting, the FDIC notes that the 
definition of ``qualifying master netting agreement'' provides a 
functional definition of netting. With respect to the use of net 
exposure for purposes of determining PFE, the FDIC believes that, in 
light of the existing international framework to enforce netting 
arrangements together with the conditions for recognizing netting that 
are included in this interim final rule, the use of net exposure is 
appropriate in the context of a risk-based counterparty credit risk 
charge that is specifically intended to address default risk. The 
interim final rule also continues to limit full recognition of netting 
for purposes of calculating PFE for counterparty credit risk under the 
standardized approach.\129\
---------------------------------------------------------------------------

    \129\ See section 324.34(a)(2) of the interim final rule.
---------------------------------------------------------------------------

    Other commenters suggested adopting broader recognition of netting 
under the PFE calculation for netting sets, using a factor of 85 
percent rather than 60 percent in the formula for recognizing netting 
effects to be consistent with the BCBS CCP interim framework (which is 
defined and discussed in section VIII.E of this preamble, below). 
Another commenter suggested implementing a 15 percent haircut on the 
calculated exposure amount for failure to recognize risk mitigants and 
portfolio diversification. With respect to the commenters' request for 
greater recognition of netting in the calculation of PFE, the FDIC 
notes that the BCBS CCP interim framework's use of 85 percent 
recognition of netting was limited to the calculation of the 
hypothetical capital requirement of the QCCP for purposes of 
determining a clearing member banking organization's risk-weighted 
asset amount for its default fund contribution. As such, the interim 
final rule retains the proposed formula for recognizing netting effects 
for OTC derivative contracts that was set out in the proposal. The FDIC 
expects to consider whether it would be necessary to propose any 
changes to the CEM once BCBS discussions on this topic are complete.
    The proposed rule placed a cap on the PFE of sold credit 
protection, equal to the net present value of the amount of unpaid 
premiums. One commenter questioned the appropriateness of the proposed 
cap, and suggested that a seller's exposure be measured as the gross 
exposure amount of the credit protection provided on the name 
referenced in the credit derivative contract. The FDIC believes that 
the proposed approach is appropriate for measuring counterparty credit 
risk because it reflects the amount an FDIC-supervised institution may 
lose on its exposure to the counterparty that purchased protection. The 
exposure amount on a sold credit derivative would be calculated 
separately under section 34(a).
    Another commenter asserted that current credit exposure (netted and 
unnetted) understates or ignores the risk that the mark is inaccurate. 
Generally, the FDIC expects an FDIC-supervised institution to have in 
place policies and procedures regarding the valuation of positions, and 
that those processes would be reviewed in connection with routine and 
periodic supervisory examinations of an FDIC-supervised institution.
    The interim final rule generally adopts the proposed treatment for 
OTC derivatives without change. Under the interim final rule, as under 
the general risk-based capital rules, an FDIC-supervised institution is 
required to hold risk-based capital for counterparty credit risk for an 
OTC derivative contract. As defined in the rule, a derivative contract 
is a financial contract whose value is derived from the values of one 
or more underlying assets, reference rates, or indices of asset values 
or reference rates. A derivative contract includes an interest rate, 
exchange rate, equity, or a commodity derivative contract, a credit 
derivative, and any other instrument that poses similar counterparty 
credit risks. Derivative contracts also include unsettled securities, 
commodities, and foreign exchange transactions with a contractual 
settlement or delivery lag that is longer than the lesser of the market 
standard for the particular instrument or five business days. This 
applies, for example, to mortgage-backed securities (MBS) transactions 
that the GSEs conduct in the To-Be-Announced market.
    Under the interim final rule, an OTC derivative contract does not 
include a derivative contract that is a cleared transaction, which is 
subject to a specific treatment as described in section VIII.E of this 
preamble. However, an OTC derivative contract includes an exposure of a 
banking organization that is a clearing member banking organization to 
its clearing member client where the clearing member banking 
organization is either acting as a financial intermediary and

[[Page 55413]]

enters into an offsetting transaction with a CCP or where the clearing 
member banking organization provides a guarantee to the CCP on the 
performance of the client. The rationale for this treatment is the 
banking organization's continued exposure directly to the risk of the 
clearing member client. In recognition of the shorter close-out period 
for these transactions, however, the interim final rule permits an 
FDIC-supervised institution to apply a scaling factor to recognize the 
shorter holding period as discussed in section VIII.E of this preamble.
    To determine the risk-weighted asset amount for an OTC derivative 
contract under the interim final rule, an FDIC-supervised institution 
must first determine its exposure amount for the contract and then 
apply to that amount a risk weight based on the counterparty, eligible 
guarantor, or recognized collateral.
    For a single OTC derivative contract that is not subject to a 
qualifying master netting agreement (as defined further below in this 
section), the rule requires the exposure amount to be the sum of (1) 
the FDIC-supervised institution's current credit exposure, which is the 
greater of the fair value or zero, and (2) PFE, which is calculated by 
multiplying the notional principal amount of the OTC derivative 
contract by the appropriate conversion factor, in accordance with Table 
19 below.
    Under the interim final rule, the conversion factor matrix includes 
the additional categories of OTC derivative contracts as illustrated in 
Table 19. For an OTC derivative contract that does not fall within one 
of the specified categories in Table 19, the interim final rule 
requires PFE to be calculated using the ``other'' conversion factor.

                                          Table 19--Conversion Factor Matrix for OTC Derivative Contracts \130\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Credit       Credit (non-
                                                              Foreign      (investment-     investment-                      Precious
        Remaining maturity \131\           Interest rate   exchange rate       grade           grade          Equity      metals (except       Other
                                                             and gold        reference       reference                         gold)
                                                                           asset) \132\       asset)
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year or less........................           0.00            0.01             0.05            0.10            0.06            0.07            0.10
Greater than one year and less than or             0.005           0.05             0.05            0.10            0.08            0.07            0.12
 equal to five years....................
Greater than five years.................           0.015           0.075            0.05            0.10            0.10            0.08            0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \130\ For a derivative contract with multiple exchanges of 
principal, the conversion factor is multiplied by the number of 
remaining payments in the derivative contract.
    \131\ For a derivative contract that is structured such that on 
specified dates any outstanding exposure is settled and the terms 
are reset so that the market value of the contract is zero, the 
remaining maturity equals the time until the next reset date. For an 
interest rate derivative contract with a remaining maturity of 
greater than one year that meets these criteria, the minimum 
conversion factor is 0.005.
    \132\ A FDIC-supervised institution must use the column labeled 
``Credit (investment-grade reference asset)'' for a credit 
derivative whose reference asset is an outstanding unsecured long-
term debt security without credit enhancement that is investment 
grade. A FDIC-supervised institution must use the column labeled 
``Credit (non-investment-grade reference asset)'' for all other 
credit derivatives.
---------------------------------------------------------------------------

    For multiple OTC derivative contracts subject to a qualifying 
master netting agreement, an FDIC-supervised institution must calculate 
the exposure amount by adding the net current credit exposure and the 
adjusted sum of the PFE amounts for all OTC derivative contracts 
subject to the qualifying master netting agreement. Under the interim 
final rule, the net current credit exposure is the greater of zero and 
the net sum of all positive and negative fair values of the individual 
OTC derivative contracts subject to the qualifying master netting 
agreement. The adjusted sum of the PFE amounts must be calculated as 
described in section 34(a)(2)(ii) of the interim final rule.
    Under the interim final rule, to recognize the netting benefit of 
multiple OTC derivative contracts, the contracts must be subject to a 
qualifying master netting agreement; however, unlike under the general 
risk-based capital rules, under the interim final rule for most 
transactions, an FDIC-supervised institution may rely on sufficient 
legal review instead of an opinion on the enforceability of the netting 
agreement as described below.\133\ The interim final rule defines a 
qualifying master netting agreement as any written, legally enforceable 
netting agreement that creates a single legal obligation for all 
individual transactions covered by the agreement upon an event of 
default (including receivership, insolvency, liquidation, or similar 
proceeding) provided that certain conditions set forth in section 3 of 
the interim final rule are met.\134\ These conditions include 
requirements with respect to the FDIC-supervised institution's right to 
terminate the contract and liquidate collateral and meeting certain 
standards with respect to legal review of the agreement to ensure its 
meets the criteria in the definition.
---------------------------------------------------------------------------

    \133\ Under the general risk-based capital rules, to recognize 
netting benefits an FDIC-supervised institution must enter into a 
bilateral master netting agreement with its counterparty and obtain 
a written and well-reasoned legal opinion of the enforceability of 
the netting agreement for each of its netting agreements that cover 
OTC derivative contracts.
    \134\ The interim final rule adds a new section 3: Operational 
requirements for counterparty credit risk. This section organizes 
substantive requirements related to cleared transactions, eligible 
margin loans, qualifying cross-product master netting agreements, 
qualifying master netting agreements, and repo-style transactions in 
a central place to assist FDIC-supervised institutions in 
determining their legal responsibilities. These substantive 
requirements are consistent with those included in the proposal.
---------------------------------------------------------------------------

    The legal review must be sufficient so that the FDIC-supervised 
institution may conclude with a well-founded basis that, among other 
things, the contract would be found legal, binding, and enforceable 
under the law of the relevant jurisdiction and that the contract meets 
the other requirements of the definition. In some cases, the legal 
review requirement could be met by reasoned reliance on a commissioned 
legal opinion or an in-house counsel analysis. In other cases, for 
example, those involving certain new derivative transactions or 
derivative counterparties in jurisdictions where an FDIC-supervised 
institution has little experience, the FDIC-supervised institution 
would be expected to obtain an explicit, written legal opinion from 
external or internal legal counsel addressing the particular situation.
    Under the interim final rule, if an OTC derivative contract is 
collateralized by financial collateral, an FDIC-supervised institution 
must first

[[Page 55414]]

determine the exposure amount of the OTC derivative contract as 
described in this section of the preamble. Next, to recognize the 
credit risk mitigation benefits of the financial collateral, an FDIC-
supervised institution could use the simple approach for collateralized 
transactions as described in section 324.37(b) of the interim final 
rule. Alternatively, if the financial collateral is marked-to-market on 
a daily basis and subject to a daily margin maintenance requirement, an 
FDIC-supervised institution could adjust the exposure amount of the 
contract using the collateral haircut approach described in section 
324.37(c) of the interim final rule.
    Similarly, if an FDIC-supervised institution purchases a credit 
derivative that is recognized under section 324.36 of the interim final 
rule as a credit risk mitigant for an exposure that is not a covered 
position under subpart F, it is not required to compute a separate 
counterparty credit risk capital requirement for the credit derivative, 
provided it does so consistently for all such credit derivative 
contracts. Further, where these credit derivative contracts are subject 
to a qualifying master netting agreement, the FDIC-supervised 
institution must either include them all or exclude them all from any 
measure used to determine the counterparty credit risk exposure to all 
relevant counterparties for risk-based capital purposes.
    Under the interim final rule, an FDIC-supervised institution must 
treat an equity derivative contract as an equity exposure and compute 
its risk-weighted asset amount according to the simple risk-weight 
approach (SRWA) described in section 324.52 (unless the contract is a 
covered position under the market risk rule). If the FDIC-supervised 
institution risk weights a contract under the SRWA described in section 
324.52, it may choose not to hold risk-based capital against the 
counterparty risk of the equity contract, so long as it does so for all 
such contracts. Where the OTC equity contracts are subject to a 
qualified master netting agreement, an FDIC-supervised institution 
either includes or excludes all of the contracts from any measure used 
to determine counterparty credit risk exposures. If the FDIC-supervised 
institution is treating an OTC equity derivative contract as a covered 
position under subpart F, it also must calculate a risk-based capital 
requirement for counterparty credit risk of the contract under this 
section.
    In addition, if an FDIC-supervised institution provides protection 
through a credit derivative that is not a covered position under 
subpart F of the interim final rule, it must treat the credit 
derivative as an exposure to the underlying reference asset and compute 
a risk-weighted asset amount for the credit derivative under section 
324.32 of the interim final rule. The FDIC-supervised institution is 
not required to compute a counterparty credit risk capital requirement 
for the credit derivative, as long as it does so consistently for all 
such OTC credit derivative contracts. Further, where these credit 
derivative contracts are subject to a qualifying master netting 
agreement, the FDIC-supervised institution must either include all or 
exclude all such credit derivatives from any measure used to determine 
counterparty credit risk exposure to all relevant counterparties for 
risk-based capital purposes.
    Where the FDIC-supervised institution provides protection through a 
credit derivative treated as a covered position under subpart F, it 
must compute a supplemental counterparty credit risk capital 
requirement using an amount determined under section 324.34 for OTC 
credit derivative contracts or section 35 for credit derivatives that 
are cleared transactions. In either case, the PFE of the protection 
provider would be capped at the net present value of the amount of 
unpaid premiums.
    Under the interim final rule, the risk weight for OTC derivative 
transactions is not subject to any specific ceiling, consistent with 
the Basel capital framework.
    Although the FDIC generally adopted the proposal without change, 
the interim final rule has been revised to add a provision regarding 
the treatment of a clearing member FDIC-supervised institution's 
exposure to a clearing member client (as described below under 
``Cleared Transactions,'' a transaction between a clearing member FDIC-
supervised institution and a client is treated as an OTC derivative 
exposure). However, the interim final rule recognizes the shorter 
close-out period for cleared transactions that are derivative 
contracts, such that a clearing member FDIC-supervised institution can 
reduce its exposure amount to its client by multiplying the exposure 
amount by a scaling factor of no less than 0.71. See section VIII.E of 
this preamble, below, for additional discussion.

E. Cleared Transactions

    The BCBS and the FDIC support incentives designed to encourage 
clearing of derivative and repo-style transactions \135\ through a CCP 
wherever possible in order to promote transparency, multilateral 
netting, and robust risk-management practices.
---------------------------------------------------------------------------

    \135\ See section 324.2 of the interim final rule for the 
definition of a repo-style transaction.
---------------------------------------------------------------------------

    Although there are some risks associated with CCPs, as discussed 
below, the FDIC believes that CCPs generally help improve the safety 
and soundness of the derivatives and repo-style transactions markets 
through the multilateral netting of exposures, establishment and 
enforcement of collateral requirements, and the promotion of market 
transparency.
    As discussed in the proposal, when developing Basel III, the BCBS 
recognized that as more transactions move to central clearing, the 
potential for risk concentration and systemic risk increases. To 
address these concerns, in the period preceding the proposal, the BCBS 
sought comment on a more risk-sensitive approach for determining 
capital requirements for banking organizations' exposures to CCPs.\136\ 
In addition, to encourage CCPs to maintain strong risk-management 
procedures, the BCBS sought comment on a proposal for lower risk-based 
capital requirements for derivative and repo-style transaction 
exposures to CCPs that meet the standards established by the Committee 
on Payment and Settlement Systems (CPSS) and International Organization 
of Securities Commissions (IOSCO).\137\ Exposures to such entities, 
termed QCCPs in the interim final rule, would be subject to lower risk 
weights than exposures to CCPs that did not meet those criteria.
---------------------------------------------------------------------------

    \136\ See ``Capitalisation of Banking Organization Exposures to 
Central Counterparties'' (November 2011) (CCP consultative release), 
available at https://www.bis.org/publ/bcbs206.pdf.
    \137\ See CPSS-IOSCO, ``Recommendations for Central 
Counterparties'' (November 2004), available at https://www.bis.org/publ/cpss64.pdf?noframes=1.
---------------------------------------------------------------------------

    Consistent with the BCBS proposals and the CPSS-IOSCO standards, 
the agencies sought comment on specific risk-based capital requirements 
for cleared derivative and repo-style transactions that are designed to 
incentivize the use of CCPs, help reduce counterparty credit risk, and 
promote strong risk management of CCPs to mitigate their potential for 
systemic risk. In contrast to the general risk-based capital rules, 
which permit a banking organization to exclude certain derivative 
contracts traded on an exchange from the risk-based capital 
calculation, the proposal would have required a banking organization to 
hold risk-based capital for an outstanding derivative contract or a 
repo-style

[[Page 55415]]

transaction that has been cleared through a CCP, including an exchange.
    The proposal also included a capital requirement for default fund 
contributions to CCPs. In the case of non-qualifying CCPs (that is, 
CCPs that do not meet the risk-management, supervision, and other 
standards for QCCPs outlined in the proposal), the risk-weighted asset 
amount for default fund contributions to such CCPs would be equal to 
the sum of the banking organization's default fund contributions to the 
CCPs multiplied by 1,250 percent. In the case of QCCPs, the risk-
weighted asset amount would be calculated according to a formula based 
on the hypothetical capital requirement for a QCCP, consistent with the 
Basel capital framework. The proposal included a formula with inputs 
including the exposure amount of transactions cleared through the QCCP, 
collateral amounts, the number of members of the QCCP, and default fund 
contributions.
    Following issuance of the proposal, the BCBS issued an interim 
framework for the capital treatment of bank exposures to CCPs (BCBS CCP 
interim framework).\138\ The BCBS CCP interim framework reflects 
several key changes from the CCP consultative release, including: (1) A 
provision to allow a clearing member banking organization to apply a 
scalar when using the CEM (as described below) in the calculation of 
its exposure amount to a client (or use a reduced margin period of risk 
when using the internal models methodology (IMM) to calculate exposure 
at default (EAD) under the advanced approaches rule); (2) revisions to 
the risk weights applicable to a clearing member banking organization's 
exposures when such clearing member banking organization guarantees 
QCCP performance; (3) a provision to permit clearing member banking 
organizations to choose from one of two formulaic methodologies for 
determining the capital requirement for default fund contributions; and 
(4) revisions to the CEM formula to recognize netting to a greater 
extent for purposes of calculating the capital requirement for default 
fund contributions.
---------------------------------------------------------------------------

    \138\ See ``Capital requirements for bank exposures to central 
counterparties'' (July 2012), available at https://www.bis.org/publ/bcbs227.pdf.
---------------------------------------------------------------------------

    The agencies received a number of comments on the proposal relating 
to cleared transactions. Commenters also encouraged the agencies to 
revise certain aspects of the proposal in a manner consistent with the 
BCBS CCP interim framework.
    Some commenters asserted that the definition of QCCP should be 
revised, specifically by including a definitive list of QCCPs rather 
than requiring each banking organization to demonstrate that a CCP 
meets certain qualifying criteria. The FDIC believes that a static list 
of QCCPs would not reflect the potentially dynamic nature of a CCP, and 
that FDIC-supervised institutions are situated to make this 
determination on an ongoing basis.
    Some commenters recommended explicitly including derivatives 
clearing organizations (DCOs) and securities-based swap clearing 
agencies in the definition of a QCCP. Commenters also suggested 
including in the definition of QCCP any CCP that the CFTC or SEC 
exempts from registration because it is deemed by the CFTC or SEC to be 
subject to ``comparable, comprehensive supervision'' by another 
regulator. The FDIC notes that such registration (or exemption from 
registration based on being subject to ``comparable, comprehensive 
supervision'') does not necessarily mean that the CCP is subject to, or 
in compliance with, the standards established by the CPSS and IOSCO. In 
contrast, a designated FMU, which is included in the definition of 
QCCP, is subject to regulation that corresponds to such standards.
    Another commenter asserted that, consistent with the BCBS CCP 
interim framework, the interim final rule should provide for the 
designation of a QCCP by the agencies in the absence of a national 
regime for authorization and licensing of CCPs. The interim final rule 
has not been amended to include this aspect of the BCBS CCP interim 
framework because the FDIC believes a national regime for authorizing 
and licensing CCPs is a critical mechanism to ensure the compliance and 
ongoing monitoring of a CCP's adherence to internationally recognized 
risk-management standards. Another commenter requested that a three-
month grace period apply for CCPs that cease to be QCCPs. The FDIC 
notes that such a grace period was included in the proposed rule, and 
the interim final rule retains the proposed definition without 
substantive change.\139\
---------------------------------------------------------------------------

    \139\ This provision is located in sections 324.35 and 324.133 
of the interim final rule.
---------------------------------------------------------------------------

    With respect to the proposed definition of cleared transaction, 
some commenters asserted that the definition should recognize omnibus 
accounts because their collateral is bankruptcy-remote. The FDIC agrees 
with these commenters and has revised the operational requirements for 
cleared transactions to include an explicit reference to such accounts.
    The BCBS CCP interim framework requires trade portability to be 
``highly likely,'' as a condition of whether a trade satisfies the 
definition of cleared transaction. One commenter who encouraged the 
agencies to adopt the standards set forth in the BCBS CCP interim 
framework sought clarification of the meaning of ``highly likely'' in 
this context. The FDIC clarifies that, consistent with the BCBS CCP 
interim framework, if there is clear precedent for transactions to be 
transferred to a non-defaulting clearing member upon the default of 
another clearing member (commonly referred to as ``portability'') and 
there are no indications that such practice will not continue, then 
these factors should be considered, when assessing whether client 
positions are portable. The definition of ``cleared transaction'' in 
the interim final rule is discussed in further detail below.
    Another commenter sought clarification on whether reasonable 
reliance on a commissioned legal opinion for foreign financial 
jurisdictions could satisfy the ``sufficient legal review'' requirement 
for bankruptcy remoteness of client positions. The FDIC believes that 
reasonable reliance on a commissioned legal opinion could satisfy this 
requirement. Another commenter expressed concern that the proposed 
framework for cleared transactions would capture securities 
clearinghouses, and encouraged the agencies to clarify their intent 
with respect to such entities for purposes of the interim final rule. 
The FDIC notes that the definition of ``cleared transaction'' refers 
only to OTC derivatives and repo-style transactions. As a result, 
securities clearinghouses are not within the scope of the cleared 
transactions framework.
    One commenter asserted that the agencies should recognize varying 
close-out period conventions for specific cleared products, 
specifically exchange-traded derivatives. This commenter also asserted 
that the agencies should adjust the holding period assumptions or allow 
CCPs to use alternative methods to compute the appropriate haircut for 
cleared transactions. For purposes of this interim final rule, the FDIC 
retained a standard close-out period in the interest of avoiding 
unnecessary complexity, and note that cleared transactions with QCCPs 
attract extremely low risk weights (generally, 2 or 4 percent), which, 
in part, is in recognition of the shorter close-out period involved in 
cleared transactions.

[[Page 55416]]

    Another commenter requested confirmation that the risk weight 
applicable to the trade exposure amount for a cleared credit default 
swap (CDS) could be substituted for the risk weight assigned to an 
exposure that was hedged by the cleared CDS, that is, the substitution 
treatment described in sections 324.36 and 324.134 would apply. The 
FDIC confirms that under the interim final rule, an FDIC-supervised 
institution may apply the substitution treatment of sections 324.36 or 
324.134 to recognize the credit risk mitigation benefits of a cleared 
CDS as long as the CDS is an eligible credit derivative and meets the 
other criteria for recognition. Thus, if an FDIC-supervised institution 
purchases an eligible credit derivative as a hedge of an exposure and 
the eligible credit derivative qualifies as a cleared transaction, the 
FDIC-supervised institution may substitute the risk weight applicable 
to the cleared transaction under sections 324.35 or 324.133 of the 
interim final rule (instead of using the risk weight associated with 
the protection provider).\140\ Furthermore, the FDIC has modified the 
definition of eligible guarantor to include a QCCP.
---------------------------------------------------------------------------

    \140\ See ``Basel III counterparty credit risk and exposures to 
central counterparties--Frequently asked questions'' (December 2012 
(update of FAQs published in November 2012)), available at https://www.bis.org/publ/bcbs237.pdf.
---------------------------------------------------------------------------

    Another commenter asserted that the interim final rule should 
decouple the risk weights applied to collateral exposure and those 
assigned to other components of trade exposure to recognize the 
separate components of risk. The FDIC notes that, if collateral is 
bankruptcy remote, then it would not be included in the trade exposure 
amount calculation (see sections 324.35(b)(2) and 324.133(b)(2) of the 
interim final rule). The FDIC also notes that such collateral must be 
risk weighted in accordance with other sections of the interim final 
rule as appropriate, to the extent that the posted collateral remains 
an asset on an FDIC-supervised institution's balance sheet.
    A number of commenters addressed the use of the CEM for purposes of 
calculating a capital requirement for a default fund contribution to a 
CCP (Kccp).\141\ Some commenters asserted that the CEM is 
not appropriate for determining the hypothetical capital requirement 
for a QCCP (Kccp) under the proposed formula because it 
lacks risk sensitivity and sophistication, and was not developed for 
centrally-cleared transactions. Another commenter asserted that the use 
of CEM should be clarified in the clearing context, specifically, 
whether the modified CEM approach would permit the netting of 
offsetting positions booked under different ``desk IDs'' or ``hub 
accounts'' for a given clearing member banking organization. Another 
commenter encouraged the agencies to allow banking organizations to use 
the IMM to calculate Kccp. Another commenter encouraged the 
agencies to continue to work with the BCBS to harmonize international 
and domestic capital rules for cleared transactions.
---------------------------------------------------------------------------

    \141\ See section VIII.D of this preamble for a description of 
the CEM.
---------------------------------------------------------------------------

    Although the FDIC recognizes that the CEM has certain limitations, 
it considers the CEM, as modified for cleared transactions, to be a 
reasonable approach that would produce consistent results across 
banking organizations. Regarding the commenter's request for 
clarification of netting positions across ``desk IDs'' or ``hub 
accounts,'' the CEM would recognize netting across such transactions if 
such netting is legally enforceable upon a CCP's default. Moreover, the 
FDIC believes that the use of models either by the CCP, whose model 
would not be subject to review and approval by the FDIC, or by the 
banking organizations, whose models may vary significantly, likely 
would produce inconsistent results that would not serve as a basis for 
comparison across banking organizations. The FDIC recognizes that 
additional work is being performed by the BCBS to revise the CCP 
capital framework and the CEM. The FDIC expects to modify the interim 
final rule to incorporate the BCBS improvements to the CCP capital 
framework and CEM through the normal rulemaking process.
    Other commenters suggested that the agencies not allow preferential 
treatment for clearinghouses, which they asserted are systemically 
critical institutions. In addition, some of these commenters argued 
that the agency clearing model should receive a more favorable capital 
requirement because the agency relationship facilitates protection and 
portability of client positions in the event of a clearing member 
default, compared to the back-to-back principal model. As noted above, 
the FDIC acknowledges that as more transactions move to central 
clearing, the potential for risk concentration and systemic risk 
increases. As noted in the proposal, the risk weights applicable to 
cleared transactions with QCCPs (generally 2 or 4 percent) represent an 
increase for many cleared transactions as compared to the general risk-
based capital rules (which exclude from the risk-based ratio 
calculations exchange rate contracts with an original maturity of 
fourteen or fewer calendar days and derivative contracts traded on 
exchanges that require daily receipt and payment of cash variation 
margin),\142\ in part to reflect the increased concentration and 
systemic risk inherent in such transactions. In regards to the agency 
clearing model, the FDIC notes that a clearing member banking 
organization that acts as an agent for a client and that guarantees the 
client's performance to the QCCP would have no exposure to the QCCP to 
risk weight. The exposure arising from the guarantee would be treated 
as an OTC derivative with a reduced holding period, as discussed below.
---------------------------------------------------------------------------

    \142\ See 12 CFR part 325, appendix A, section II.E.2.
---------------------------------------------------------------------------

    Another commenter suggested that the interim final rule address the 
treatment of unfunded default fund contribution amounts and potential 
future contributions to QCCPs, noting that the treatment of these 
potential exposures is not addressed in the BCBS CCP interim framework. 
The FDIC has clarified in the interim final rule that if an FDIC-
supervised institution's unfunded default fund contribution to a CCP is 
unlimited, the FDIC will determine the risk-weighted asset amount for 
such default fund contribution based on factors such as the size, 
structure, and membership of the CCP and the riskiness of its 
transactions. The interim final rule does not contemplate unlimited 
default fund contributions to QCCPs because defined default fund 
contribution amounts are a prerequisite to being a QCCP.
    Another commenter asserted that it is unworkable to require 
securities lending transactions to be conducted through a CCP, and that 
it would be easier and more sensible to make the appropriate 
adjustments in the interim final rule to ensure a capital treatment for 
securities lending transactions that is proportional to their actual 
risks. The FDIC notes that the proposed rule would not have required 
securities lending transactions to be cleared. The FDIC also 
acknowledges that clearing may not be widely available for securities 
lending transactions, and believes that the collateral haircut approach 
(sections 324.37(c) and 324.132(b) of the interim final rule) and for 
advanced approaches FDIC-supervised institutions, the simple value-at-
risk (VaR) and internal models methodologies (sections 324.132(b)(3) 
and (d) of the interim final rule) are an appropriately risk-sensitive 
exposure measure for non-cleared securities lending exposures.
    One commenter asserted that end users and client-cleared trades 
would be

[[Page 55417]]

disadvantaged by the proposal. Although there may be increased 
transaction costs associated with the introduction of the CCP 
framework, the FDIC believes that the overall risk mitigation that 
should result from the capital requirements generated by the framework 
will help promote financial stability, and that the measures the FDIC 
has taken in the interim final rule to incentivize client clearing are 
aimed at addressing the commenters' concerns. Several commenters 
suggested that the proposed rule created a disincentive for client 
clearing because of the clearing member banking organization's exposure 
to the client. The FDIC agrees with the need to mitigate disincentives 
for client clearing in the methodology, and has amended the interim 
final rule to reflect a lower margin period of risk, or holding period, 
as applicable, as discussed further below.
    Commenters suggested delaying implementation of a cleared 
transactions framework in the interim final rule until the BCBS CCP 
interim framework is finalized, implementing the BCBS CCP interim 
framework in the interim final rule pending finalization of the BCBS 
interim framework, or providing a transition period for banking 
organizations to be able to comply with some of the requirements. A 
number of commenters urged the agencies to incorporate all substantive 
changes of the BCBS CCP interim framework, ranging from minor 
adjustments to more material modifications.
    After considering the comments and reviewing the standards in the 
BCBS CCP interim framework, the FDIC believes that the modifications to 
capital standards for cleared transactions in the BCBS CCP interim 
framework are appropriate and believes that they would result in 
modifications that address many commenters' concerns. Furthermore, the 
FDIC believes that it is prudent to implement the BCBS CCP interim 
framework, rather than wait for the final framework, because the 
changes in the BCBS CCP interim framework represent a sound approach to 
mitigating the risks associated with cleared transactions. Accordingly, 
the FDIC has incorporated the material elements of the BCBS CCP interim 
framework into the interim final rule. In addition, given the delayed 
effective date of the interim final rule, the FDIC believes that an 
additional transition period, as suggested by some commenters, is not 
necessary.
    The material changes to the proposed rule to incorporate the CCP 
interim rule are described below. Other than these changes, the interim 
final rule retains the capital requirements for cleared transaction 
exposures generally as proposed by the agencies. As noted in the 
proposal, the international discussions are ongoing on these issues, 
and the FDIC will revisit this issue once the Basel capital framework 
is revised.
1. Definition of Cleared Transaction
    The interim final rule defines a cleared transaction as an exposure 
associated with an outstanding derivative contract or repo-style 
transaction that an FDIC-supervised institution or clearing member has 
entered into with a CCP (that is, a transaction that a CCP has 
accepted).\143\ Cleared transactions include the following: (1) A 
transaction between a CCP and a clearing member FDIC-supervised 
institution for the FDIC-supervised institution's own account; (2) a 
transaction between a CCP and a clearing member FDIC-supervised 
institution acting as a financial intermediary on behalf of its 
clearing member client; (3) a transaction between a client FDIC-
supervised institution and a clearing member where the clearing member 
acts on behalf of the client FDIC-supervised institution and enters 
into an offsetting transaction with a CCP; and (4) a transaction 
between a clearing member client and a CCP where a clearing member 
FDIC-supervised institution guarantees the performance of the clearing 
member client to the CCP. Such transactions must also satisfy 
additional criteria provided in section 3 of the interim final rule, 
including bankruptcy remoteness of collateral, transferability 
criteria, and portability of the clearing member client's position. As 
explained above, the FDIC has modified the definition in the interim 
final rule to specify that regulated omnibus accounts meet the 
requirement for bankruptcy remoteness.
---------------------------------------------------------------------------

    \143\ For example, the FDIC expects that a transaction with a 
derivatives clearing organization (DCO) would meet the criteria for 
a cleared transaction. A DCO is a clearinghouse, clearing 
association, clearing corporation, or similar entity that enables 
each party to an agreement, contract, or transaction to substitute, 
through novation or otherwise, the credit of the DCO for the credit 
of the parties; arranges or provides, on a multilateral basis, for 
the settlement or netting of obligations; or otherwise provides 
clearing services or arrangements that mutualize or transfer credit 
risk among participants. To qualify as a DCO, an entity must be 
registered with the U.S. Commodity Futures Trading Commission and 
comply with all relevant laws and procedures.
---------------------------------------------------------------------------

    An FDIC-supervised institution is required to calculate risk-
weighted assets for all of its cleared transactions, whether the FDIC-
supervised institution acts as a clearing member (defined as a member 
of, or direct participant in, a CCP that is entitled to enter into 
transactions with the CCP) or a clearing member client (defined as a 
party to a cleared transaction associated with a CCP in which a 
clearing member acts either as a financial intermediary with respect to 
the party or guarantees the performance of the party to the CCP).
    Derivative transactions that are not cleared transactions because 
they do not meet all the criteria are OTC derivative transactions. For 
example, if a transaction submitted to the CCP is not accepted by the 
CCP because the terms of the transaction submitted by the clearing 
members do not match or because other operational issues are identified 
by the CCP, the transaction does not meet the definition of a cleared 
transaction and is an OTC derivative transaction. If the counterparties 
to the transaction resolve the issues and resubmit the transaction and 
it is accepted, the transaction would then be a cleared transaction. A 
cleared transaction does not include an exposure of an FDIC-supervised 
institution that is a clearing member to its clearing member client 
where the FDIC-supervised institution is either acting as a financial 
intermediary and enters into an offsetting transaction with a CCP or 
where the FDIC-supervised institution provides a guarantee to the CCP 
on the performance of the client. Under the standardized approach, as 
discussed below, such a transaction is an OTC derivative transaction 
with the exposure amount calculated according to section 324.34(e) of 
the interim final rule or a repo-style transaction with the exposure 
amount calculated according to section 324.37(c) of the interim final 
rule. Under the advanced approaches rule, such a transaction is treated 
as either an OTC derivative transaction with the exposure amount 
calculated according to sections 324.132(c)(8) or (d)(5)(iii)(C) of the 
interim final rule or a repo-style transaction with the exposure amount 
calculated according to sections 324.132(b) or (d) of the interim final 
rule.
2. Exposure Amount Scalar for Calculating for Client Exposures
    Under the proposal, a transaction between a clearing member FDIC-
supervised institution and a client was treated as an OTC derivative 
exposure, with the exposure amount calculated according to sections 
324.34 or 324.132 of the proposal. The agencies acknowledged in the 
proposal that this treatment could have created disincentives for 
banking organizations to facilitate client clearing. Commenters' 
feedback and the BCBS CCP interim framework's treatment on this subject

[[Page 55418]]

provided alternatives to address the incentive concern.
    Consistent with comments and the BCBS CCP interim framework, under 
the interim final rule, a clearing member FDIC-supervised institution 
must treat its counterparty credit risk exposure to clients as an OTC 
derivative contract, irrespective of whether the clearing member FDIC-
supervised institution guarantees the transaction or acts as an 
intermediary between the client and the QCCP. Consistent with the BCBS 
CCP interim framework, to recognize the shorter close-out period for 
cleared transactions, under the standardized approach a clearing member 
FDIC-supervised institution may calculate its exposure amount to a 
client by multiplying the exposure amount, calculated using the CEM, by 
a scaling factor of no less than 0.71, which represents a five-day 
holding period. A clearing member FDIC-supervised institution must use 
a longer holding period and apply a larger scaling factor to its 
exposure amount in accordance with Table 20 if it determines that a 
holding period longer than five days is appropriate. The FDIC may 
require a clearing member FDIC-supervised institution to set a longer 
holding period if it determines that a longer period is commensurate 
with the risks associated with the transaction. The FDIC believes that 
the recognition of a shorter close-out period appropriately captures 
the risk associated with such transactions while furthering the policy 
goal of promoting central clearing.

              Table 20--Holding Periods and Scaling Factors
------------------------------------------------------------------------
                Holding period (days)                    Scaling factor
------------------------------------------------------------------------
5....................................................               0.71
6....................................................               0.77
7....................................................               0.84
8....................................................               0.89
9....................................................               0.95
10...................................................               1.00
------------------------------------------------------------------------

3. Risk Weighting for Cleared Transactions
    Under the interim final rule, to determine the risk-weighted asset 
amount for a cleared transaction, a clearing member client FDIC-
supervised institution or a clearing member FDIC-supervised institution 
must multiply the trade exposure amount for the cleared transaction by 
the appropriate risk weight, determined as described below. The trade 
exposure amount is calculated as follows:
    (1) For a cleared transaction that is a derivative contract or a 
netting set of derivatives contracts, the trade exposure amount is 
equal to the exposure amount for the derivative contract or netting set 
of derivative contracts, calculated using the CEM for OTC derivative 
contracts (described in sections 324.34 or 324.132(c) of the interim 
final rule) or for advanced approaches FDIC-supervised institutions 
that use the IMM, under section 324.132(d) of the interim final rule), 
plus the fair value of the collateral posted by the clearing member 
client FDIC-supervised institution and held by the CCP or clearing 
member in a manner that is not bankruptcy remote; and
    (2) For a cleared transaction that is a repo-style transaction or a 
netting set of repo-style transactions, the trade exposure amount is 
equal to the exposure amount calculated under the collateral haircut 
approach used for financial collateral (described in sections 324.37(c) 
and 324.132(b) of the interim final rule) (or for advanced approaches 
FDIC-supervised institutions the IMM under section 324.132(d) of the 
interim final rule) plus the fair value of the collateral posted by the 
clearing member client FDIC-supervised institution that is held by the 
CCP or clearing member in a manner that is not bankruptcy remote.
    The trade exposure amount does not include any collateral posted by 
a clearing member client FDIC-supervised institution or clearing member 
FDIC-supervised institution that is held by a custodian in a manner 
that is bankruptcy remote \144\ from the CCP, clearing member, other 
counterparties of the clearing member, and the custodian itself. In 
addition to the capital requirement for the cleared transaction, the 
FDIC-supervised institution remains subject to a capital requirement 
for any collateral provided to a CCP, a clearing member, or a custodian 
in connection with a cleared transaction in accordance with section 
324.32 or 324.131 of the interim final rule. Consistent with the BCBS 
CCP interim framework, the risk weight for a cleared transaction 
depends on whether the CCP is a QCCP. Central counterparties that are 
designated FMUs and foreign entities regulated and supervised in a 
manner equivalent to designated FMUs are QCCPs. In addition, a CCP 
could be a QCCP under the interim final rule if it is in sound 
financial condition and meets certain standards that are consistent 
with BCBS expectations for QCCPs, as set forth in the QCCP definition.
---------------------------------------------------------------------------

    \144\ Under the interim final rule, bankruptcy remote, with 
respect to an entity or asset, means that the entity or asset would 
be excluded from an insolvent entity's estate in a receivership, 
insolvency or similar proceeding.
---------------------------------------------------------------------------

    A clearing member FDIC-supervised institution must apply a 2 
percent risk weight to its trade exposure amount to a QCCP. An FDIC-
supervised institution that is a clearing member client may apply a 2 
percent risk weight to the trade exposure amount only if:
    (1) The collateral posted by the clearing member client FDIC-
supervised institution to the QCCP or clearing member is subject to an 
arrangement that prevents any losses to the clearing member client due 
to the joint default or a concurrent insolvency, liquidation, or 
receivership proceeding of the clearing member and any other clearing 
member clients of the clearing member, and
    (2) The clearing member client FDIC-supervised institution has 
conducted sufficient legal review to conclude with a well-founded basis 
(and maintains sufficient written documentation of that legal review) 
that in the event of a legal challenge (including one resulting from 
default or a liquidation, insolvency, or receivership proceeding) the 
relevant court and administrative authorities would find the 
arrangements to be legal, valid, binding, and enforceable under the law 
of the relevant jurisdiction.
    If the criteria above are not met, a clearing member client FDIC-
supervised institution must apply a risk weight of 4 percent to the 
trade exposure amount.
    Under the interim final rule, as under the proposal, for a cleared 
transaction with a CCP that is not a QCCP, a clearing member FDIC-
supervised institution and a clearing member client FDIC-supervised 
institution must risk weight the trade exposure amount to the CCP 
according to the risk weight applicable to the CCP under section 324.32 
of the interim final rule (generally, 100 percent). Collateral posted 
by a clearing member FDIC-supervised institution that is held by a 
custodian in a manner that is bankruptcy remote from the CCP is not 
subject to a capital requirement for counterparty credit risk. 
Similarly, collateral posted by a clearing member client that is held 
by a custodian in a manner that is bankruptcy remote from the CCP, 
clearing member, and other clearing member clients of the clearing 
member is not be subject to a capital requirement for counterparty 
credit risk.
    The proposed rule was silent on the risk weight that would apply 
where a clearing member banking organization acts for its own account 
or guarantees a QCCP's performance to a client. Consistent with the 
BCBS CCP interim framework, the interim final rule provides additional 
specificity regarding the risk-weighting methodologies for certain 
exposures of clearing member

[[Page 55419]]

banking organizations. The interim final rule provides that a clearing 
member FDIC-supervised institution that (i) acts for its own account, 
(ii) is acting as a financial intermediary (with an offsetting 
transaction or a guarantee of the client's performance to a QCCP), or 
(iii) guarantees a QCCP's performance to a client would apply a two 
percent risk weight to the FDIC-supervised institution's exposure to 
the QCCP. The diagrams below demonstrate the various potential 
transactions and exposure treatment in the interim final rule. Table 21 
sets out how the transactions illustrated in the diagrams below are 
risk-weighted under the interim final rule.
    In the diagram, ``T'' refers to a transaction, and the arrow 
indicates the direction of the exposure. The diagram describes the 
appropriate risk weight treatment for exposures from the perspective of 
a clearing member FDIC-supervised institution entering into cleared 
transactions for its own account (T1), a clearing member 
FDIC-supervised institution entering into cleared transactions on 
behalf of a client (T2 through T7), and an FDIC-
supervised institution entering into cleared transactions as a client 
of a clearing member (T8 and T9). Table 21 shows 
for each trade whom the exposure is to, a description of the type of 
trade, and the risk weight that would apply based on the risk of the 
counterparty.
BILLING CODE 6714-01-P

[[Page 55420]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.001


[[Page 55421]]


[GRAPHIC] [TIFF OMITTED] TR10SE13.002

BILLING CODE 6714-01-C

                             Table 21--Risk Weights for Various Cleared Transactions
----------------------------------------------------------------------------------------------------------------
                                                                                        Risk-weighting treatment
                                        Exposure to                  Description         under the interim final
                                                                                                  rule
----------------------------------------------------------------------------------------------------------------
T1...........................  QCCP.........................  Own account.............  2% risk weight on trade
                                                                                         exposure amount.
T2...........................  Client.......................  Financial intermediary    OTC derivative with CEM
                                                               with offsetting trade     scalar.**
                                                               to QCCP.
T3...........................  QCCP.........................  Financial intermediary    2% risk weight on trade
                                                               with offsetting trade     exposure amount.
                                                               to QCCP.
T4...........................  Client.......................  Agent with guarantee of   OTC derivative with CEM
                                                               client performance.       scalar.**
T5...........................  QCCP.........................  Agent with guarantee of   No exposure.
                                                               client performance.
T6...........................  Client.......................  Guarantee of QCCP         OTC derivative with CEM
                                                               performance.              scalar.**
T7...........................  QCCP.........................  Guarantee of QCCP         2% risk weight on trade
                                                               performance.              exposure amount.
T8...........................  CM...........................  CM financial              2% or 4%* risk weight on
                                                               intermediary with         trade exposure amount.
                                                               offsetting trade to
                                                               QCCP.
T9...........................  QCCP.........................  CM agent with guarantee   2% or 4%* risk weight on
                                                               of client performance.    trade exposure amount.
----------------------------------------------------------------------------------------------------------------

4. Default Fund Contribution Exposures
    There are several risk mitigants available when a party clears a 
transaction through a CCP rather than on a bilateral basis: The 
protection provided to the CCP clearing members by the margin 
requirements imposed by the CCP; the CCP members' default fund 
contributions; and the CCP's own capital and contribution to the 
default fund, which are an important source of collateral in case of 
counterparty default.\145\ CCPs independently determine default fund 
contributions that are required from members. The BCBS therefore 
established, and the interim final rule adopts, a risk-sensitive 
approach for risk weighting an FDIC-supervised institution's exposure 
to a default fund.
---------------------------------------------------------------------------

    \145\ Default funds are also known as clearing deposits or 
guaranty funds.
---------------------------------------------------------------------------

    Under the proposed rule, there was only one method that a clearing 
member banking organization could use to calculate its risk-weighted 
asset amount for default fund contributions. The BCBS CCP interim 
framework added a second method to better reflect the lower risks 
associated with exposures to those clearinghouses that have relatively 
large default funds with a significant amount unfunded. Commenters 
requested that the interim final rule adopt both methods contained in 
the BCBS CCP interim framework.
    Accordingly, under the interim final rule, an FDIC-supervised 
institution that is a clearing member of a CCP must calculate the risk-
weighted asset amount for its default fund contributions at least 
quarterly or more frequently if there is a material change, in the 
opinion of the FDIC-supervised institution or FDIC, in the financial 
condition of the CCP. A default fund contribution means the funds 
contributed or commitments made by a clearing member to a CCP's 
mutualized loss-sharing arrangement. If the CCP is not a QCCP, the 
FDIC-supervised institution's risk-weighted asset amount for its 
default fund contribution is either the sum of the default fund 
contributions multiplied by 1,250 percent, or in cases where the 
default fund contributions may be unlimited, an amount as determined by 
the FDIC based on factors described above.
    Consistent with the BCBS CCP interim framework, the interim final 
rule requires an FDIC-supervised institution to calculate a risk-
weighted asset amount for its default fund contribution using one of 
two methods. Method one requires a clearing member FDIC-supervised 
institution to use a three-step process. The first step is for the 
clearing member FDIC-supervised institution to calculate the QCCP's 
hypothetical capital requirement (KCCP), unless the QCCP has 
already disclosed it, in which case the FDIC-supervised institution 
must rely on that disclosed figure, unless the FDIC-supervised 
institution determines that a higher figure is appropriate based on the 
nature, structure, or characteristics of the QCCP. KCCP is 
defined as the capital that a QCCP is required to hold if it were an 
FDIC-supervised institution, and is calculated using the CEM for OTC 
derivatives or the collateral haircut approach for repo-style 
transactions, recognizing the risk-mitigating effects of collateral 
posted by and default fund contributions received from the QCCP 
clearing members.
    The interim final rule provides several modifications to the 
calculation of KCCP to adjust for certain features that are 
unique to QCCPs. Namely, the modifications permit: (1) A clearing 
member to offset its exposure to a QCCP with actual default fund 
contributions, and (2) greater recognition of netting when using the 
CEM to calculate KCCP described below. Additionally, the 
risk weight of all clearing members is set at 20 percent, except when 
the FDIC has determined that a higher risk weight is appropriate based 
on the specific characteristics of the QCCP and its clearing members. 
Finally, for derivative contracts that are options, the PFE amount 
calculation is adjusted by multiplying the notional principal amount of 
the derivative contract by the appropriate conversion factor and the 
absolute value of the option's delta (that is, the ratio of the change 
in the value of the derivative contract to the

[[Page 55422]]

corresponding change in the price of the underlying asset).
    In the second step of method one, the interim final rule requires 
an FDIC-supervised institution to compare KCCP to the funded 
portion of the default fund of a QCCP, and to calculate the total of 
all the clearing members' capital requirements (K*cm). If 
the total funded default fund of a QCCP is less than KCCP, 
the interim final rule requires additional capital to be assessed 
against the shortfall because of the small size of the funded portion 
of the default fund relative to KCCP. If the total funded 
default fund of a QCCP is greater than KCCP, but the QCCP's 
own funded contributions to the default fund are less than 
KCCP (so that the clearing members' default fund 
contributions are required to achieve KCCP), the clearing 
members' default fund contributions up to KCCP are risk-
weighted at 100 percent and a decreasing capital factor, between 1.6 
percent and 0.16 percent, is applied to the clearing members' funded 
default fund contributions above KCCP. If the QCCP's own 
contribution to the default fund is greater than KCCP, then 
only the decreasing capital factor is applied to the clearing members' 
default fund contributions.
    In the third step of method one, the interim final rule requires 
(K*cm) to be allocated back to each individual clearing 
member. This allocation is proportional to each clearing member's 
contribution to the default fund but adjusted to reflect the impact of 
two average-size clearing members defaulting as well as to account for 
the concentration of exposures among clearing members. A clearing 
member FDIC-supervised institution multiplies its allocated capital 
requirement by 12.5 to determine its risk-weighted asset amount for its 
default fund contribution to the QCCP.
    As the alternative, an FDIC-supervised institution is permitted to 
use method two, which is a simplified method under which the risk-
weighted asset amount for its default fund contribution to a QCCP 
equals 1,250 percent multiplied by the default fund contribution, 
subject to an overall cap. The cap is based on an FDIC-supervised 
institution's trade exposure amount for all of its transactions with a 
QCCP. An FDIC-supervised institution's risk-weighted asset amount for 
its default fund contribution to a QCCP is either a 1,250 percent risk 
weight applied to its default fund contribution to that QCCP or 18 
percent of its trade exposure amount to that QCCP. Method two subjects 
an FDIC-supervised institution to an overall cap on the risk-weighted 
assets from all its exposures to the CCP equal to 20 percent times the 
trade exposures to the CCP. This 20 percent cap is arrived at as the 
sum of the 2 percent capital requirement for trade exposure plus 18 
percent for the default fund portion of an FDIC-supervised 
institution's exposure to a QCCP.
    To address commenter concerns that the CEM underestimates the 
multilateral netting benefits arising from a QCCP, the interim final 
rule recognizes the larger diversification benefits inherent in a 
multilateral netting arrangement for purposes of measuring the QCCP's 
potential future exposure associated with derivative contracts. 
Consistent with the BCBS CCP interim framework, and as mentioned above, 
the interim final rule replaces the proposed factors (0.3 and 0.7) in 
the formula to calculate Anet with 0.15 and 0.85, in sections 
324.35(d)(3)(i)(A)(1) and 324.133(d)(3)(i)(A)(1) of the interim final 
rule, respectively.

F. Credit Risk Mitigation

    Banking organizations use a number of techniques to mitigate credit 
risks. For example, a banking organization may collateralize exposures 
with cash or securities; a third party may guarantee an exposure; a 
banking organization may buy a credit derivative to offset an 
exposure's credit risk; or a banking organization may net exposures 
with a counterparty under a netting agreement. The general risk-based 
capital rules recognize these techniques to some extent. This section 
of the preamble describes how the interim final rule allows FDIC-
supervised institutions to recognize the risk-mitigation effects of 
guarantees, credit derivatives, and collateral for risk-based capital 
purposes. In general, the interim final rule provides for a greater 
variety of credit risk mitigation techniques than the general risk-
based capital rules.
    Similar to the general risk-based capital rules, under the interim 
final rule an FDIC-supervised institution generally may use a 
substitution approach to recognize the credit risk mitigation effect of 
an eligible guarantee from an eligible guarantor and the simple 
approach to recognize the effect of collateral. To recognize credit 
risk mitigants, all FDIC-supervised institutions must have operational 
procedures and risk-management processes that ensure that all 
documentation used in collateralizing or guaranteeing a transaction is 
legal, valid, binding, and enforceable under applicable law in the 
relevant jurisdictions. An FDIC-supervised institution should conduct 
sufficient legal review to reach a well-founded conclusion that the 
documentation meets this standard as well as conduct additional reviews 
as necessary to ensure continuing enforceability.
    Although the use of credit risk mitigants may reduce or transfer 
credit risk, it simultaneously may increase other risks, including 
operational, liquidity, or market risk. Accordingly, an FDIC-supervised 
institution should employ robust procedures and processes to control 
risks, including roll-off and concentration risks, and monitor and 
manage the implications of using credit risk mitigants for the FDIC-
supervised institution's overall credit risk profile.
1. Guarantees and Credit Derivatives
a. Eligibility Requirements
    Consistent with the Basel capital framework, the agencies proposed 
to recognize a wider range of eligible guarantors than permitted under 
the general risk-based capital rules, including sovereigns, the Bank 
for International Settlements, the International Monetary Fund, the 
European Central Bank, the European Commission, Federal Home Loan Banks 
(FHLB), Federal Agricultural Mortgage Corporation (Farmer Mac), MDBs, 
depository institutions, BHCs, SLHCs, credit unions, and foreign banks. 
Eligible guarantors would also include entities that are not special 
purpose entities that have issued and outstanding unsecured debt 
securities without credit enhancement that are investment grade and 
that meet certain other requirements.\146\
---------------------------------------------------------------------------

    \146\ Under the proposed and interim final rule, an exposure is 
``investment grade'' if the entity to which the FDIC-supervised 
institution is exposed through a loan or security, or the reference 
entity with respect to a credit derivative, has adequate capacity to 
meet financial commitments for the projected life of the asset or 
exposure. Such an entity or reference entity has adequate capacity 
to meet financial commitments if the risk of its default is low and 
the full and timely repayment of principal and interest is expected.
---------------------------------------------------------------------------

    Some commenters suggested modifying the proposed definition of 
eligible guarantor to remove the investment-grade requirement. 
Commenters also suggested that the agencies potentially include as 
eligible guarantors other entities, such as financial guaranty and 
private mortgage insurers. The FDIC believes that guarantees issued by 
these types of entities can exhibit significant wrong-way risk and 
modifying the definition of eligible guarantor to accommodate these 
entities or entities that are not investment grade would be contrary to 
one of the key objectives of the capital framework, which is to 
mitigate interconnectedness and systemic vulnerabilities within the 
financial

[[Page 55423]]

system. Therefore, the FDIC has not included the recommended entities 
in the interim final rule's definition of ``eligible guarantor.'' The 
FDIC has, however, amended the definition of eligible guarantor in the 
interim final rule to include QCCPs to accommodate use of the 
substitution approach for credit derivatives that are cleared 
transactions. The FDIC believes that QCCPs, as supervised entities 
subject to specific risk-management standards, are appropriately 
included as eligible guarantors under the interim final rule.\147\ In 
addition, the FDIC clarifies one commenter's concern and confirms that 
re-insurers that are engaged predominantly in the business of providing 
credit protection do not qualify as an eligible guarantor under the 
interim final rule.
---------------------------------------------------------------------------

    \147\ See the definition of ``eligible guarantor'' in section 2 
of the interim final rule.
---------------------------------------------------------------------------

    Under the interim final rule, guarantees and credit derivatives are 
required to meet specific eligibility requirements to be recognized for 
credit risk mitigation purposes. Consistent with the proposal, under 
the interim final rule, an eligible guarantee is defined as a guarantee 
from an eligible guarantor that is written and meets certain standards 
and conditions, including with respect to its enforceability. An 
eligible credit derivative is defined as a credit derivative in the 
form of a CDS, nth-to-default swap, total return swap, or any other 
form of credit derivative approved by the FDIC, provided that the 
instrument meets the standards and conditions set forth in the 
definition. See the definitions of ``eligible guarantee'' and 
``eligible credit derivative'' in section 324.2 of the interim final 
rule.
    Under the proposal, a banking organization would have been 
permitted to recognize the credit risk mitigation benefits of an 
eligible credit derivative that hedges an exposure that is different 
from the credit derivative's reference exposure used for determining 
the derivative's cash settlement value, deliverable obligation, or 
occurrence of a credit event if (1) the reference exposure ranks pari 
passu with or is subordinated to the hedged exposure; (2) the reference 
exposure and the hedged exposure are to the same legal entity; and (3) 
legally-enforceable cross-default or cross-acceleration clauses are in 
place to assure payments under the credit derivative are triggered when 
the issuer fails to pay under the terms of the hedged exposure.
    In addition to these two exceptions, one commenter encouraged the 
agencies to revise the interim final rule to recognize a proxy hedge as 
an eligible credit derivative even though such a transaction hedges an 
exposure that differs from the credit derivative's reference exposure. 
A proxy hedge was characterized by the commenter as a hedge of an 
exposure supported by a sovereign using a credit derivative on that 
sovereign. The FDIC does not believe there is sufficient justification 
to include proxy hedges in the definition of eligible credit derivative 
because it has concerns regarding the ability of the hedge to 
sufficiently mitigate the risk of the underlying exposure. The FDIC 
has, therefore, adopted the definition of eligible credit derivative as 
proposed.
    In addition, under the interim final rule, consistent with the 
proposal, when an FDIC-supervised institution has a group of hedged 
exposures with different residual maturities that are covered by a 
single eligible guarantee or eligible credit derivative, it must treat 
each hedged exposure as if it were fully covered by a separate eligible 
guarantee or eligible credit derivative.
b. Substitution Approach
    The FDIC is adopting the substitution approach for eligible 
guarantees and eligible credit derivatives in the interim final rule 
without change. Under the substitution approach, if the protection 
amount (as defined below) of an eligible guarantee or eligible credit 
derivative is greater than or equal to the exposure amount of the 
hedged exposure, an FDIC-supervised institution substitutes the risk 
weight applicable to the guarantor or credit derivative protection 
provider for the risk weight applicable to the hedged exposure.
    If the protection amount of the eligible guarantee or eligible 
credit derivative is less than the exposure amount of the hedged 
exposure, an FDIC-supervised institution must treat the hedged exposure 
as two separate exposures (protected and unprotected) to recognize the 
credit risk mitigation benefit of the guarantee or credit derivative. 
In such cases, an FDIC-supervised institution calculates the risk-
weighted asset amount for the protected exposure under section 36 of 
the interim final rule (using a risk weight applicable to the guarantor 
or credit derivative protection provider and an exposure amount equal 
to the protection amount of the guarantee or credit derivative). The 
FDIC-supervised institution calculates its risk-weighted asset amount 
for the unprotected exposure under section 32 of the interim final rule 
(using the risk weight assigned to the exposure and an exposure amount 
equal to the exposure amount of the original hedged exposure minus the 
protection amount of the guarantee or credit derivative).
    Under the interim final rule, the protection amount of an eligible 
guarantee or eligible credit derivative means the effective notional 
amount of the guarantee or credit derivative reduced to reflect any, 
maturity mismatch, lack of restructuring coverage, or currency mismatch 
as described below. The effective notional amount for an eligible 
guarantee or eligible credit derivative is the lesser of the 
contractual notional amount of the credit risk mitigant and the 
exposure amount of the hedged exposure, multiplied by the percentage 
coverage of the credit risk mitigant. For example, the effective 
notional amount of a guarantee that covers, on a pro rata basis, 40 
percent of any losses on a $100 bond is $40.
c. Maturity Mismatch Haircut
    The FDIC is adopting the proposed haircut for maturity mismatch in 
the interim final rule without change. Under the interim final rule, 
the FDIC has adopted the requirement that an FDIC-supervised 
institution that recognizes an eligible guarantee or eligible credit 
derivative must adjust the effective notional amount of the credit risk 
mitigant to reflect any maturity mismatch between the hedged exposure 
and the credit risk mitigant. A maturity mismatch occurs when the 
residual maturity of a credit risk mitigant is less than that of the 
hedged exposure(s).\148\
---------------------------------------------------------------------------

    \148\ As noted above, when an FDIC-supervised institution has a 
group of hedged exposures with different residual maturities that 
are covered by a single eligible guarantee or eligible credit 
derivative, an FDIC-supervised institution treats each hedged 
exposure as if it were fully covered by a separate eligible 
guarantee or eligible credit derivative. To determine whether any of 
the hedged exposures has a maturity mismatch with the eligible 
guarantee or credit derivative, the FDIC-supervised institution 
assesses whether the residual maturity of the eligible guarantee or 
eligible credit derivative is less than that of the hedged exposure.
---------------------------------------------------------------------------

    The residual maturity of a hedged exposure is the longest possible 
remaining time before the obligated party of the hedged exposure is 
scheduled to fulfil its obligation on the hedged exposure. An FDIC-
supervised institution is required to take into account any embedded 
options that may reduce the term of the credit risk mitigant so that 
the shortest possible residual maturity for the credit risk mitigant is 
used to determine the potential maturity mismatch. If a call is at the 
discretion of the protection provider, the residual maturity of the 
credit risk mitigant is at the first call date. If the call is at the 
discretion of the

[[Page 55424]]

FDIC-supervised institution purchasing the protection, but the terms of 
the arrangement at origination of the credit risk mitigant contain a 
positive incentive for the FDIC-supervised institution to call the 
transaction before contractual maturity, the remaining time to the 
first call date is the residual maturity of the credit risk mitigant. 
An FDIC-supervised institution is permitted, under the interim final 
rule, to recognize a credit risk mitigant with a maturity mismatch only 
if its original maturity is greater than or equal to one year and the 
residual maturity is greater than three months.
    Assuming that the credit risk mitigant may be recognized, an FDIC-
supervised institution is required to apply the following adjustment to 
reduce the effective notional amount of the credit risk mitigant to 
recognize the maturity mismatch: Pm = E x [(t-0.25)/(T-0.25)], where:
    (1) Pm equals effective notional amount of the credit risk 
mitigant, adjusted for maturity mismatch;
    (2) E equals effective notional amount of the credit risk mitigant;
    (3) t equals the lesser of T or residual maturity of the credit 
risk mitigant, expressed in years; and
    (4) T equals the lesser of five or the residual maturity of the 
hedged exposure, expressed in years.
d. Adjustment for Credit Derivatives Without Restructuring as a Credit 
Event
    The FDIC is adopting in the interim final rule the proposed 
adjustment for credit derivatives without restructuring as a credit 
event. Consistent with the proposal, under the interim final rule, an 
FDIC-supervised institution that seeks to recognize an eligible credit 
derivative that does not include a restructuring of the hedged exposure 
as a credit event under the derivative must reduce the effective 
notional amount of the credit derivative recognized for credit risk 
mitigation purposes by 40 percent. For purposes of the credit risk 
mitigation framework, a restructuring may involve forgiveness or 
postponement of principal, interest, or fees that result in a credit 
loss event (that is, a charge-off, specific provision, or other similar 
debit to the profit and loss account). In these instances, the FDIC-
supervised institution is required to apply the following adjustment to 
reduce the effective notional amount of the credit derivative: Pr 
equals Pm x 0.60, where:
    (1) Pr equals effective notional amount of the credit risk 
mitigant, adjusted for lack of a restructuring event (and maturity 
mismatch, if applicable); and
    (2) Pm equals effective notional amount of the credit risk mitigant 
(adjusted for maturity mismatch, if applicable).
e. Currency Mismatch Adjustment
    Consistent with the proposal, under the interim final rule, if an 
FDIC-supervised institution recognizes an eligible guarantee or 
eligible credit derivative that is denominated in a currency different 
from that in which the hedged exposure is denominated, the FDIC-
supervised institution must apply the following formula to the 
effective notional amount of the guarantee or credit derivative: 
PC equals Pr x (1-HFX), where:
    (1) PC equals effective notional amount of the credit 
risk mitigant, adjusted for currency mismatch (and maturity mismatch 
and lack of restructuring event, if applicable);
    (2) Pr equals effective notional amount of the credit risk mitigant 
(adjusted for maturity mismatch and lack of restructuring event, if 
applicable); and
    (3) HFX equals haircut appropriate for the currency 
mismatch between the credit risk mitigant and the hedged exposure.
    An FDIC-supervised institution is required to use a standard 
supervisory haircut of 8 percent for HFX (based on a ten-
business-day holding period and daily marking-to-market and 
remargining). Alternatively, an FDIC-supervised institution has the 
option to use internally estimated haircuts of HFX based on 
a ten-business-day holding period and daily marking-to-market if the 
FDIC-supervised institution qualifies to use the own-estimates of 
haircuts in section 324.37(c)(4) of the interim final rule. In either 
case, the FDIC-supervised institution is required to scale the haircuts 
up using the square root of time formula if the FDIC-supervised 
institution revalues the guarantee or credit derivative less frequently 
than once every 10 business days. The applicable haircut 
(HM) is calculated using the following square root of time 
formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.003

where TM equals the greater of 10 or the number of days 
between revaluation.
f. Multiple Credit Risk Mitigants
    Consistent with the proposal, under the interim final rule, if 
multiple credit risk mitigants cover a single exposure, an FDIC-
supervised institution may disaggregate the exposure into portions 
covered by each credit risk mitigant (for example, the portion covered 
by each guarantee) and calculate separately a risk-based capital 
requirement for each portion, consistent with the Basel capital 
framework. In addition, when a single credit risk mitigant covers 
multiple exposures, an FDIC-supervised institution must treat each 
hedged exposure as covered by a single credit risk mitigant and must 
calculate separate risk-weighted asset amounts for each exposure using 
the substitution approach described in section 324.36(c) of the interim 
final rule.
2. Collateralized Transactions
a. Eligible Collateral
    Under the proposal, the agencies would recognize an expanded range 
of financial collateral as credit risk mitigants that may reduce the 
risk-based capital requirements associated with a collateralized 
transaction, consistent with the Basel capital framework. The agencies 
proposed that a banking organization could recognize the risk-
mitigating effects of financial collateral using the ``simple 
approach'' for any exposure provided that the collateral meets certain 
requirements. For repo-style transactions, eligible margin loans, 
collateralized derivative contracts, and single-product netting sets of 
such transactions, a banking organization could alternatively use the 
collateral haircut approach. The proposal required a banking 
organization to use the same approach for similar exposures or 
transactions.
    The commenters generally agreed with this aspect of the proposal; 
however, a few commenters encouraged the agencies to expand the 
definition of financial collateral to include precious metals and 
certain residential mortgages that collateralize warehouse lines of 
credit. Several commenters asserted that the interim final rule should 
recognize as financial collateral conforming residential mortgages (or 
at least those collateralizing warehouse lines of credit) and/or those 
insured by the FHA or VA. They noted that by not including conforming 
residential mortgages in the definition of financial collateral, the 
proposed rule would require banking organizations providing warehouse 
lines to treat warehouse facilities as commercial loan exposures, thus 
preventing such entities from looking through to the underlying 
collateral in calculating the appropriate risk weighting. Others argued 
that a ``look through'' approach for a repo-style structure to the 
financial collateral held therein should be allowed. Another commenter 
argued that the interim final

[[Page 55425]]

rule should allow recognition of intangible assets as financial 
collateral because they have real value. The FDIC believes that the 
collateral types suggested by the commenters are not appropriate forms 
of financial collateral because they exhibit increased variation and 
credit risk, and are relatively more speculative than the recognized 
forms of financial collateral under the proposal. For example, 
residential mortgages can be highly idiosyncratic in regards to payment 
features, interest rate provisions, lien seniority, and maturities. The 
FDIC believes that the proposed definition of financial collateral, 
which is broader than the collateral recognized under the general risk-
based capital rules, included those collateral types of sufficient 
liquidity and asset quality to recognize as credit risk mitigants for 
risk-based capital purposes. As a result, the FDIC has retained the 
definition of financial collateral as proposed. Therefore, consistent 
with the proposal, the interim final rule defines financial collateral 
as collateral in the form of: (1) Cash on deposit with the FDIC-
supervised institution (including cash held for the FDIC-supervised 
institution by a third-party custodian or trustee); (2) gold bullion; 
(3) short- and long-term debt securities that are not resecuritization 
exposures and that are investment grade; (4) equity securities that are 
publicly-traded; (5) convertible bonds that are publicly-traded; or (6) 
money market fund shares and other mutual fund shares if a price for 
the shares is publicly quoted daily. With the exception of cash on 
deposit, the FDIC-supervised institution is also required to have a 
perfected, first-priority security interest or, outside of the United 
States, the legal equivalent thereof, notwithstanding the prior 
security interest of any custodial agent. Even if an FDIC-supervised 
institution has the legal right, it still must ensure it monitors or 
has a freeze on the account to prevent a customer from withdrawing cash 
on deposit prior to defaulting. An FDIC-supervised institution is 
permitted to recognize partial collateralization of an exposure.
    Under the interim final rule, the FDIC requires that an FDIC-
supervised institution to recognize the risk-mitigating effects of 
financial collateral using the simple approach described below, where: 
the collateral is subject to a collateral agreement for at least the 
life of the exposure; the collateral is revalued at least every six 
months; and the collateral (other than gold) and the exposure is 
denominated in the same currency. For repo-style transactions, eligible 
margin loans, collateralized derivative contracts, and single-product 
netting sets of such transactions, an FDIC-supervised institution could 
alternatively use the collateral haircut approach described below. The 
interim final rule, like the proposal, requires an FDIC-supervised 
institution to use the same approach for similar exposures or 
transactions.
b. Risk-Management Guidance for Recognizing Collateral
    Before an FDIC-supervised institution recognizes collateral for 
credit risk mitigation purposes, it should: (1) Conduct sufficient 
legal review to ensure, at the inception of the collateralized 
transaction and on an ongoing basis, that all documentation used in the 
transaction is binding on all parties and legally enforceable in all 
relevant jurisdictions; (2) consider the correlation between risk of 
the underlying direct exposure and collateral in the transaction; and 
(3) fully take into account the time and cost needed to realize the 
liquidation proceeds and the potential for a decline in collateral 
value over this time period.
    An FDIC-supervised institution also should ensure that the legal 
mechanism under which the collateral is pledged or transferred ensures 
that the FDIC-supervised institution has the right to liquidate or take 
legal possession of the collateral in a timely manner in the event of 
the default, insolvency, or bankruptcy (or other defined credit event) 
of the counterparty and, where applicable, the custodian holding the 
collateral.
    In addition, an FDIC-supervised institution should ensure that it 
(1) has taken all steps necessary to fulfill any legal requirements to 
secure its interest in the collateral so that it has and maintains an 
enforceable security interest; (2) has set up clear and robust 
procedures to ensure satisfaction of any legal conditions required for 
declaring the default of the borrower and prompt liquidation of the 
collateral in the event of default; (3) has established procedures and 
practices for conservatively estimating, on a regular ongoing basis, 
the fair value of the collateral, taking into account factors that 
could affect that value (for example, the liquidity of the market for 
the collateral and obsolescence or deterioration of the collateral); 
and (4) has in place systems for promptly requesting and receiving 
additional collateral for transactions whose terms require maintenance 
of collateral values at specified thresholds.
c. Simple Approach
    The FDIC is adopting the simple approach without change for 
purposes of the interim final rule. Under the interim final rule, the 
collateralized portion of the exposure receives the risk weight 
applicable to the collateral. The collateral is required to meet the 
definition of financial collateral. For repurchase agreements, reverse 
repurchase agreements, and securities lending and borrowing 
transactions, the collateral would be the instruments, gold, and cash 
that an FDIC-supervised institution has borrowed, purchased subject to 
resale, or taken as collateral from the counterparty under the 
transaction. As noted above, in all cases, (1) the collateral must be 
subject to a collateral agreement for at least the life of the 
exposure; (2) the FDIC-supervised institution must revalue the 
collateral at least every six months; and (3) the collateral (other 
than gold) and the exposure must be denominated in the same currency.
    Generally, the risk weight assigned to the collateralized portion 
of the exposure must be no less than 20 percent. However, the 
collateralized portion of an exposure may be assigned a risk weight of 
less than 20 percent for the following exposures. OTC derivative 
contracts that are marked to fair value on a daily basis and subject to 
a daily margin maintenance agreement, may receive (1) a zero percent 
risk weight to the extent that contracts are collateralized by cash on 
deposit, or (2) a 10 percent risk weight to the extent that the 
contracts are collateralized by an exposure to a sovereign that 
qualifies for a zero percent risk weight under section 32 of the 
interim final rule. In addition, an FDIC-supervised institution may 
assign a zero percent risk weight to the collateralized portion of an 
exposure where the financial collateral is cash on deposit; or the 
financial collateral is an exposure to a sovereign that qualifies for a 
zero percent risk weight under section 32 of the interim final rule, 
and the FDIC-supervised institution has discounted the fair value of 
the collateral by 20 percent.
d. Collateral Haircut Approach
    Consistent with the proposal, in the interim final rule, an FDIC-
supervised institution may use the collateral haircut approach to 
recognize the credit risk mitigation benefits of financial collateral 
that secures an eligible margin loan, repo-style transaction, 
collateralized derivative contract, or single-product netting set of 
such transactions. In addition, the FDIC-supervised institution may use 
the

[[Page 55426]]

collateral haircut approach with respect to any collateral that secures 
a repo-style transaction that is included in the FDIC-supervised 
institution's VaR-based measure under subpart F of the interim final 
rule, even if the collateral does not meet the definition of financial 
collateral.
    To apply the collateral haircut approach, an FDIC-supervised 
institution must determine the exposure amount and the relevant risk 
weight for the counterparty or guarantor.
    The exposure amount for an eligible margin loan, repo-style 
transaction, collateralized derivative contract, or a netting set of 
such transactions is equal to the greater of zero and the sum of the 
following three quantities:
    (1) The value of the exposure less the value of the collateral. For 
eligible margin loans, repo-style transactions and netting sets 
thereof, the value of the exposure is the sum of the current market 
values of all instruments, gold, and cash the FDIC-supervised 
institution has lent, sold subject to repurchase, or posted as 
collateral to the counterparty under the transaction or netting set. 
For collateralized OTC derivative contracts and netting sets thereof, 
the value of the exposure is the exposure amount that is calculated 
under section 34 of the interim final rule. The value of the collateral 
equals the sum of the current market values of all instruments, gold 
and cash the FDIC-supervised institution has borrowed, purchased 
subject to resale, or taken as collateral from the counterparty under 
the transaction or netting set;
    (2) The absolute value of the net position in a given instrument or 
in gold (where the net position in a given instrument or in gold equals 
the sum of the current market values of the instrument or gold the 
FDIC-supervised institution has lent, sold subject to repurchase, or 
posted as collateral to the counterparty minus the sum of the current 
market values of that same instrument or gold that the FDIC-supervised 
institution has borrowed, purchased subject to resale, or taken as 
collateral from the counterparty) multiplied by the market price 
volatility haircut appropriate to the instrument or gold; and
    (3) The absolute value of the net position of instruments and cash 
in a currency that is different from the settlement currency (where the 
net position in a given currency equals the sum of the current market 
values of any instruments or cash in the currency the FDIC-supervised 
institution has lent, sold subject to repurchase, or posted as 
collateral to the counterparty minus the sum of the current market 
values of any instruments or cash in the currency the FDIC-supervised 
institution has borrowed, purchased subject to resale, or taken as 
collateral from the counterparty) multiplied by the haircut appropriate 
to the currency mismatch.
    For purposes of the collateral haircut approach, a given instrument 
includes, for example, all securities with a single Committee on 
Uniform Securities Identification Procedures (CUSIP) number and would 
not include securities with different CUSIP numbers, even if issued by 
the same issuer with the same maturity date.
e. Standard Supervisory Haircuts
    When determining the exposure amount, the FDIC-supervised 
institution must apply a haircut for price market volatility and 
foreign exchange rates, determined either using standard supervisory 
market price volatility haircuts and a standard haircut for exchange 
rates or, with prior approval of the agency, an FDIC-supervised 
institution's own estimates of volatilities of market prices and 
foreign exchange rates.
    The standard supervisory market price volatility haircuts set a 
specified market price volatility haircut for various categories of 
financial collateral. These standard haircuts are based on the ten-
business-day holding period for eligible margin loans and derivative 
contracts. For repo-style transactions, an FDIC-supervised institution 
may multiply the standard supervisory haircuts by the square root of 
\1/2\ to scale them for a holding period of five business days. Several 
commenters argued that the proposed haircuts were too conservative and 
insufficiently risk-sensitive, and that FDIC-supervised institutions 
should be allowed to compute their own haircuts. Some commenters 
proposed limiting the maximum haircut for non-sovereign issuers that 
receive a 100 percent risk weight to 12 percent and, more specifically, 
assigning a lower haircut than 25 percent for financial collateral in 
the form of an investment-grade corporate debt security that has a 
shorter residual maturity. The commenters asserted that these haircuts 
conservatively correspond to the existing rating categories and result 
in greater alignment with the Basel framework.
    In the interim final rule, the FDIC has revised from 25.0 percent 
the standard supervisory market price volatility haircuts for financial 
collateral issued by non-sovereign issuers with a risk weight of 100 
percent to 4.0 percent for maturities of less than one year, 8.0 
percent for maturities greater than one year but less than or equal to 
five years, and 16.0 percent for maturities greater than five years, 
consistent with Table 22 below. The FDIC believes that the revised 
haircuts better reflect the collateral's credit quality and an 
appropriate differentiation based on the collateral's residual 
maturity.
    An FDIC-supervised institution using the standard currency mismatch 
haircut is required to use an 8 percent haircut for each currency 
mismatch for transactions subject to a 10 day holding period, as 
adjusted for different required holding periods. One commenter asserted 
that the proposed adjustment for currency mismatch was unwarranted 
because in securities lending transactions, the parties typically 
require a higher collateral margin than in transactions where there is 
no mismatch. In the alternative, the commenter argued that the agencies 
should align the currency mismatch haircut more closely with a given 
currency combination and suggested those currencies of countries with a 
more favorable CRC from the OECD should receive a smaller haircut. The 
FDIC has decided to adopt this aspect of the proposal without change in 
the interim final rule. The FDIC believes that the own internal 
estimates for haircuts methodology described below allows FDIC-
supervised institutions appropriate flexibility to more granularly 
reflect individual currency combinations, provided they meet certain 
criteria.

[[Page 55427]]



                                           Table 22--Standard Supervisory Market Price Volatility Haircuts \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Haircut (in percent) assigned based on:
                                                              ------------------------------------------------------------------------  Investment-grade
                                                                  Sovereign issuers risk weight     Non-sovereign issuers risk weight    securitization
                      Residual maturity                              under Sec.   324.32 \2\               under Sec.   324.32           exposures  (in
                                                              ------------------------------------------------------------------------      percent)
                                                                  Zero      20 or 50       100         20          50          100
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than or equal to 1 year.................................         0.5         1.0        15.0         1.0         2.0         4.0                4.0
Greater than 1 year and less than or equal to 5 years........         2.0         3.0        15.0         4.0         6.0         8.0               12.0
Greater than 5 years.........................................         4.0         6.0        15.0         8.0        12.0        16.0               24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Main index equities (including convertible bonds) and gold..........................15.0.........
Other publicly-traded equities (including convertible bonds)........................25.0.........
Mutual funds....................................................Highest haircut applicable to any security in
                                                                          which the fund can invest
Cash collateral held................................................................Zero.........
Other exposure types................................................................25.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The market price volatility haircuts in Table 22 are based on a 10 business-day holding period.
\2\ Includes a foreign PSE that receives a zero percent risk weight.

    The interim final rule requires that an FDIC-supervised institution 
increase the standard supervisory haircut for transactions involving 
large netting sets. As noted in the proposed rule, during the recent 
financial crisis, many financial institutions experienced significant 
delays in settling or closing-out collateralized transactions, such as 
repo-style transactions and collateralized OTC derivatives. The assumed 
holding period for collateral in the collateral haircut approach under 
Basel II proved to be inadequate for certain transactions and netting 
sets and did not reflect the difficulties and delays that institutions 
had when settling or liquidating collateral during a period of 
financial stress.
    Thus, consistent with the proposed rule, for netting sets where: 
(1) the number of trades exceeds 5,000 at any time during the quarter; 
(2) one or more trades involves illiquid collateral posted by the 
counterparty; or (3) the netting set includes any OTC derivatives that 
cannot be easily replaced, the interim final rule requires an FDIC-
supervised institution to assume a holding period of 20 business days 
for the collateral under the collateral haircut approach. The formula 
and methodology for increasing the haircut to reflect the longer 
holding period is described in section 37(c) of the interim final rule. 
Consistent with the Basel capital framework, an FDIC-supervised 
institution is not required to adjust the holding period upward for 
cleared transactions. When determining whether collateral is illiquid 
or whether an OTC derivative cannot be easily replaced for these 
purposes, an FDIC-supervised institution should assess whether, during 
a period of stressed market conditions, it could obtain multiple price 
quotes within two days or less for the collateral or OTC derivative 
that would not move the market or represent a market discount (in the 
case of collateral) or a premium (in the case of an OTC derivative).
    One commenter requested the agencies clarify whether the 5,000-
trade threshold applies on a counterparty-by-counterparty (rather than 
aggregate) basis, and only will be triggered in the event there are 
5,000 open trades with a single counterparty within a single netting 
set in a given quarter. Commenters also asked whether the threshold 
would be calculated on an average basis or whether a de minimis number 
of breaches could be permitted without triggering the increased holding 
period or margin period of risk. One commenter suggested eliminating 
the threshold because it is ineffective as a measure of risk, and 
combined with other features of the proposals (for example, collateral 
haircuts, margin disputes), could create a disincentive for FDIC-
supervised institutions to apply sound practices such as risk 
diversification.
    The FDIC notes that the 5,000-trade threshold applies to a netting 
set, which by definition means a group of transactions with a single 
counterparty that are subject to a qualifying master netting agreement. 
The 5,000 trade calculation threshold was proposed as an indicator that 
a set of transactions may be more complex, or require a lengthy period, 
to close out in the event of a default of a counterparty. The FDIC 
continues to believe that the threshold of 5,000 is a reasonable 
indicator of the complexity of a close-out. Therefore, the interim 
final rule retains the 5,000 trade threshold as proposed, without any 
de minimis exception.
    One commenter asked the agencies to clarify how trades would be 
counted in the context of an indemnified agency securities lending 
relationship. In such transactions, an agent banking organization acts 
as an intermediary for, potentially, multiple borrowers and lenders. 
The banking organization is acting as an agent with no exposure to 
either the securities lenders or borrowers except for an 
indemnification to the securities lenders in the event of a borrower 
default. The indemnification creates an exposure to the securities 
borrower, as the agent banking organization could suffer a loss upon 
the default of a borrower. In these cases, each transaction between the 
agent and a borrower would count as a trade. The FDIC notes that a 
trade in this instance consists of an order by the borrower, and not 
the number of securities lenders providing shares to fulfil the order 
or the number of shares underlying such order.\149\
---------------------------------------------------------------------------

    \149\ In the event that the agent FDIC-supervised institution 
reinvests the cash collateral proceeds on behalf of the lender and 
provides an explicit or implicit guarantee of the value of the 
collateral in such pool, the FDIC-supervised institution should hold 
capital, as appropriate, against the risk of loss of value of the 
collateral pool.
---------------------------------------------------------------------------

    The commenters also addressed the longer holding period for trades 
involving illiquid collateral posted by the counterparty. Some 
commenters asserted that one illiquid exposure or one illiquid piece of 
collateral should not taint the entire netting set. Other commenters 
recommended applying a materiality threshold (for example, 1 percent) 
below which one or more illiquid exposures would not trigger the longer 
holding period, or allowing banking organizations to define 
``materiality'' based on experience.
    Regarding the potential for an illiquid exposure to ``taint'' an 
entire netting set, the interim final rule does not require

[[Page 55428]]

an FDIC-supervised institution to recognize any piece of collateral as 
a risk mitigant. Accordingly, if an FDIC-supervised institution elects 
to exclude the illiquid collateral from the netting set for purposes of 
calculating risk-weighted assets, then such illiquid collateral does 
not result in an increased holding period for the netting set. With 
respect to a derivative that may not be easily replaced, an FDIC-
supervised institution could create a separate netting set that would 
preserve the holding period for the original netting set of easily 
replaced transactions. Accordingly, the interim final rule adopts this 
aspect of the proposal without change.
    One commenter asserted that the interim final rule should not 
require a banking organization to determine whether an instrument is 
liquid on a daily basis, but rather should base the timing of such 
determination by product category and on long-term liquidity data. 
According to the commenter, such an approach would avoid potential 
confusion, volatility and destabilization of the funding markets. For 
purposes of determining whether collateral is illiquid or an OTC 
derivative contract is easily replaceable under the interim final rule, 
an FDIC-supervised institution may assess whether, during a period of 
stressed market conditions, it could obtain multiple price quotes 
within two days or less for the collateral or OTC derivative that would 
not move the market or represent a market discount (in the case of 
collateral) or a premium (in the case of an OTC derivative). An FDIC-
supervised institution is not required to make a daily determination of 
liquidity under the interim final rule; rather, FDIC-supervised 
institutions should have policies and procedures in place to evaluate 
the liquidity of their collateral as frequently as warranted.
    Under the proposed rule, a banking organization would increase the 
holding period for a netting set if over the two previous quarters more 
than two margin disputes on a netting set have occurred that lasted 
longer than the holding period. However, consistent with the Basel 
capital framework, a banking organization would not be required to 
adjust the holding period upward for cleared transactions. Several 
commenters requested further clarification on the meaning of ``margin 
disputes.'' Some of these commenters suggested restricting ``margin 
disputes'' to formal legal action. Commenters also suggested 
restricting ``margin disputes'' to disputes resulting in the creation 
of an exposure that exceeded any available overcollateralization, or 
establishing a materiality threshold. One commenter suggested that 
margin disputes were not an indicator of an increased risk and, 
therefore, should not trigger a longer holding period.
    The FDIC continues to believe that an increased holding period is 
appropriate regardless of whether the dispute exceeds applicable 
collateral requirements and regardless of whether the disputes exceed a 
materiality threshold. The FDIC expects that the determination as to 
whether a dispute constitutes a margin dispute for purposes of the 
interim final rule will depend solely on the timing of the resolution. 
That is to say, if collateral is not delivered within the time period 
required under an agreement, and such failure to deliver is not 
resolved in a timely manner, then such failure would count toward the 
two-margin-dispute limit. For the purpose of the interim final rule, 
where a dispute is subject to a recognized industry dispute resolution 
protocol, the FDIC expects to consider the dispute period to begin 
after a third-party dispute resolution mechanism has failed.
    For comments and concerns that are specific to the parallel 
provisions in the advanced approaches rule, reference section XII.A of 
this preamble.
    f. Own Estimates of Haircuts
    Under the interim final rule, consistent with the proposal, FDIC-
supervised institutions may calculate market price volatility and 
foreign exchange volatility using own internal estimates with prior 
written approval of the FDIC. To receive approval to calculate haircuts 
using its own internal estimates, an FDIC-supervised institution must 
meet certain minimum qualitative and quantitative standards set forth 
in the interim final rule, including the requirements that an FDIC-
supervised institution: (1) uses a 99th percentile one-tailed 
confidence interval and a minimum five-business-day holding period for 
repo-style transactions and a minimum ten-business-day holding period 
for all other transactions; (2) adjusts holding periods upward where 
and as appropriate to take into account the illiquidity of an 
instrument; (3) selects a historical observation period that reflects a 
continuous 12-month period of significant financial stress appropriate 
to the FDIC-supervised institution's current portfolio; and (4) updates 
its data sets and compute haircuts no less frequently than quarterly, 
as well as any time market prices change materially. An FDIC-supervised 
institution estimates the volatilities of exposures, the collateral, 
and foreign exchange rates and should not take into account the 
correlations between them.
    The interim final rule provides a formula for converting own-
estimates of haircuts based on a holding period different from the 
minimum holding period under the rule to haircuts consistent with the 
rule's minimum holding periods. The minimum holding periods for netting 
sets with more than 5,000 trades, netting sets involving illiquid 
collateral or an OTC derivative that cannot easily be replaced, and 
netting sets involving more than two margin disputes over the previous 
two quarters described above also apply for own-estimates of haircuts.
    Under the interim final rule, an FDIC-supervised institution is 
required to have policies and procedures that describe how it 
determines the period of significant financial stress used to calculate 
the FDIC-supervised institution's own internal estimates, and to be 
able to provide empirical support for the period used. These policies 
and procedures must address (1) how the FDIC-supervised institution 
links the period of significant financial stress used to calculate the 
own internal estimates to the composition and directional bias of the 
FDIC-supervised institution's current portfolio; and (2) the FDIC-
supervised institution's process for selecting, reviewing, and updating 
the period of significant financial stress used to calculate the own 
internal estimates and for monitoring the appropriateness of the 12-
month period in light of the FDIC-supervised institution's current 
portfolio. The FDIC-supervised institution is required to obtain the 
prior approval of the FDIC for these policies and procedures and notify 
the FDIC if it makes any material changes to them. The FDIC may require 
it to use a different period of significant financial stress in the 
calculation of its own internal estimates.
    Under the interim final rule, an FDIC-supervised institution is 
allowed to calculate internally estimated haircuts for categories of 
debt securities that are investment-grade exposures. The haircut for a 
category of securities must be representative of the internal 
volatility estimates for securities in that category that the FDIC-
supervised institution has lent, sold subject to repurchase, posted as 
collateral, borrowed, purchased subject to resale, or taken as 
collateral. In determining relevant categories, the FDIC-supervised 
institution must, at a minimum, take into account (1) the type of 
issuer of the security; (2) the credit quality of the security; (3) the 
maturity of the security;

[[Page 55429]]

and (4) the interest rate sensitivity of the security.
    An FDIC-supervised institution must calculate a separate internally 
estimated haircut for each individual non-investment-grade debt 
security and for each individual equity security. In addition, an FDIC-
supervised institution must estimate a separate currency mismatch 
haircut for its net position in each mismatched currency based on 
estimated volatilities for foreign exchange rates between the 
mismatched currency and the settlement currency where an exposure or 
collateral (whether in the form of cash or securities) is denominated 
in a currency that differs from the settlement currency.
g. Simple Value-at-Risk and Internal Models Methodology
    In the NPR, the agencies did not propose a simple VaR approach to 
calculate exposure amounts for eligible margin loans and repo-style 
transactions or IMM to calculate the exposure amount for the 
counterparty credit exposure for OTC derivatives, eligible margin 
loans, and repo-style transactions. These methodologies are included in 
the advanced approaches rule. The agencies sought comment on whether to 
implement the simple VaR approach and IMM in the standardized approach. 
Several commenters asserted that the IMM and simple VaR approach should 
be implemented in the interim final rule to better capture the risk of 
counterparty credit exposures. The FDIC has considered these comments 
and has concluded that the increased complexity and limited 
applicability of these models-based approaches is inconsistent with the 
FDIC's overall focus in the standardized approach on simplicity, 
comparability, and broad applicability of methodologies for U.S. FDIC-
supervised institutions. Therefore, consistent with the proposal, the 
interim final rule does not include the simple VaR approach or the IMM 
in the standardized approach.

G. Unsettled Transactions

    Under the proposed rule, a banking organization would be required 
to hold capital against the risk of certain unsettled transactions. One 
commenter expressed opposition to assigning a risk weight to unsettled 
transactions where previously none existed, because it would require a 
significant and burdensome tracking process without commensurate 
benefit. The FDIC believes that it is important for an FDIC-supervised 
institution to have procedures to identify and track a delayed or 
unsettled transaction of the types specified in the rule. Such 
procedures capture the resulting risks associated with such delay. As a 
result, the FDIC is adopting the risk-weighting requirements as 
proposed.
    Consistent with the proposal, the interim final rule provides for a 
separate risk-based capital requirement for transactions involving 
securities, foreign exchange instruments, and commodities that have a 
risk of delayed settlement or delivery. Under the interim final rule, 
the capital requirement does not, however, apply to certain types of 
transactions, including: (1) cleared transactions that are marked-to-
market daily and subject to daily receipt and payment of variation 
margin; (2) repo-style transactions, including unsettled repo-style 
transactions; (3) one-way cash payments on OTC derivative contracts; or 
(4) transactions with a contractual settlement period that is longer 
than the normal settlement period (which the proposal defined as the 
lesser of the market standard for the particular instrument or five 
business days).\150\ In the case of a system-wide failure of a 
settlement, clearing system, or central counterparty, the FDIC may 
waive risk-based capital requirements for unsettled and failed 
transactions until the situation is rectified.
---------------------------------------------------------------------------

    \150\ Such transactions are treated as derivative contracts as 
provided in section 34 or section 35 of the interim final rule.
---------------------------------------------------------------------------

    The interim final rule provides separate treatments for delivery-
versus-payment (DvP) and payment-versus-payment (PvP) transactions with 
a normal settlement period, and non-DvP/non-PvP transactions with a 
normal settlement period. A DvP transaction refers to a securities or 
commodities transaction in which the buyer is obligated to make payment 
only if the seller has made delivery of the securities or commodities 
and the seller is obligated to deliver the securities or commodities 
only if the buyer has made payment. A PvP transaction means a foreign 
exchange transaction in which each counterparty is obligated to make a 
final transfer of one or more currencies only if the other counterparty 
has made a final transfer of one or more currencies. A transaction is 
considered to have a normal settlement period if the contractual 
settlement period for the transaction is equal to or less than the 
market standard for the instrument underlying the transaction and equal 
to or less than five business days.
    Consistent with the proposal, under the interim final rule, an 
FDIC-supervised institution is required to hold risk-based capital 
against a DvP or PvP transaction with a normal settlement period if the 
FDIC-supervised institution's counterparty has not made delivery or 
payment within five business days after the settlement date. The FDIC-
supervised institution determines its risk-weighted asset amount for 
such a transaction by multiplying the positive current exposure of the 
transaction for the FDIC-supervised institution by the appropriate risk 
weight in Table 23. The positive current exposure from an unsettled 
transaction of an FDIC-supervised institution is the difference between 
the transaction value at the agreed settlement price and the current 
market price of the transaction, if the difference results in a credit 
exposure of the FDIC-supervised institution to the counterparty.

      Table 23--Risk Weights for Unsettled DvP and PvP Transactions
------------------------------------------------------------------------
                                                       Risk weight to be
                                                           applied to
 Number of business days after contractual settlement   positive current
                         date                            exposure  (in
                                                            percent)
------------------------------------------------------------------------
From 5 to 15.........................................              100.0
From 16 to 30........................................              625.0
From 31 to 45........................................              937.5
46 or more...........................................            1,250.0
------------------------------------------------------------------------

    An FDIC-supervised institution must hold risk-based capital against 
any non-DvP/non-PvP transaction with a normal settlement period if the 
FDIC-supervised institution delivered cash, securities, commodities, or 
currencies to its counterparty but has not received its corresponding 
deliverables by the end of the same business day. The FDIC-supervised 
institution must continue to hold risk-based capital against the 
transaction until it has received the corresponding deliverables. From 
the business day after the FDIC-supervised institution has made its 
delivery until five business days after the counterparty delivery is 
due, the FDIC-supervised institution must calculate the risk-weighted 
asset amount for the transaction by risk weighting the current fair 
value of the deliverables owed to the FDIC-supervised institution, 
using the risk weight appropriate for an exposure to the counterparty 
in accordance with section 32. If an FDIC-supervised institution has 
not received its deliverables by the fifth business day after the 
counterparty delivery due date, the FDIC-supervised institution must 
assign a 1,250 percent risk weight to the current market value of the 
deliverables owed.

[[Page 55430]]

H. Risk-Weighted Assets for Securitization Exposures

    In the proposal, the agencies proposed to significantly revise the 
risk-based capital framework for securitization exposures. These 
proposed revisions included removing references to and reliance on 
credit ratings to determine risk weights for these exposures and using 
alternative standards of creditworthiness, as required by section 939A 
of the Dodd-Frank Act. These alternative standards were designed to 
produce capital requirements that generally would be consistent with 
those under the BCBS securitization framework and were consistent with 
those incorporated into the agencies' market risk rule.\151\ They would 
have replaced both the ratings-based approach and an approach that 
permits banking organizations to use supervisor-approved internal 
systems to replicate external ratings processes for certain unrated 
exposures in the general risk-based capital rules.
---------------------------------------------------------------------------

    \151\ 77 FR 53060 (August 30, 2012).
---------------------------------------------------------------------------

    In addition, the agencies proposed to update the terminology for 
the securitization framework, include a definition of securitization 
exposure that encompasses a wider range of exposures with similar risk 
characteristics, and implement new due diligence requirements for 
securitization exposures.
1. Overview of the Securitization Framework and Definitions
    The proposed securitization framework was designed to address the 
credit risk of exposures that involve the tranching of credit risk of 
one or more underlying financial exposures. Consistent with the 
proposal, the interim final rule defines a securitization exposure as 
an on- or off-balance sheet credit exposure (including credit-enhancing 
representations and warranties) that arises from a traditional or 
synthetic securitization (including a resecuritization), or an exposure 
that directly or indirectly references a securitization exposure. 
Commenters expressed concerns that the proposed scope of the 
securitization framework was overly broad and requested that the 
definition of securitizations be narrowed to exposures that tranche the 
credit risk associated with a pool of assets. However, the FDIC 
believes that limiting the securitization framework to exposures backed 
by a pool of assets would exclude tranched credit risk exposures that 
are appropriately captured under the securitization framework, such as 
certain first loss or other tranched guarantees provided to a single 
underlying exposure.
    In the proposal a traditional securitization was defined, in part, 
as a transaction in which credit risk of one or more underlying 
exposures has been transferred to one or more third parties (other than 
through the use of credit derivatives or guarantees), where the credit 
risk associated with the underlying exposures has been separated into 
at least two tranches reflecting different levels of seniority. The 
definition included certain other conditions, such as requiring all or 
substantially all of the underlying exposures to be financial 
exposures. The FDIC has decided to finalize the definition of 
traditional securitization largely as proposed, with some revisions (as 
discussed below), that reflect certain comments regarding exclusions 
under the framework and other modifications to the interim final rule.
    Both the designation of exposures as securitization exposures (or 
resecuritization exposures, as described below) and the calculation of 
risk-based capital requirements for securitization exposures under the 
interim final rule are guided by the economic substance of a 
transaction rather than its legal form. Provided there is tranching of 
credit risk, securitization exposures could include, among other 
things, ABS and MBS, loans, lines of credit, liquidity facilities, 
financial standby letters of credit, credit derivatives and guarantees, 
loan servicing assets, servicer cash advance facilities, reserve 
accounts, credit-enhancing representations and warranties, and credit-
enhancing interest-only strips (CEIOs). Securitization exposures also 
include assets sold with retained tranches.
    The FDIC believes that requiring all or substantially all of the 
underlying exposures of a securitization to be financial exposures 
creates an important boundary between the general credit risk framework 
and the securitization framework. Examples of financial exposures 
include loans, commitments, credit derivatives, guarantees, 
receivables, asset-backed securities, mortgage-backed securities, other 
debt securities, or equity securities. Based on their cash flow 
characteristics, the FDIC also considers asset classes such as lease 
residuals and entertainment royalties to be financial assets. The 
securitization framework is not designed, however, to apply to tranched 
credit exposures to commercial or industrial companies or nonfinancial 
assets or to amounts deducted from capital under section 22 of the 
interim final rule. Accordingly, a specialized loan to finance the 
construction or acquisition of large-scale projects (for example, 
airports or power plants), objects (for example, ships, aircraft, or 
satellites), or commodities (for example, reserves, inventories, 
precious metals, oil, or natural gas) generally would not be a 
securitization exposure because the assets backing the loan typically 
are nonfinancial assets (the facility, object, or commodity being 
financed).
    Consistent with the proposal, under the interim final rule, an 
operating company does not fall under the definition of a traditional 
securitization (even if substantially all of its assets are financial 
exposures). Operating companies generally refer to companies that are 
established to conduct business with clients with the intention of 
earning a profit in their own right and generally produce goods or 
provide services beyond the business of investing, reinvesting, 
holding, or trading in financial assets. Accordingly, an equity 
investment in an operating company generally would be an equity 
exposure. Under the interim final rule, FDIC-supervised institutions 
are operating companies and do not fall under the definition of a 
traditional securitization. However, investment firms that generally do 
not produce goods or provide services beyond the business of investing, 
reinvesting, holding, or trading in financial assets, would not be 
operating companies under the interim final rule and would not qualify 
for this general exclusion from the definition of traditional 
securitization.
    Under the proposed rule, paragraph (10) of the definition of 
traditional securitization specifically excluded exposures to 
investment funds (as defined in the proposal) and collective investment 
and pension funds (as defined in relevant regulations and set forth in 
the proposed definition of ``traditional securitization''). These 
specific exemptions served to narrow the potential scope of the 
securitization framework. Investment funds, collective investment 
funds, pension funds regulated under ERISA and their foreign 
equivalents, and transactions registered with the SEC under the 
Investment Company Act of 1940 and their foreign equivalents would be 
exempted from the definition because these entities and transactions 
are regulated and subject to strict leverage requirements. The proposal 
defined an investment fund as a company (1) where all or substantially 
all of the assets of the fund are financial assets; and (2) that has no 
material liabilities. In addition, the agencies explained in the 
proposal that the capital requirements for an extension of credit to, 
or an equity holding in, these

[[Page 55431]]

transactions are more appropriately calculated under the rules for 
corporate and equity exposures, and that the securitization framework 
was not intended to apply to such transactions.
    Commenters generally agreed with the proposed exemptions from the 
definition of traditional securitization and requested that the 
agencies provide exemptions for exposures to a broader set of 
investment firms, such as pension funds operated by state and local 
governments. In view of the comments regarding pension funds, the 
interim final rule provides an additional exclusion from the definition 
of traditional securitization for a ``governmental plan'' (as defined 
in 29 U.S.C. 1002(32)) that complies with the tax deferral 
qualification requirements provided in the Internal Revenue Code. The 
FDIC believes that an exemption for such government plans is 
appropriate because they are subject to substantial regulation. 
Commenters also requested that the agencies provide exclusions for 
certain products provided to investment firms, such as extensions of 
short-term credit that support day-to-day investment-related 
activities. The FDIC believes that exposures that meet the definition 
of traditional securitization, regardless of product type or maturity, 
would fall under the securitization framework. Accordingly, the FDIC 
has not provided for any such exemptions under the interim final 
rule.\152\
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    \152\ The interim final rule also clarifies that the portion of 
a synthetic exposure to the capital of a financial institution that 
is deducted from capital is not a traditional securitization.
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    To address the treatment of investment firms that are not 
specifically excluded from the securitization framework, the proposed 
rule provided discretion to the primary Federal supervisor of a banking 
organization to exclude from the definition of a traditional 
securitization those transactions in which the underlying exposures are 
owned by an investment firm that exercises substantially unfettered 
control over the size and composition of its assets, liabilities, and 
off-balance sheet exposures. While the commenters supported the 
agencies' recognition that certain investment firms may warrant an 
exemption from the securitization framework, some expressed concern 
that the process for making such a determination may present 
significant implementation burden.
    To maintain sufficient flexibility to provide an exclusion for 
certain investment firms from the securitization framework, the FDIC 
has retained this discretionary provision in the interim final rule 
without change. In determining whether to exclude an investment firm 
from the securitization framework, the FDIC will consider a number of 
factors, including the assessment of the transaction's leverage, risk 
profile, and economic substance. This supervisory exclusion gives the 
FDIC discretion to distinguish structured finance transactions, to 
which the securitization framework is designed to apply, from those of 
flexible investment firms, such as certain hedge funds and private 
equity funds. Only investment firms that can easily change the size and 
composition of their capital structure, as well as the size and 
composition of their assets and off-balance sheet exposures, are 
eligible for the exclusion from the definition of traditional 
securitization under this provision. The FDIC does not consider managed 
collateralized debt obligation vehicles, structured investment 
vehicles, and similar structures, which allow considerable management 
discretion regarding asset composition but are subject to substantial 
restrictions regarding capital structure, to have substantially 
unfettered control. Thus, such transactions meet the definition of 
traditional securitization under the interim final rule.
    The line between securitization exposures and non-securitization 
exposures may be difficult to identify in some circumstances. In 
addition to the supervisory exclusion from the definition of 
traditional securitization described above, FDIC may expand the scope 
of the securitization framework to include other transactions if doing 
so is justified by the economics of the transaction. Similar to the 
analysis for excluding an investment firm from treatment as a 
traditional securitization, the FDIC will consider the economic 
substance, leverage, and risk profile of a transaction to ensure that 
an appropriate risk-based capital treatment is applied. The FDIC will 
consider a number of factors when assessing the economic substance of a 
transaction including, for example, the amount of equity in the 
structure, overall leverage (whether on- or off-balance sheet), whether 
redemption rights attach to the equity investor, and the ability of the 
junior tranches to absorb losses without interrupting contractual 
payments to more senior tranches.
    Under the proposal, a synthetic securitization was defined as a 
transaction in which: (1) all or a portion of the credit risk of one or 
more underlying exposures is transferred to one or more third parties 
through the use of one or more credit derivatives or guarantees (other 
than a guarantee that transfers only the credit risk of an individual 
retail exposure); (2) the credit risk associated with the underlying 
exposures has been separated into at least two tranches reflecting 
different levels of seniority; (3) performance of the securitization 
exposures depends upon the performance of the underlying exposures; and 
(4) all or substantially all of the underlying exposures are financial 
exposures (such as loans, commitments, credit derivatives, guarantees, 
receivables, asset-backed securities, mortgage-backed securities, other 
debt securities, or equity securities). The FDIC has decided to 
finalize the definition of synthetic securitization largely as 
proposed, but has also clarified in the interim final rule that 
transactions in which a portion of credit risk has been retained, not 
just transferred, through the use of credit derivatives is subject to 
the securitization framework.
    In response to the proposal, commenters requested that the agencies 
provide an exemption for guarantees that tranche credit risk under 
certain mortgage partnership finance programs, such as certain programs 
provided by the FHLBs, whereby participating member banking 
organizations provide credit enhancement to a pool of residential 
mortgage loans that have been delivered to the FHLB. The FDIC believes 
that these exposures that tranche credit risk meet the definition of a 
synthetic securitization and that the risk of such exposures would be 
appropriately captured under the securitization framework. In contrast, 
mortgage-backed pass-through securities (for example, those guaranteed 
by FHLMC or FNMA) that feature various maturities but do not involve 
tranching of credit risk do not meet the definition of a securitization 
exposure. Only those MBS that involve tranching of credit risk are 
considered to be securitization exposures.
    Consistent with the 2009 Enhancements, the proposed rule defined a 
resecuritization exposure as an on- or off-balance sheet exposure to a 
resecuritization; or an exposure that directly or indirectly references 
a resecuritization exposure. A resecuritization would have meant a 
securitization in which one or more of the underlying exposures is a 
securitization exposure. An exposure to an asset-backed commercial 
paper (ABCP) program would not have been a resecuritization exposure if 
either: (1) the program-wide credit enhancement does not meet the 
definition of a resecuritization exposure; or (2) the entity sponsoring 
the program fully

[[Page 55432]]

supports the commercial paper through the provision of liquidity so 
that the commercial paper holders effectively are exposed to the 
default risk of the sponsor instead of the underlying exposures.
    Commenters asked the agencies to narrow the definition of 
resecuritization by exempting resecuritizations in which a minimal 
amount of underlying assets are securitization exposures. According to 
commenters, the proposed definition would have a detrimental effect on 
certain collateralized loan obligation exposures, which typically 
include a small amount of securitization exposures as part of the 
underlying pool of assets in a securitization. Specifically, the 
commenters requested that resecuritizations be defined as a 
securitization in which five percent or more of the underlying 
exposures are securitizations. Commenters also asked the agencies to 
consider employing a pro rata treatment by only applying a higher 
capital surcharge to the portion of a securitization exposure that is 
backed by underlying securitization exposures. The FDIC believes that 
the introduction of securitization exposures into a pool of securitized 
exposures significantly increases the complexity and correlation risk 
of the exposures backing the securities issued in the transaction, and 
that the resecuritization framework is appropriate for applying risk-
based capital requirements to exposures to pools that contain 
securitization exposures.
    Commenters sought clarification as to whether the proposed 
definition of resecuritization would include a single exposure that has 
been retranched, such as a resecuritization of a real estate mortgage 
investment conduit (Re-REMIC). The FDIC believes that the increased 
capital surcharge, or p factor, for resecuritizations was meant to 
address the increased correlation risk and complexity resulting from 
retranching of multiple underlying exposures and was not intended to 
apply to the retranching of a single underlying exposure. As a result, 
the definition of resecuritization in the interim final rule has been 
refined to clarify that resecuritizations do not include exposures 
comprised of a single asset that has been retranched. The FDIC notes 
that for purposes of the interim final rule, a resecuritization does 
not include pass-through securities that have been pooled together and 
effectively re-issued as tranched securities. This is because the pass-
through securities do not tranche credit protection and, as a result, 
are not considered securitization exposures under the interim final 
rule.
    Under the interim final rule, if a transaction involves a 
traditional multi-seller ABCP conduit, an FDIC-supervised institution 
must determine whether the transaction should be considered a 
resecuritization exposure. For example, assume that an ABCP conduit 
acquires securitization exposures where the underlying assets consist 
of wholesale loans and no securitization exposures. As is typically the 
case in multi-seller ABCP conduits, each seller provides first-loss 
protection by over-collateralizing the conduit to which it sells loans. 
To ensure that the commercial paper issued by each conduit is highly-
rated, an FDIC-supervised institution sponsor provides either a pool-
specific liquidity facility or a program-wide credit enhancement such 
as a guarantee to cover a portion of the losses above the seller-
provided protection.
    The pool-specific liquidity facility generally is not a 
resecuritization exposure under the interim final rule because the 
pool-specific liquidity facility represents a tranche of a single asset 
pool (that is, the applicable pool of wholesale exposures), which 
contains no securitization exposures. However, a sponsor's program-wide 
credit enhancement that does not cover all losses above the seller-
provided credit enhancement across the various pools generally 
constitutes tranching of risk of a pool of multiple assets containing 
at least one securitization exposure, and, therefore, is a 
resecuritization exposure.
    In addition, if the conduit in this example funds itself entirely 
with a single class of commercial paper, then the commercial paper 
generally is not a resecuritization exposure if, as noted above, either 
(1) the program-wide credit enhancement does not meet the definition of 
a resecuritization exposure or (2) the commercial paper is fully 
supported by the sponsoring FDIC-supervised institution. When the 
sponsoring FDIC-supervised institution fully supports the commercial 
paper, the commercial paper holders effectively are exposed to default 
risk of the sponsor instead of the underlying exposures, and the 
external rating of the commercial paper is expected to be based 
primarily on the credit quality of the FDIC-supervised institution 
sponsor, thus ensuring that the commercial paper does not represent a 
tranched risk position.
2. Operational Requirements
a. Due Diligence Requirements
    During the recent financial crisis, it became apparent that many 
banking organizations relied exclusively on ratings issued by 
Nationally Recognized Statistical Rating Organizations (NRSROs) and did 
not perform internal credit analysis of their securitization exposures. 
Consistent with the Basel capital framework and the agencies' general 
expectations for investment analysis, the proposal required banking 
organizations to satisfy specific due diligence requirements for 
securitization exposures. Specifically, under the proposal a banking 
organization would be required to demonstrate, to the satisfaction of 
its primary Federal supervisor, a comprehensive understanding of the 
features of a securitization exposure that would materially affect its 
performance. The banking organization's analysis would have to be 
commensurate with the complexity of the exposure and the materiality of 
the exposure in relation to capital of the banking organization. On an 
ongoing basis (no less frequently than quarterly), the banking 
organization must evaluate, review, and update as appropriate the 
analysis required under section 41(c)(1) of the proposed rule for each 
securitization exposure. The analysis of the risk characteristics of 
the exposure prior to acquisition, and periodically thereafter, would 
have to consider:
    (1) Structural features of the securitization that materially 
impact the performance of the exposure, for example, the contractual 
cash-flow waterfall, waterfall-related triggers, credit enhancements, 
liquidity enhancements, market value triggers, the performance of 
organizations that service the position, and deal-specific definitions 
of default;
    (2) Relevant information regarding the performance of the 
underlying credit exposure(s), for example, the percentage of loans 30, 
60, and 90 days past due; default rates; prepayment rates; loans in 
foreclosure; property types; occupancy; average credit score or other 
measures of creditworthiness; average LTV ratio; and industry and 
geographic diversification data on the underlying exposure(s);
    (3) Relevant market data of the securitization, for example, bid-
ask spread, most recent sales price and historical price volatility, 
trading volume, implied market rating, and size, depth and 
concentration level of the market for the securitization; and
    (4) For resecuritization exposures, performance information on the 
underlying securitization exposures, for example, the issuer name and 
credit quality, and the characteristics and performance of the 
exposures underlying the securitization exposures.
    Commenters expressed concern that many banking organizations would 
be

[[Page 55433]]

unable to perform the due diligence necessary to meet the requirements 
and, as a result, would no longer purchase privately-issued 
securitization exposures and would increase their holdings of GSE-
guaranteed securities, thereby increasing the size of the GSEs. 
Commenters also expressed concerns regarding banking organizations' 
ability to obtain relevant market data for certain exposures, such as 
foreign exposures and exposures that are traded in markets that are 
typically illiquid, as well as their ability to obtain market data 
during periods of general market illiquidity. Commenters also stated 
concerns that uneven application of the requirements by supervisors may 
result in disparate treatment for the same exposure held at different 
banking organizations due to perceived management deficiencies. For 
these reasons, many commenters requested that the agencies consider 
removing the market data requirement from the due diligence 
requirements. In addition, some commenters suggested that the due 
diligence requirements be waived provided that all of the underlying 
loans meet certain underwriting standards.
    The FDIC notes that the proposed due diligence requirements are 
generally consistent with the goal of the its investment permissibility 
requirements, which provide that FDIC-supervised institutions must be 
able to determine the risk of loss is low, even under adverse economic 
conditions. The FDIC acknowledges potential restrictions on data 
availability and believes that the standards provide sufficient 
flexibility so that the due diligence requirements, such as relevant 
market data requirements, would be implemented as applicable. In 
addition, the FDIC notes that, where appropriate, pool-level data could 
be used to meet certain of the due diligence requirements. As a result, 
the FDIC is finalizing the due diligence requirements as proposed.
    Under the proposal, if a banking organization is not able to meet 
these due diligence requirements and demonstrate a comprehensive 
understanding of a securitization exposure to the satisfaction of its 
primary Federal supervisor, the banking organization would be required 
to assign a risk weight of 1,250 percent to the exposure. Commenters 
requested that the agencies adopt a more flexible approach to due 
diligence requirements rather than requiring a banking organization to 
assign a risk weight of 1,250 percent for violation of those 
requirements. For example, some commenters recommended that the 
agencies assign progressively increasing risk weights based on the 
severity and duration of infringements of due diligence requirements, 
to allow the agencies to differentiate between minor gaps in due 
diligence requirements and more serious violations.
    The FDIC believes that the requirement to assign a 1,250 percent 
risk weight, rather than applying a lower risk weight, to exposures for 
violation of these requirements is appropriate given that such 
information is required to monitor appropriately the risk of the 
underlying assets. The FDIC recognizes the importance of consistent and 
uniform application of the standards across FDIC-supervised 
institutions and will endeavor to ensure that the FDIC consistently 
reviews FDIC-supervised institutions' due diligence on securitization 
exposures. The FDIC believes that these efforts will mitigate concerns 
that the 1,250 percent risk weight will be applied inappropriately to 
FDIC-supervised institutions' failure to meet the due diligence 
requirements. At the same time, the FDIC believes that the requirement 
that an FDIC-supervised institution's analysis be commensurate with the 
complexity and materiality of the securitization exposure provides the 
FDIC-supervised institution with sufficient flexibility to mitigate the 
potential for undue burden. As a result, the FDIC is finalizing the 
risk weight requirements related to due diligence requirements as 
proposed.
b. Operational Requirements for Traditional Securitizations
    The proposal outlined certain operational requirements for 
traditional securitizations that had to be met in order to apply the 
securitization framework. The FDIC is finalizing these operational 
requirements as proposed.
    In a traditional securitization, an originating FDIC-supervised 
institution typically transfers a portion of the credit risk of 
exposures to third parties by selling them to a securitization special 
purpose entity (SPE).\153\ Consistent with the proposal, the interim 
final rule defines an FDIC-supervised institution to be an originating 
FDIC-supervised institution with respect to a securitization if it (1) 
directly or indirectly originated or securitized the underlying 
exposures included in the securitization; or (2) serves as an ABCP 
program sponsor to the securitization.
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    \153\ The interim final rule defines a securitization SPE as a 
corporation, trust, or other entity organized for the specific 
purpose of holding underlying exposures of a securitization, the 
activities of which are limited to those appropriate to accomplish 
this purpose, and the structure of which is intended to isolate the 
underlying exposures held by the entity from the credit risk of the 
seller of the underlying exposures to the entity.
---------------------------------------------------------------------------

    Under the interim final rule, consistent with the proposal, an 
FDIC-supervised institution that transfers exposures it has originated 
or purchased to a securitization SPE or other third party in connection 
with a traditional securitization can exclude the underlying exposures 
from the calculation of risk-weighted assets only if each of the 
following conditions are met: (1) The exposures are not reported on the 
FDIC-supervised institution's consolidated balance sheet under GAAP; 
(2) the FDIC-supervised institution has transferred to one or more 
third parties credit risk associated with the underlying exposures; and 
(3) any clean-up calls relating to the securitization are eligible 
clean-up calls (as discussed below).\154\
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    \154\ Commenters asked the agencies to consider the interaction 
between the proposed non-consolidation condition and the agencies' 
proposed rules implementing section 941 of the Dodd-Frank Act 
regarding risk retention, given concerns that satisfaction of 
certain of the proposed risk retention requirements would affect the 
accounting treatment for certain transactions. The FDIC acknowledges 
these concerns and will take into consideration any effects on the 
securitization framework as they continue to develop the risk 
retention rules.
---------------------------------------------------------------------------

    An originating FDIC-supervised institution that meets these 
conditions must hold risk-based capital against any credit risk it 
retains or acquires in connection with the securitization. An 
originating FDIC-supervised institution that fails to meet these 
conditions is required to hold risk-based capital against the 
transferred exposures as if they had not been securitized and must 
deduct from common equity tier 1 capital any after-tax gain-on-sale 
resulting from the transaction.
    In addition, if a securitization (1) includes one or more 
underlying exposures in which the borrower is permitted to vary the 
drawn amount within an agreed limit under a line of credit, and (2) 
contains an early amortization provision, the originating FDIC-
supervised institution is required to hold risk-based capital against 
the transferred exposures as if they had not been securitized and 
deduct from common equity tier 1 capital any after-tax gain-on-sale 
resulting from the transaction.\155\ The FDIC believes that

[[Page 55434]]

this treatment is appropriate given the lack of risk transference in 
securitizations of revolving underlying exposures with early 
amortization provisions.
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    \155\ Many securitizations of revolving credit facilities (for 
example, credit card receivables) contain provisions that require 
the securitization to be wound down and investors to be repaid if 
the excess spread falls below a certain threshold. This decrease in 
excess spread may, in some cases, be caused by deterioration in the 
credit quality of the underlying exposures. An early amortization 
event can increase an FDIC-supervised institution capital needs if 
new draws on the revolving credit facilities need to be financed by 
the FDIC-supervised institution using on-balance sheet sources of 
funding. The payment allocations used to distribute principal and 
finance charge collections during the amortization phase of these 
transactions also can expose the FDIC-supervised institution to a 
greater risk of loss than in other securitization transactions. The 
interim final rule defines an early amortization provision as a 
provision in a securitization's governing documentation that, when 
triggered, causes investors in the securitization exposures to be 
repaid before the original stated maturity of the securitization 
exposure, unless the provision (1) is solely triggered by events not 
related to the performance of the underlying exposures or the 
originating FDIC-supervised institution (such as material changes in 
tax laws or regulations), or (2) leaves investors fully exposed to 
future draws by borrowers on the underlying exposures even after the 
provision is triggered.
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c. Operational Requirements for Synthetic Securitizations
    In general, the proposed operational requirements for synthetic 
securitizations were similar to those proposed for traditional 
securitizations. The operational requirements for synthetic 
securitizations, however, were more detailed to ensure that the 
originating banking organization has truly transferred credit risk of 
the underlying exposures to one or more third parties. Under the 
proposal, an originating banking organization would have been able to 
recognize for risk-based capital purposes the use of a credit risk 
mitigant to hedge underlying exposures only if each of the conditions 
in the proposed definition of ``synthetic securitization'' was 
satisfied. The FDIC is finalizing the operational requirements largely 
as proposed. However, to ensure that synthetic securitizations created 
through tranched guarantees and credit derivatives are properly 
included in the framework, in the interim final rule the FDIC has 
amended the operational requirements to recognize guarantees that meet 
all of the criteria set forth in the definition of eligible guarantee 
except the criterion under paragraph (3) of the definition. 
Additionally, the operational criteria recognize a credit derivative 
provided that the credit derivative meets all of the criteria set forth 
in the definition of eligible credit derivative except for paragraph 3 
of the definition of eligible guarantee. As a result, a guarantee or 
credit derivative that provides a tranched guarantee would not be 
excluded by the operational requirements for synthetic securitizations.
    Failure to meet these operational requirements for a synthetic 
securitization prevents an FDIC-supervised institution that has 
purchased tranched credit protection referencing one or more of its 
exposures from using the securitization framework with respect to the 
reference exposures and requires the FDIC-supervised institution to 
hold risk-based capital against the underlying exposures as if they had 
not been synthetically securitized. An FDIC-supervised institution that 
holds a synthetic securitization as a result of purchasing credit 
protection may use the securitization framework to determine the risk-
based capital requirement for its exposure. Alternatively, it may 
instead choose to disregard the credit protection and use the general 
credit risk framework. An FDIC-supervised institution that provides 
tranched credit protection in the form of a synthetic securitization or 
credit protection to a synthetic securitization must use the 
securitization framework to compute risk-based capital requirements for 
its exposures to the synthetic securitization even if the originating 
FDIC-supervised institution fails to meet one or more of the 
operational requirements for a synthetic securitization.
d. Clean-Up Calls
    Under the proposal, to satisfy the operational requirements for 
securitizations and enable an originating banking organization to 
exclude the underlying exposures from the calculation of its risk-based 
capital requirements, any clean-up call associated with a 
securitization would need to be an eligible clean-up call. The proposed 
rule defined a clean-up call as a contractual provision that permits an 
originating banking organization or servicer to call securitization 
exposures before their stated maturity or call date. In the case of a 
traditional securitization, a clean-up call generally is accomplished 
by repurchasing the remaining securitization exposures once the amount 
of underlying exposures or outstanding securitization exposures falls 
below a specified level. In the case of a synthetic securitization, the 
clean-up call may take the form of a clause that extinguishes the 
credit protection once the amount of underlying exposures has fallen 
below a specified level.
    The interim final rule retains the proposed treatment for clean-up 
calls, and defines an eligible clean-up call as a clean-up call that 
(1) is exercisable solely at the discretion of the originating FDIC-
supervised institution or servicer; (2) is not structured to avoid 
allocating losses to securitization exposures held by investors or 
otherwise structured to provide credit enhancement to the 
securitization (for example, to purchase non-performing underlying 
exposures); and (3) for a traditional securitization, is only 
exercisable when 10 percent or less of the principal amount of the 
underlying exposures or securitization exposures (determined as of the 
inception of the securitization) is outstanding; or, for a synthetic 
securitization, is only exercisable when 10 percent or less of the 
principal amount of the reference portfolio of underlying exposures 
(determined as of the inception of the securitization) is outstanding. 
Where a securitization SPE is structured as a master trust, a clean-up 
call with respect to a particular series or tranche issued by the 
master trust meets criteria (3) of the definition of ``eligible clean-
up call'' as long as the outstanding principal amount in that series or 
tranche was 10 percent or less of its original amount at the inception 
of the series.
3. Risk-Weighted Asset Amounts for Securitization Exposures
    The proposed framework for assigning risk-based capital 
requirements to securitization exposures required banking organizations 
generally to calculate a risk-weighted asset amount for a 
securitization exposure by applying either (i) the simplified 
supervisory formula approach (SSFA), described in section VIII.H of the 
preamble, or (ii) if the banking organization is not subject to the 
market risk rule, a gross-up approach similar to an approach provided 
under the general risk-based capital rules. A banking organization 
would be required to apply either the SSFA or the gross-up approach 
consistently across all of its securitization exposures. However, a 
banking organization could choose to assign a 1,250 percent risk weight 
to any securitization exposure.
    Commenters expressed concerns regarding the potential differences 
in risk weights for similar exposures when using the gross-up approach 
compared to the SSFA, and the potential for capital arbitrage depending 
on the outcome of capital treatment under the framework. The FDIC 
acknowledges these concerns and, to reduce arbitrage opportunities, has 
required that a banking organization apply either the gross-up approach 
or the SSFA consistently across all of its securitization exposures. 
Commenters also asked the agencies to clarify how often and under what 
circumstances a banking organization is allowed to switch between the 
SSFA and the gross-up approach. While the FDIC is not placing 
restrictions on the ability of

[[Page 55435]]

FDIC-supervised institutions to switch from the SSFA to the gross-up 
approach, the FDIC does not anticipate there should be a need for 
frequent changes in methodology by an FDIC-supervised institution 
absent significant change in the nature of the FDIC-supervised 
institution's securitization activities, and expect FDIC-supervised 
institutions to be able to provide a rationale for changing 
methodologies to the FDIC if requested.
    Citing potential disadvantages of the proposed securitization 
framework as compared to standards to be applied to international 
competitors that rely on the use of credit ratings, some commenters 
requested that banking organizations be able to continue to implement a 
ratings-based approach to allow the agencies more time to calibrate the 
SSFA in accordance with international standards that rely on ratings. 
The FDIC again observes that the use of ratings in FDIC regulations is 
inconsistent with section 939A of the Dodd-Frank Act. Accordingly, the 
interim final rule does not include any references to, or reliance on, 
credit ratings. The FDIC has determined that the SSFA is an appropriate 
substitute standard to credit ratings that can be used to measure risk-
based capital requirements and may be implemented uniformly across 
institutions.
    Under the proposed securitization framework, banking organizations 
would have been required or could choose to assign a risk weight of 
1,250 percent to certain securitization exposures. Commenters stated 
that the 1,250 percent risk weight required under certain circumstances 
in the securitization framework would penalize banking organizations 
that hold capital above the total risk-based capital minimum and could 
require a banking organization to hold more capital against the 
exposure than the actual exposure amount at risk. As a result, 
commenters requested that the amount of risk-based capital required to 
be held against a banking organization's exposure be capped at the 
exposure amount. The FDIC has decided to retain the proposed 1,250 
percent risk weight in the interim final rule, consistent with their 
overall goals of simplicity and comparability, to provide for 
comparability in risk-weighted asset amounts for the same exposure 
across institutions.
    Consistent with the proposal, the interim final rule provides for 
alternative treatment of securitization exposures to ABCP programs and 
certain gains-on-sale and CEIO exposures. Specifically, similar to the 
general risk-based capital rules, the interim final rule includes a 
minimum 100 percent risk weight for interest-only mortgage-backed 
securities and exceptions to the securitization framework for certain 
small-business loans and certain derivatives as described below. An 
FDIC-supervised institution may use the securitization credit risk 
mitigation rules to adjust the capital requirement under the 
securitization framework for an exposure to reflect certain collateral, 
credit derivatives, and guarantees, as described in more detail below.
a. Exposure Amount of a Securitization Exposure
    Under the interim final rule, the exposure amount of an on-balance 
sheet securitization exposure that is not a repo-style transaction, 
eligible margin loan, OTC derivative contract or derivative that is a 
cleared transaction is generally the FDIC-supervised institution's 
carrying value of the exposure. The interim final rule modifies the 
proposed treatment for determining exposure amounts under the 
securitization framework to reflect the ability of an FDIC-supervised 
institution not subject to the advanced approaches rule to make an AOCI 
opt-out election. As a result, the exposure amount of an on-balance 
sheet securitization exposure that is an available-for-sale debt 
security or an available-for-sale debt security transferred to held-to-
maturity held by an FDIC-supervised institution that has made an AOCI 
opt-out election is the FDIC-supervised institution's carrying value 
(including net accrued but unpaid interest and fees), less any net 
unrealized gains on the exposure and plus any net unrealized losses on 
the exposure.
    The exposure amount of an off-balance sheet securitization exposure 
that is not an eligible ABCP liquidity facility, a repo-style 
transaction, eligible margin loan, an OTC derivative contract (other 
than a credit derivative), or a derivative that is a cleared 
transaction (other than a credit derivative) is the notional amount of 
the exposure. The treatment for OTC credit derivatives is described in 
more detail below.
    For purposes of calculating the exposure amount of an off-balance 
sheet exposure to an ABCP securitization exposure, such as a liquidity 
facility, consistent with the proposed rule, the notional amount may be 
reduced to the maximum potential amount that the FDIC-supervised 
institution could be required to fund given the ABCP program's current 
underlying assets (calculated without regard to the current credit 
quality of those assets). Thus, if $100 is the maximum amount that 
could be drawn given the current volume and current credit quality of 
the program's assets, but the maximum potential draw against these same 
assets could increase to as much as $200 under some scenarios if their 
credit quality were to improve, then the exposure amount is $200. An 
ABCP program is defined as a program established primarily for the 
purpose of issuing commercial paper that is investment grade and backed 
by underlying exposures held in a securitization SPE. An eligible ABCP 
liquidity facility is defined as a liquidity facility supporting ABCP, 
in form or in substance, which is subject to an asset quality test at 
the time of draw that precludes funding against assets that are 90 days 
or more past due or in default. Notwithstanding these eligibility 
requirements, a liquidity facility is an eligible ABCP liquidity 
facility if the assets or exposures funded under the liquidity facility 
that do not meet the eligibility requirements are guaranteed by a 
sovereign that qualifies for a 20 percent risk weight or lower.
    Commenters, citing accounting changes that require certain ABCP 
securitization exposures to be consolidated on banking organizations 
balance sheets, asked the agencies to consider capping the amount of an 
off-balance sheet securitization exposure to the maximum potential 
amount that the banking organization could be required to fund given 
the securitization SPE's current underlying assets. These commenters 
stated that the downward adjustment of the notional amount of a banking 
organization's off-balance sheet securitization exposure to the amount 
of the available asset pool generally should be permitted regardless of 
whether the exposure to a customer SPE is made directly through a 
credit commitment by the banking organization to the SPE or indirectly 
through a funding commitment that the banking organization makes to an 
ABCP conduit. The FDIC believes that the requirement to hold risk-based 
capital against the full amount that may be drawn more accurately 
reflects the risks of potential draws under these exposures and have 
decided not to provide a separate provision for off-balance sheet 
exposures to customer-sponsored SPEs that are not ABCP conduits.
    Under the interim final rule, consistent with the proposal, the 
exposure amount of an eligible ABCP liquidity facility that is subject 
to the SSFA equals the notional amount of the exposure multiplied by a 
100 percent CCF. The exposure amount of an eligible ABCP liquidity 
facility that is not subject to the SSFA is the notional

[[Page 55436]]

amount of the exposure multiplied by a 50 percent CCF. The exposure 
amount of a securitization exposure that is a repo-style transaction, 
eligible margin loan, an OTC derivative contract (other than a 
purchased credit derivative), or derivative that is a cleared 
transaction (other than a purchased credit derivative) is the exposure 
amount of the transaction as calculated under section 324.34 or section 
324.37 of the interim final rule, as applicable.
b. Gains-on-Sale and Credit-Enhancing Interest-Only Strips
    Consistent with the proposal, under the interim final rule an FDIC-
supervised institution must deduct from common equity tier 1 capital 
any after-tax gain-on-sale resulting from a securitization and must 
apply a 1,250 percent risk weight to the portion of a CEIO that does 
not constitute an after-tax gain-on-sale. The FDIC believes this 
treatment is appropriate given historical supervisory concerns with the 
subjectivity involved in valuations of gains-on-sale and CEIOs. 
Furthermore, although the treatments for gains-on-sale and CEIOs can 
increase an originating FDIC-supervised institution's risk-based 
capital requirement following a securitization, the FDIC believes that 
such anomalies are rare where a securitization transfers significant 
credit risk from the originating FDIC-supervised institution to third 
parties.
c. Exceptions Under the Securitization Framework
    Commenters stated concerns that the proposal would inhibit demand 
for private label securitization by making it more difficult for 
banking organizations, especially community banking organizations, to 
purchase private label mortgage-backed securities. Instead of 
implementing the SSFA and the gross-up approach, commenters suggested 
allowing banking organizations to assign a 20 percent risk weight to 
securitization exposures that are backed by mortgage exposures that 
would be ``qualified mortgages'' under the Truth in Lending Act and 
implementing regulations issued by the CFPB.\156\ The FDIC believes 
that the proposed securitization approaches would be more appropriate 
in capturing the risks provided by structured transactions, including 
those backed by QM. The interim final rule does not provide an 
exclusion for such exposures.
---------------------------------------------------------------------------

    \156\ 78 FR 6408 (Jan. 30, 2013).
---------------------------------------------------------------------------

    Under the interim final rule, consistent with the proposal, there 
are several exceptions to the general provisions in the securitization 
framework that parallel the general risk-based capital rules. First, an 
FDIC-supervised institution is required to assign a risk weight of at 
least 100 percent to an interest-only MBS. The FDIC believes that a 
minimum risk weight of 100 percent is prudent in light of the 
uncertainty implied by the substantial price volatility of these 
securities. Second, as required by federal statute, a special set of 
rules continues to apply to securitizations of small-business loans and 
leases on personal property transferred with retained contractual 
exposure by well-capitalized depository institutions.\157\ Finally, if 
a securitization exposure is an OTC derivative contract or derivative 
contract that is a cleared transaction (other than a credit derivative) 
that has a first priority claim on the cash flows from the underlying 
exposures (notwithstanding amounts due under interest rate or currency 
derivative contracts, fees due, or other similar payments), an FDIC-
supervised institution may choose to set the risk-weighted asset amount 
of the exposure equal to the amount of the exposure.
---------------------------------------------------------------------------

    \157\ See 12 U.S.C. 1835. This provision places a cap on the 
risk-based capital requirement applicable to a well-capitalized 
depository institution that transfers small-business loans with 
recourse. The interim final rule does not expressly provide that the 
FDIC may permit adequately-capitalized FDIC-supervised institutions 
to use the small business recourse rule on a case-by-case basis 
because the FDIC may make such a determination under the general 
reservation of authority in section 1 of the interim final rule.
---------------------------------------------------------------------------

d. Overlapping Exposures
    Consistent with the proposal, the interim final rule includes 
provisions to limit the double counting of risks in situations 
involving overlapping securitization exposures. If an FDIC-supervised 
institution has multiple securitization exposures that provide 
duplicative coverage to the underlying exposures of a securitization 
(such as when an FDIC-supervised institution provides a program-wide 
credit enhancement and multiple pool-specific liquidity facilities to 
an ABCP program), the FDIC-supervised institution is not required to 
hold duplicative risk-based capital against the overlapping position. 
Instead, the FDIC-supervised institution must apply to the overlapping 
position the applicable risk-based capital treatment under the 
securitization framework that results in the highest risk-based capital 
requirement.
e. Servicer Cash Advances
    A traditional securitization typically employs a servicing banking 
organization that, on a day-to-day basis, collects principal, interest, 
and other payments from the underlying exposures of the securitization 
and forwards such payments to the securitization SPE or to investors in 
the securitization. Servicing banking organizations often provide a 
facility to the securitization under which the servicing banking 
organization may advance cash to ensure an uninterrupted flow of 
payments to investors in the securitization, including advances made to 
cover foreclosure costs or other expenses to facilitate the timely 
collection of the underlying exposures. These servicer cash advance 
facilities are securitization exposures.
    Consistent with the proposal, under the interim final rule an FDIC-
supervised institution must apply the SSFA or the gross-up approach, as 
described below, or a 1,250 percent risk weight to a servicer cash 
advance facility. The treatment of the undrawn portion of the facility 
depends on whether the facility is an eligible servicer cash advance 
facility. An eligible servicer cash advance facility is a servicer cash 
advance facility in which: (1) the servicer is entitled to full 
reimbursement of advances, except that a servicer may be obligated to 
make non-reimbursable advances for a particular underlying exposure if 
any such advance is contractually limited to an insignificant amount of 
the outstanding principal balance of that exposure; (2) the servicer's 
right to reimbursement is senior in right of payment to all other 
claims on the cash flows from the underlying exposures of the 
securitization; and (3) the servicer has no legal obligation to, and 
does not make, advances to the securitization if the servicer concludes 
the advances are unlikely to be repaid.
    Under the proposal, a banking organization that is a servicer under 
an eligible servicer cash advance facility is not required to hold 
risk-based capital against potential future cash advanced payments that 
it may be required to provide under the contract governing the 
facility. A banking organization that provides a non-eligible servicer 
cash advance facility would determine its risk-based capital 
requirement for the notional amount of the undrawn portion of the 
facility in the same manner as the banking organization would determine 
its risk-based capital requirement for other off-balance sheet 
securitization exposures. The FDIC is clarifying the terminology in the 
interim final rule to specify that an FDIC-supervised institution that 
is a servicer under a non-eligible servicer cash advance facility must 
hold risk-based capital against the amount of all potential

[[Page 55437]]

future cash advance payments that it may be contractually required to 
provide during the subsequent 12-month period under the contract 
governing the facility.
f. Implicit Support
    Consistent with the proposed rule, the interim final rule requires 
an FDIC-supervised institution that provides support to a 
securitization in excess of its predetermined contractual obligation 
(implicit support) to include in risk-weighted assets all of the 
underlying exposures associated with the securitization as if the 
exposures had not been securitized, and deduct from common equity tier 
1 capital any after-tax gain-on-sale resulting from the 
securitization.\158\ In addition, the FDIC-supervised institution must 
disclose publicly (i) that it has provided implicit support to the 
securitization, and (ii) the risk-based capital impact to the FDIC-
supervised institution of providing such implicit support. The FDIC 
notes that under the reservations of authority set forth in the interim 
final rule, the FDIC also could require the FDIC-supervised institution 
to hold risk-based capital against all the underlying exposures 
associated with some or all the FDIC-supervised institution's other 
securitizations as if the underlying exposures had not been 
securitized, and to deduct from common equity tier 1 capital any after-
tax gain-on-sale resulting from such securitizations.
---------------------------------------------------------------------------

    \158\ The interim final rule is consistent with longstanding 
guidance on the treatment of implicit support, entitled, 
``Interagency Guidance on Implicit Recourse in Asset 
Securitizations,'' (May 23, 2002). See FIL-52-2002.
---------------------------------------------------------------------------

4. Simplified Supervisory Formula Approach
    The proposed rule incorporated the SSFA, a simplified version of 
the supervisory formula approach (SFA) in the advanced approaches rule, 
to assign risk weights to securitization exposures. Many of the 
commenters focused on the burden of implementing the SSFA given the 
complexity of the approach in relation to the proposed treatment of 
mortgages exposures. Commenters also stated concerns that 
implementation of the SSFA would generally restrict credit growth and 
create competitive equity concerns with other jurisdictions 
implementing ratings-based approaches. The FDIC acknowledges that there 
may be differences in capital requirements under the SSFA and the 
ratings-based approach in the Basel capital framework. As explained 
previously, the use of alternative standards of creditworthiness in 
FDIC regulations is consistent with section 939A of the Dodd-Frank Act. 
Any alternative standard developed by the FDIC may not generate the 
same result as a ratings-based capital framework under every 
circumstance. However, the FDIC, together with the other agencies, has 
designed the SSFA to result in generally comparable capital 
requirements to those that would be required under the Basel ratings-
based approach without undue complexity. The FDIC will monitor 
implementation of the SSFA and, based on supervisory experience, 
consider what modifications, if any, may be necessary to improve the 
SSFA in the future.
    The FDIC has adopted the proposed SSFA largely as proposed, with a 
revision to the delinquency parameter (parameter W) that will increase 
the risk sensitivity of the approach and clarify the operation of the 
formula when the contractual terms of the exposures underlying a 
securitization permit borrowers to defer payments of principal and 
interest, as described below. To limit potential burden of implementing 
the SSFA, FDIC-supervised institutions that are not subject to the 
market risk rule may also choose to use as an alternative the gross-up 
approach described in section VIII.H.5 below, provided that they apply 
the gross-up approach to all of their securitization exposures.
    Similar to the SFA under the advanced approaches rule, the SSFA is 
a formula that starts with a baseline derived from the capital 
requirements that apply to all exposures underlying the securitization 
and then assigns risk weights based on the subordination level of an 
exposure. The FDIC designed the SSFA to apply relatively higher capital 
requirements to the more risky junior tranches of a securitization that 
are the first to absorb losses, and relatively lower requirements to 
the most senior exposures.
    The SSFA applies a 1,250 percent risk weight to securitization 
exposures that absorb losses up to the amount of capital that is 
required for the underlying exposures under subpart D of the interim 
final rule had those exposures been held directly by an FDIC-supervised 
institution. In addition, the FDIC is implementing a supervisory risk-
weight floor or minimum risk weight for a given securitization of 20 
percent. While some commenters requested that the floor be lowered for 
certain low-risk securitization exposures, the FDIC believes that a 20 
percent floor is prudent given the performance of many securitization 
exposures during the recent crisis.
    At the inception of a securitization, the SSFA requires more 
capital on a transaction-wide basis than would be required if the 
underlying assets had not been securitized. That is, if the FDIC-
supervised institution held every tranche of a securitization, its 
overall capital requirement would be greater than if the FDIC-
supervised institution held the underlying assets in portfolio. The 
FDIC believes this overall outcome is important in reducing the 
likelihood of regulatory capital arbitrage through securitizations.
    The proposed rule required banking organizations to use data to 
assign the SSFA parameters that are not more than 91 days old. 
Commenters requested that the data requirement be amended to account 
for securitizations of underlying assets with longer payment periods, 
such as transactions featuring annual or biannual payments. In 
response, the FDIC amended this requirement in the interim final rule 
so that data used to determine SSFA parameters must be the most 
currently available data. However, for exposures that feature payments 
on a monthly or quarterly basis, the interim final rule requires the 
data to be no more than 91 calendar days old.
    Under the interim final rule, to use the SSFA, an FDIC-supervised 
institution must obtain or determine the weighted-average risk weight 
of the underlying exposures (KG), as well as the attachment 
and detachment points for the FDIC-supervised institution's position 
within the securitization structure. ``KG,'' is calculated 
using the risk-weighted asset amounts in the standardized approach and 
is expressed as a decimal value between zero and 1 (that is, an average 
risk weight of 100 percent means that KG would equal 0.08). 
The FDIC-supervised institution may recognize the relative seniority of 
the exposure, as well as all cash funded enhancements, in determining 
attachment and detachment points. In addition, an FDIC-supervised 
institution must be able to determine the credit performance of the 
underlying exposures.
    The commenters expressed concerns that certain types of data that 
would be required to calculate KG may not be readily 
available, particularly data necessary to calculate the weighted-
average capital requirement of residential mortgages according to the 
proposed rule's standardized approach for residential mortgages. Some 
commenters therefore asked to be able to use the risk weights under the 
general risk-based capital rules for residential mortgages in the 
calculation of KG. Commenters also requested the use of 
alternative estimates or conservative

[[Page 55438]]

proxy data to implement the SSFA when a parameter is not readily 
available, especially for securitizations of mortgage exposures. As 
previously discussed, the FDIC is retaining in the interim final rule 
the existing mortgage treatment under the general risk-based capital 
rules. Accordingly, the FDIC believes that FDIC-supervised institutions 
should generally have access to the data necessary to calculate the 
SSFA parameters for mortgage exposures.
    Commenters characterized the KG parameter as not 
sufficiently risk sensitive and asked the agencies to provide more 
recognition under the SSFA with respect to the credit quality of the 
underlying assets. Some commenters observed that the SSFA did not take 
into account sequential pay structures. As a result, some commenters 
requested that banking organizations be allowed to implement cash-flow 
models to increase risk sensitivity, especially given that the SSFA 
does not recognize the various types of cash-flow waterfalls for 
different transactions.
    In developing the interim final rule, the FDIC considered the 
trade-offs between added risk sensitivity, increased complexity that 
would result from reliance on cash-flow models, and consistency with 
standardized approach risk weights. The FDIC believes it is important 
to calibrate capital requirements under the securitization framework in 
a manner that is consistent with the calibration used for the 
underlying assets of the securitization to reduce complexity and best 
align capital requirements under the securitization framework with 
requirements for credit exposures under the standardized approach. As a 
result, the FDIC has decided to finalize the KG parameter as 
proposed.
    To make the SSFA more risk-sensitive and forward-looking, the 
parameter KG is modified based on delinquencies among the 
underlying assets of the securitization. The resulting adjusted 
parameter is labeled KA. KA is set equal to the 
weighted average of the KG value and a fixed parameter equal 
to 0.5.

KA - C¹ - W) [middot] KG + (0.5 
[middot] W)
    Under the proposal, the W parameter equaled the ratio of the sum of 
the dollar amounts of any underlying exposures of the securitization 
that are 90 days or more past due, subject to a bankruptcy or 
insolvency proceeding, in the process of foreclosure, held as real 
estate owned, in default, or have contractually deferred interest for 
90 days or more divided by the ending balance, measured in dollars, of 
the underlying exposures. Commenters expressed concern that the 
proposal would require additional capital for payment deferrals that 
are unrelated to the creditworthiness of the borrower, and encouraged 
the agencies to amend the proposal so that the numerator of the W 
parameter would not include deferrals of interest that are unrelated to 
the performance of the loan or the borrower, as is the case for certain 
federally-guaranteed student loans or certain consumer credit 
facilities that allow the borrower to defer principal and interest 
payments for the first 12 months following the purchase of a product or 
service. Some commenters also asserted that the proposed SSFA would not 
accurately calibrate capital requirements for those student loans with 
a partial government guarantee. Another commenter also asked for 
clarification on which exposures are in the securitized pool.
    In response to these concerns, the FDIC has decided to explicitly 
exclude from the numerator of parameter W loans with deferral of 
principal or interest for (1) federally-guaranteed student loans, in 
accordance with the terms of those programs, or (2) for consumer loans, 
including non-federally-guaranteed student loans, provided that such 
payments are deferred pursuant to provisions included in the contract 
at the time funds are disbursed that provide for period(s) of deferral 
that are not initiated based on changes in the creditworthiness of the 
borrower. The FDIC believes that the SSFA appropriately reflects 
partial government guarantees because such guarantees are reflected in 
KG in the same manner that they are reflected in capital 
requirements for loans held on balance sheet. For clarity, the FDIC has 
eliminated the term ``securitized pool'' from the interim final rule. 
The calculation of parameter W includes all underlying exposures of a 
securitization transaction.
    The FDIC believes that, with the parameter W calibration set equal 
to 0.5, the overall capital requirement produced by the SSFA is 
sufficiently responsive and prudent to ensure sufficient capital for 
pools that demonstrate credit weakness. The entire specification of the 
SSFA in the interim final rule is as follows:
[GRAPHIC] [TIFF OMITTED] TR10SE13.005

    KSSFA is the risk-based capital requirement for the 
securitization exposure and is a function of three variables, labeled 
a, u, and l. The constant e is the base of the natural logarithms 
(which equals 2.71828). The variables a, u, and l have the following 
definitions:
[GRAPHIC] [TIFF OMITTED] TR10SE13.006

    The values of A and D denote the attachment and detachment points, 
respectively, for the tranche. Specifically, A is the attachment point 
for the tranche that contains the securitization exposure and 
represents the threshold at which credit losses will first be allocated 
to the exposure. This input is the ratio, as expressed as a decimal 
value between zero and one, of the dollar amount of the securitization 
exposures that are subordinated to the tranche that contains the 
securitization exposure held by the FDIC-supervised institution to the 
current dollar amount of all underlying exposures.
    Commenters requested that the agencies recognize unfunded forms of

[[Page 55439]]

credit support, such as excess spread, in the calculation of A. 
Commenters also stated that where the carrying value of an exposure is 
less than its par value, the discount to par for a particular exposure 
should be recognized as additional credit protection. However, the FDIC 
believes it is prudent to recognize only funded credit enhancements, 
such as overcollateralization or reserve accounts funded by accumulated 
cash flows, in the calculation of parameter A. Discounts and write-
downs can be related to credit risk or due to other factors such as 
interest rate movements or liquidity. As a result, the FDIC does not 
believe that discounts or write-downs should be factored into the SSFA 
as credit enhancement.
    Parameter D is the detachment point for the tranche that contains 
the securitization exposure and represents the threshold at which 
credit losses allocated to the securitization exposure would result in 
a total loss of principal. This input, which is a decimal value between 
zero and one, equals the value of parameter A plus the ratio of the 
current dollar amount of the securitization exposures that are pari 
passu with the FDIC-supervised institution's securitization exposure 
(that is, have equal seniority with respect to credit risk) to the 
current dollar amount of all underlying exposures. The SSFA 
specification is completed by the constant term p, which is set equal 
to 0.5 for securitization exposures that are not resecuritizations, or 
1.5 for resecuritization exposures, and the variable KA, 
which is described above.
    When parameter D for a securitization exposure is less than or 
equal to KA, the exposure must be assigned a risk weight of 
1,250 percent. When A for a securitization exposure is greater than or 
equal to KA, the risk weight of the exposure, expressed as a 
percent, would equal KSSFA times 1,250. When A is less than 
KA and D is greater than KA, the applicable risk 
weight is a weighted average of 1,250 percent and 1,250 percent times 
KSSFA. As suggested by commenters, in order to make the 
description of the SSFA formula clearer, the term ``l'' has been 
redefined to be the maximum of 0 and A-KA, instead of the 
proposed A-KA. The risk weight would be determined according 
to the following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.007

    For resecuritizations, FDIC-supervised institutions must use the 
SSFA to measure the underlying securitization exposure's contribution 
to KG. For example, consider a hypothetical securitization tranche that 
has an attachment point at 0.06 and a detachment point at 0.07. Then 
assume that 90 percent of the underlying pool of assets were mortgage 
loans that qualified for a 50 percent risk weight and that the 
remaining 10 percent of the pool was a tranche of a separate 
securitization (where the underlying exposures consisted of mortgages 
that also qualified for a 50 percent weight). An exposure to this 
hypothetical tranche would meet the definition of a resecuritization 
exposure. Next, assume that the attachment point A of the underlying 
securitization that is the 10 percent share of the pool is 0.06 and the 
detachment point D is 0.08. Finally, assume that none of the underlying 
mortgage exposures of either the hypothetical tranche or the underlying 
securitization exposure meet the interim final rule definition of 
``delinquent.''
    The value of KG for the resecuritization exposure equals 
the weighted average of the two distinct KG values. For the 
mortgages that qualify for the 50 percent risk weight and represent 90 
percent of the resecuritization, KG equals 0.04 (that is, 50 
percent of the 8 percent risk-based capital standard). 
KG,re-securitization = (0.9 [middot] 0.04) + (0.1 [middot] 
KG,securitization)
    To calculate the value of KG,securitization, an FDIC-
supervised institution would use the attachment and detachment points 
of 0.06 and 0.08, respectively. Applying those input parameters to the 
SSFA (together with p = 0.5 and KG = 0.04) results in a 
KG,securitization equal to 0.2325.
    Substituting this value into the equation yields:

KG,re-securitization = (0.9 [middot] 0.04) + (0.1 [middot] 
0.2325) = 0.05925
    This value of 0.05925 for KG,re-securitization, would 
then be used in the calculation of the risk-based capital requirement 
for the tranche of the resecuritization (where A = 0.06, B = 0.07, and 
p = 1.5). The result is a risk weight of 1,172 percent for the tranche 
that runs from 0.06 to 0.07. Given that the attachment point is very 
close to the value of KG,re-securitization the capital 
charge is nearly equal to the maximum risk weight of 1,250 percent.
    To apply the securitization framework to a single tranched exposure 
that has been re-tranched, such as some Re-REMICs, an FDIC-supervised 
institution must apply the SSFA or gross-up approach to the retranched 
exposure as if it were still part of the structure of the original 
securitization transaction. Therefore, an FDIC-supervised institution 
implementing the SSFA or the gross-up approach would calculate 
parameters for those approaches that would treat the retranched 
exposure as if it were still embedded in the original structure of the 
transaction while still recognizing any added credit enhancement 
provided by retranching. For example, under the SSFA an FDIC-supervised 
institution would calculate the approach using hypothetical attachment 
and detachment points that reflect the seniority of the retranched 
exposure within the original deal structure, as well as any additional 
credit enhancement provided by retranching of the exposure. Parameters 
that depend on pool-level characteristics, such as the W parameter 
under the SSFA, would be calculated based on the characteristics of the 
total underlying exposures of the initial securitization transaction, 
not just the retranched exposure.
5. Gross-Up Approach
    Under the interim final rule, consistent with the proposal, FDIC-
supervised institutions that are not subject to the market risk rule 
may assign risk-weighted asset amounts to securitization exposures by 
implementing the gross-up approach described in section 43 of the 
interim final rule, which is similar to an existing approach provided 
under the general risk-based capital rules. If the FDIC-supervised 
institution chooses to apply the gross-up approach, it is required to 
apply this approach to all of its securitization exposures, except as 
otherwise provided for certain securitization exposures under sections 
324.44 and 324.45 of the interim final rule.
    The gross-up approach assigns risk-weighted asset amounts based on 
the full amount of the credit-enhanced assets for which the FDIC-
supervised institution directly or indirectly assumes credit risk. To 
calculate risk-weighted assets under the gross-up

[[Page 55440]]

approach, an FDIC-supervised institution determines four inputs: the 
pro rata share, the exposure amount, the enhanced amount, and the 
applicable risk weight. The pro rata share is the par value of the 
FDIC-supervised institution's exposure as a percentage of the par value 
of the tranche in which the securitization exposure resides. The 
enhanced amount is the par value of all the tranches that are more 
senior to the tranche in which the exposure resides. The applicable 
risk weight is the weighted-average risk weight of the underlying 
exposures in the securitization as calculated under the standardized 
approach.
    Under the gross-up approach, an FDIC-supervised institution is 
required to calculate the credit equivalent amount, which equals the 
sum of (1) the exposure of the FDIC-supervised institution's 
securitization exposure and (2) the pro rata share multiplied by the 
enhanced amount. To calculate risk-weighted assets for a securitization 
exposure under the gross-up approach, an FDIC-supervised institution is 
required to assign the applicable risk weight to the gross-up credit 
equivalent amount. As noted above, in all cases, the minimum risk 
weight for securitization exposures is 20 percent.
    As discussed above, the FDIC recognizes that different capital 
requirements are likely to result from the application of the gross-up 
approach as compared to the SSFA. However, the FDIC believes allowing 
smaller, less complex FDIC-supervised institutions not subject to the 
market risk rule to use the gross up approach (consistent with past 
practice under the existing general risk-based capital rules) is 
appropriate and should reduce operational burden for many FDIC-
supervised institutions.
6. Alternative Treatments for Certain Types of Securitization Exposures
    Under the proposal, a banking organization generally would assign a 
1,250 percent risk weight to any securitization exposure to which the 
banking organization does not apply the SSFA or the gross-up approach. 
However, the proposal provided alternative treatments for certain types 
of securitization exposures described below, provided that the banking 
organization knows the composition of the underlying exposures at all 
times.
a. Eligible Asset-Backed Commercial Paper Liquidity Facilities
    Under the interim final rule, consistent with the proposal and the 
Basel capital framework, an FDIC-supervised institution is permitted to 
determine the risk-weighted asset amount of an eligible ABCP liquidity 
facility by multiplying the exposure amount by the highest risk weight 
applicable to any of the individual underlying exposures covered by the 
facility.
b. A Securitization Exposure in a Second-Loss Position or Better to an 
Asset-Backed Commercial Paper Program
    Under the interim final rule and consistent with the proposal, an 
FDIC-supervised institution may determine the risk-weighted asset 
amount of a securitization exposure that is in a second-loss position 
or better to an ABCP program by multiplying the exposure amount by the 
higher of 100 percent and the highest risk weight applicable to any of 
the individual underlying exposures of the ABCP program, provided the 
exposure meets the following criteria:
    (1) The exposure is not an eligible ABCP liquidity facility;
    (2) The exposure is economically in a second-loss position or 
better, and the first-loss position provides significant credit 
protection to the second-loss position;
    (3) The exposure qualifies as investment grade; and
    (4) The FDIC-supervised institution holding the exposure does not 
retain or provide protection for the first-loss position.
    The FDIC believes that this approach, which is consistent with the 
Basel capital framework, appropriately and conservatively assesses the 
credit risk of non-first-loss exposures to ABCP programs. The FDIC is 
adopting this aspect of the proposal, without change, for purposes of 
the interim final rule.
7. Credit Risk Mitigation for Securitization Exposures
    Under the interim final rule, and consistent with the proposal, the 
treatment of credit risk mitigation for securitization exposures would 
differ slightly from the treatment for other exposures. To recognize 
the risk mitigating effects of financial collateral or an eligible 
guarantee or an eligible credit derivative from an eligible guarantor, 
an FDIC-supervised institution that purchases credit protection uses 
the approaches for collateralized transactions under section 324.37 of 
the interim final rule or the substitution treatment for guarantees and 
credit derivatives described in section 3324.6 of the interim final 
rule. In cases of maturity or currency mismatches, or, if applicable, 
lack of a restructuring event trigger, the FDIC-supervised institution 
must make any applicable adjustments to the protection amount of an 
eligible guarantee or credit derivative as required by section 324.36 
for any hedged securitization exposure. In addition, for synthetic 
securitizations, when an eligible guarantee or eligible credit 
derivative covers multiple hedged exposures that have different 
residual maturities, the FDIC-supervised institution is required to use 
the longest residual maturity of any of the hedged exposures as the 
residual maturity of all the hedged exposures. In the interim final 
rule, the FDIC is clarifying that an FDIC-supervised institution is not 
required to compute a counterparty credit risk capital requirement for 
the credit derivative provided that this treatment is applied 
consistently for all of its OTC credit derivatives. However, an FDIC-
supervised institution must calculate counterparty credit risk if the 
OTC credit derivative is a covered position under the market risk rule.
    Consistent with the proposal, an FDIC-supervised institution that 
purchases an OTC credit derivative (other than an n\th\-to-default 
credit derivative) that is recognized as a credit risk mitigant for a 
securitization exposure that is not a covered position under the market 
risk rule is not required to compute a separate counterparty credit 
risk capital requirement provided that the FDIC-supervised institution 
does so consistently for all such credit derivatives. The FDIC-
supervised institution must either include all or exclude all such 
credit derivatives that are subject to a qualifying master netting 
agreement from any measure used to determine counterparty credit risk 
exposure to all relevant counterparties for risk-based capital 
purposes. If an FDIC-supervised institution cannot, or chooses not to, 
recognize a credit derivative that is a securitization exposure as a 
credit risk mitigant, the FDIC-supervised institution must determine 
the exposure amount of the credit derivative under the treatment for 
OTC derivatives in section 34. In the interim final rule, the FDIC is 
clarifying that if the FDIC-supervised institution purchases the credit 
protection from a counterparty that is a securitization, the FDIC-
supervised institution must determine the risk weight for counterparty 
credit risk according to the securitization framework. If the FDIC-
supervised institution purchases credit protection from a counterparty 
that is not a securitization, the FDIC-supervised institution must 
determine the risk weight for counterparty credit risk according to 
general risk weights

[[Page 55441]]

under section 32. An FDIC-supervised institution that provides 
protection in the form of a guarantee or credit derivative (other than 
an n\th\-to-default credit derivative) that covers the full amount or a 
pro rata share of a securitization exposure's principal and interest 
must risk weight the guarantee or credit derivative as if it holds the 
portion of the reference exposure covered by the guarantee or credit 
derivative.
8. N\th\-to-Default Credit Derivatives
    Under the interim final rule and consistent with the proposal, the 
capital requirement for credit protection provided through an n\th\-to-
default credit derivative is determined either by using the SSFA, or 
applying a 1,250 percent risk weight.
    An FDIC-supervised institution providing credit protection must 
determine its exposure to an n\th\-to-default credit derivative as the 
largest notional amount of all the underlying exposures. When applying 
the SSFA, the attachment point (parameter A) is the ratio of the sum of 
the notional amounts of all underlying exposures that are subordinated 
to the FDIC-supervised institution's exposure to the total notional 
amount of all underlying exposures. In the case of a first-to-default 
credit derivative, there are no underlying exposures that are 
subordinated to the FDIC-supervised institution's exposure. In the case 
of a second-or-subsequent-to default credit derivative, the smallest 
(n-1) underlying exposure(s) are subordinated to the FDIC-supervised 
institution's exposure.
    Under the SSFA, the detachment point (parameter D) is the sum of 
the attachment point and the ratio of the notional amount of the FDIC-
supervised institution's exposure to the total notional amount of the 
underlying exposures. An FDIC-supervised institution that does not use 
the SSFA to calculate a risk weight for an n\th\-to-default credit 
derivative would assign a risk weight of 1,250 percent to the exposure.
    For protection purchased through a first-to-default derivative, an 
FDIC-supervised institution that obtains credit protection on a group 
of underlying exposures through a first-to-default credit derivative 
that meets the rules of recognition for guarantees and credit 
derivatives under section 324.36(b) of the interim final rule must 
determine its risk-based capital requirement for the underlying 
exposures as if the FDIC-supervised institution synthetically 
securitized the underlying exposure with the smallest risk-weighted 
asset amount and had obtained no credit risk mitigant on the other 
underlying exposures. An FDIC-supervised institution must calculate a 
risk-based capital requirement for counterparty credit risk according 
to section 324.34 of the interim final rule for a first-to-default 
credit derivative that does not meet the rules of recognition of 
section 324.36(b).
    For second-or-subsequent-to-default credit derivatives, an FDIC-
supervised institution that obtains credit protection on a group of 
underlying exposures through a n\th\-to-default credit derivative that 
meets the rules of recognition of section 324.36(b) of the interim 
final rule (other than a first-to-default credit derivative) may 
recognize the credit risk mitigation benefits of the derivative only if 
the FDIC-supervised institution also has obtained credit protection on 
the same underlying exposures in the form of first-through-(n-1)-to-
default credit derivatives; or if n-1 of the underlying exposures have 
already defaulted. If an FDIC-supervised institution satisfies these 
requirements, the FDIC-supervised institution determines its risk-based 
capital requirement for the underlying exposures as if the FDIC-
supervised institution had only synthetically securitized the 
underlying exposure with the n\th\ smallest risk-weighted asset amount 
and had obtained no credit risk mitigant on the other underlying 
exposures. For a n\th\-to-default credit derivative that does not meet 
the rules of recognition of section 324.36(b), an FDIC-supervised 
institution must calculate a risk-based capital requirement for 
counterparty credit risk according to the treatment of OTC derivatives 
under section 324.34 of the interim final rule. The FDIC is adopting 
this aspect of the proposal without change for purposes of the interim 
final rule.

IX. Equity Exposures

    The proposal significantly revised the general risk-based capital 
rules' treatment for equity exposures. To improve risk sensitivity, the 
interim final rule generally follows the same approach to equity 
exposures as the proposal, while providing clarification on investments 
in a separate account as detailed below. In particular, the interim 
final rule requires an FDIC-supervised institution to apply the SRWA 
for equity exposures that are not exposures to an investment fund and 
apply certain look-through approaches to assign risk-weighted asset 
amounts to equity exposures to an investment fund. These approaches are 
discussed in greater detail below.

A. Definition of Equity Exposure and Exposure Measurement

    The FDIC is adopting the proposed definition of equity exposures, 
without change, for purposes of the interim final rule.\159\ Under the 
interim final rule, an FDIC-supervised institution is required to 
determine the adjusted carrying value for each equity exposure based on 
the approaches described below. For the on-balance sheet component of 
an equity exposure, other than an equity exposure that is classified as 
AFS where the FDIC-supervised institution has made an AOCI opt-out 
election under section 324.22(b)(2) of the interim final rule, the 
adjusted carrying value is an FDIC-supervised institution's carrying 
value of the exposure. For the on-balance sheet component of an equity 
exposure that is classified as AFS where the FDIC-supervised 
institution has made an AOCI opt-out election under section 
324.22(b)(2) of the interim final rule, the adjusted carrying value of 
the exposure is the FDIC-supervised institution's carrying value of the 
exposure less any net gains on the exposure that are reflected in the 
carrying value but excluded from the FDIC-supervised institution's 
regulatory capital components. For a commitment to acquire an equity 
exposure that is unconditional, the adjusted carrying value is the 
effective notional principal amount of the exposure multiplied by a 100 
percent conversion factor. For a commitment to acquire an equity 
exposure that is conditional, the adjusted carrying value is the 
effective notional principal amount of the commitment multiplied by (1) 
a 20 percent conversion factor, for a commitment with an original 
maturity of one year or less or (2) a 50 percent conversion factor, for 
a commitment with an original maturity of over one year. For the off-
balance sheet component of an equity exposure that is not an equity 
commitment, the adjusted carrying value is the effective notional 
principal amount of the exposure, the size of which is equivalent to a 
hypothetical on-balance sheet position in the underlying equity 
instrument that would evidence the same change in fair value (measured 
in dollars) for a given small change in the price of the underlying 
equity instrument, minus the adjusted carrying value of the on-

[[Page 55442]]

balance sheet component of the exposure.
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    \159\ See the definition of ``equity exposure'' in section 324.2 
of the interim final rule. However, as described above in section 
VIII.A of this preamble, the FDIC has adjusted the definition of 
``exposure amount'' in line with certain requirements necessary for 
FDIC-supervised institutions that make an AOCI opt-out election.
---------------------------------------------------------------------------

    The FDIC included the concept of the effective notional principal 
amount of the off-balance sheet portion of an equity exposure to 
provide a uniform method for FDIC-supervised institutions to measure 
the on-balance sheet equivalent of an off-balance sheet exposure. For 
example, if the value of a derivative contract referencing the common 
stock of company X changes the same amount as the value of 150 shares 
of common stock of company X, for a small change (for example, 1.0 
percent) in the value of the common stock of company X, the effective 
notional principal amount of the derivative contract is the current 
value of 150 shares of common stock of company X, regardless of the 
number of shares the derivative contract references. The adjusted 
carrying value of the off-balance sheet component of the derivative is 
the current value of 150 shares of common stock of company X minus the 
adjusted carrying value of any on-balance sheet amount associated with 
the derivative.

B. Equity Exposure Risk Weights

    The proposal set forth a SRWA for equity exposures, which the FDIC 
has adopted without change in the interim final rule. Therefore, under 
the interim final rule, an FDIC-supervised institution determines the 
risk-weighted asset amount for each equity exposure, other than an 
equity exposure to an investment fund, by multiplying the adjusted 
carrying value of the equity exposure, or the effective portion and 
ineffective portion of a hedge pair as described below, by the lowest 
applicable risk weight in section 324.52 of the interim final rule. An 
FDIC-supervised institution determines the risk-weighted asset amount 
for an equity exposure to an investment fund under section 324.53 of 
the interim final rule. An FDIC-supervised institution sums risk-
weighted asset amounts for all of its equity exposures to calculate its 
aggregate risk-weighted asset amount for its equity exposures.
    Some commenters asserted that mutual banking organizations, which 
are more highly exposed to equity exposures than traditional depository 
institutions, should be permitted to assign a 100 percent risk weight 
to their equity exposures rather than the proposed 300 percent risk 
weight for publicly-traded equity exposures or 400 percent risk weight 
for non-publicly traded equity exposures. Some commenters also argued 
that a banking organization's equity investment in a banker's bank 
should get special treatment, for instance, exemption from the 400 
percent risk weight or deduction as an investment in the capital of an 
unconsolidated financial institution.
    The FDIC has decided to retain the proposed risk weights in the 
interim final rule because it does not believe there is sufficient 
justification for a lower risk weight solely based on the nature of the 
institution (for example, mutual banking organization) holding the 
exposure. In addition, the FDIC believes that a 100 percent risk weight 
does not reflect the inherent risk for equity exposures that fall under 
the proposed 300 percent and 400 percent risk-weight categories or that 
are subject to deduction as investments in unconsolidated financial 
institutions. The FDIC has agreed to finalize the SRWA risk weights as 
proposed, which are summarized below in Table 24.

                  Table 24--Simple Risk-Weight Approach
------------------------------------------------------------------------
Risk weight  (in percent)                 Equity exposure
------------------------------------------------------------------------
0........................  An equity exposure to a sovereign, the Bank
                            for International Settlements, the European
                            Central Bank, the European Commission, the
                            International Monetary Fund, an MDB, and any
                            other entity whose credit exposures receive
                            a zero percent risk weight under section
                            324.32 of the interim final rule.
20.......................  An equity exposure to a PSE, Federal Home
                            Loan Bank or Farmer Mac.
100......................   Community development equity
                            exposures.\160\
                            The effective portion of a hedge
                            pair.
                            Non-significant equity exposures to
                            the extent that the aggregate adjusted
                            carrying value of the exposures does not
                            exceed 10 percent of tier 1 capital plus
                            tier 2 capital.
250......................  A significant investment in the capital of an
                            unconsolidated financial institution in the
                            form of common stock that is not deducted
                            under section 324.22 of the interim final
                            rule.
300......................  A publicly-traded equity exposure (other than
                            an equity exposure that receives a 600
                            percent risk weight and including the
                            ineffective portion of a hedge pair).
400......................  An equity exposure that is not publicly-
                            traded (other than an equity exposure that
                            receives a 600 percent risk weight).
600......................  An equity exposure to an investment firm that
                            (i) would meet the definition of a
                            traditional securitization were it not for
                            the FDIC's application of paragraph (8) of
                            that definition and (ii) has greater than
                            immaterial leverage.
------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \160\ The interim final rule generally defines these exposures 
as exposures that qualify as community development investments under 
12 U.S.C. 24 (Eleventh), excluding equity exposures to an 
unconsolidated small business investment company and equity 
exposures held through a consolidated small business investment 
company described in section 302 of the Small Business Investment 
Act of 1958 (15 U.S.C. 682). Under the proposal, a savings 
association's community development equity exposure investments was 
defined to mean an equity exposure that are designed primarily to 
promote community welfare, including the welfare of low- and 
moderate-income communities or families, such as by providing 
services or jobs, and excluding equity exposures to an 
unconsolidated small business investment company and equity 
exposures held through a consolidated small business investment 
company described in section 302 of the Small Business Investment 
Act of 1958 (15 U.S.C. 682). The FDIC has determined that a separate 
definition for a savings association's community development equity 
exposure is not necessary and, therefore, the interim final rule 
applies one definition of community development equity exposure to 
all types of covered FDIC-supervised institutions.
---------------------------------------------------------------------------

    Consistent with the proposal, the interim final rule defines 
publicly traded as traded on: (1) any exchange registered with the SEC 
as a national securities exchange under section 6 of the Securities 
Exchange Act of 1934 (15 U.S.C. 78f); or (2) any non-U.S.-based 
securities exchange that is registered with, or approved by, a national 
securities regulatory authority and that provides a liquid, two-way 
market for the instrument in question. A two-way market refers to a 
market where there are independent bona fide offers to buy and sell so 
that a price reasonably related to the last sales price or current bona 
fide competitive bid and offer quotations can be determined within one 
day and settled at that price within a relatively short time frame 
conforming to trade custom.

[[Page 55443]]

C. Non-Significant Equity Exposures

    Under the interim final rule, and as proposed, an FDIC-supervised 
institution may apply a 100 percent risk weight to certain equity 
exposures deemed non-significant. Non-significant equity exposures 
means an equity exposure to the extent that the aggregate adjusted 
carrying value of the exposures does not exceed 10 percent of the FDIC-
supervised institution's total capital.\161\ To compute the aggregate 
adjusted carrying value of an FDIC-supervised institution's equity 
exposures for determining their non-significance, the FDIC-supervised 
institution may exclude (1) equity exposures that receive less than a 
300 percent risk weight under the SRWA (other than equity exposures 
determined to be non-significant); (2) the equity exposure in a hedge 
pair with the smaller adjusted carrying value; and (3) a proportion of 
each equity exposure to an investment fund equal to the proportion of 
the assets of the investment fund that are not equity exposures. If an 
FDIC-supervised institution does not know the actual holdings of the 
investment fund, the FDIC-supervised institution may calculate the 
proportion of the assets of the fund that are not equity exposures 
based on the terms of the prospectus, partnership agreement, or similar 
contract that defines the fund's permissible investments. If the sum of 
the investment limits for all exposure classes within the fund exceeds 
100 percent, the FDIC-supervised institution must assume that the 
investment fund invests to the maximum extent possible in equity 
exposures.
---------------------------------------------------------------------------

    \161\ The definition excludes exposures to an investment firm 
that (1) meet the definition of traditional securitization were it 
not for the primary Federal regulator's application of paragraph (8) 
of the definition of a traditional securitization and (2) has 
greater than immaterial leverage.
---------------------------------------------------------------------------

    To determine which of an FDIC-supervised institution's equity 
exposures qualify for a 100 percent risk weight based on non-
significance, the FDIC-supervised institution first must include equity 
exposures to unconsolidated small-business investment companies, or 
those held through consolidated small-business investment companies 
described in section 302 of the Small Business Investment Act of 1958. 
Next, it must include publicly-traded equity exposures (including those 
held indirectly through investment funds), and then it must include 
non-publicly-traded equity exposures (including those held indirectly 
through investment funds).\162\
---------------------------------------------------------------------------

    \162\ See 15 U.S.C. 682.
---------------------------------------------------------------------------

    One commenter proposed that certain exposures, including those to 
small-business investment companies, should not be subject to the 10 
percent capital limitation for non-significant equity exposures and 
should receive a 100 percent risk weight, consistent with the treatment 
of community development investments. The FDIC reflected upon this 
comment and determined to retain the proposed 10 percent limit on an 
FDIC-supervised institution's total capital in the interim final rule 
given the inherent credit and concentration risks associated with these 
exposures.

D. Hedged Transactions

    Under the proposal, to determine risk-weighted assets under the 
SRWA, a banking organization could identify hedge pairs, which would be 
defined as two equity exposures that form an effective hedge, as long 
as each equity exposure is publicly traded or has a return that is 
primarily based on a publicly traded equity exposure. A banking 
organization would risk-weight only the effective and ineffective 
portions of a hedge pair rather than the entire adjusted carrying value 
of each exposure that makes up the pair. A few commenters requested 
that non-publicly traded equities be recognized in a hedged transaction 
under the rule. Equities that are not publicly traded are subject to 
considerable valuation uncertainty due to a lack of transparency and 
are generally far less liquid than publicly traded equities. The FDIC 
has therefore determined that given the potential increased risk 
associated with equities that are not publicly traded, recognition of 
these instruments as hedges under the rule is not appropriate. One 
commenter indicated that the test of hedge effectiveness used in the 
calculation of publicly traded equities should be more risk sensitive 
in evaluating all components of the transaction to better determine the 
appropriate risk weight. The examples the commenter highlighted 
indicated dissatisfaction with the assignment of a 100 percent risk 
weight to the effective portion of all hedge pairs. As described 
further below, the proposed rule contained three methodologies for 
identifying the measure of effectiveness of an equity hedge 
relationship, methodologies which recognize less-than-perfect hedges. 
The proposal assigns a 100 percent risk weight to the effective portion 
of a hedge pair because some hedge pairs involve residual risks. In 
developing the standardized approach the agencies sought to balance 
complexity and risk sensitivity, which limits the degree of granularity 
in hedge recognition. On balance, the FDIC believes that it is more 
reflective of an FDIC-supervised institutions risk profile to recognize 
a broader range of hedge pairs and assign all hedge pairs a 100 percent 
risk weight than to recognize only perfect hedges and assign a lower 
risk weight. Accordingly, the FDIC is finalizing the proposed treatment 
without change.
    Under the interim final rule, two equity exposures form an 
effective hedge if: the exposures either have the same remaining 
maturity or each has a remaining maturity of at least three months; the 
hedge relationship is formally documented in a prospective manner (that 
is, before the FDIC-supervised institution acquires at least one of the 
equity exposures); the documentation specifies the measure of 
effectiveness (E) the FDIC-supervised institution uses for the hedge 
relationship throughout the life of the transaction; and the hedge 
relationship has an E greater than or equal to 0.8. An FDIC-supervised 
institution measures E at least quarterly and uses one of three 
measures of E described in the next section: the dollar-offset method, 
the variability-reduction method, or the regression method.
    It is possible that only part of an FDIC-supervised institution's 
exposure to a particular equity instrument is part of a hedge pair. For 
example, assume an FDIC-supervised institution has equity exposure A 
with a $300 adjusted carrying value and chooses to hedge a portion of 
that exposure with equity exposure B with an adjusted carrying value of 
$100. Also assume that the combination of equity exposure B and $100 of 
the adjusted carrying value of equity exposure A form an effective 
hedge with an E of 0.8. In this situation, the FDIC-supervised 
institution treats $100 of equity exposure A and $100 of equity 
exposure B as a hedge pair, and the remaining $200 of its equity 
exposure A as a separate, stand-alone equity position. The effective 
portion of a hedge pair is calculated as E multiplied by the greater of 
the adjusted carrying values of the equity exposures forming the hedge 
pair. The ineffective portion of a hedge pair is calculated as (1-E) 
multiplied by the greater of the adjusted carrying values of the equity 
exposures forming the hedge pair. In the above example, the effective 
portion of the hedge pair is 0.8 x $100 = $80, and the ineffective 
portion of the hedge pair is (1-0.8) x $100 = $20.

E. Measures of Hedge Effectiveness

    As stated above, an FDIC-supervised institution could determine 
effectiveness using any one of three

[[Page 55444]]

methods: the dollar-offset method, the variability-reduction method, or 
the regression method. Under the dollar-offset method, an FDIC-
supervised institution determines the ratio of the cumulative sum of 
the changes in value of one equity exposure to the cumulative sum of 
the changes in value of the other equity exposure, termed the ratio of 
value change (RVC). If the changes in the values of the two exposures 
perfectly offset each other, the RVC is -1. If RVC is positive, 
implying that the values of the two equity exposures move in the same 
direction, the hedge is not effective and E equals 0. If RVC is 
negative and greater than or equal to -1 (that is, between zero and -
1), then E equals the absolute value of RVC. If RVC is negative and 
less than -1, then E equals 2 plus RVC.
    The variability-reduction method of measuring effectiveness 
compares changes in the value of the combined position of the two 
equity exposures in the hedge pair (labeled X in the equation below) to 
changes in the value of one exposure as though that one exposure were 
not hedged (labeled A). This measure of E expresses the time-series 
variability in X as a proportion of the variability of A. As the 
variability described by the numerator becomes small relative to the 
variability described by the denominator, the measure of effectiveness 
improves, but is bounded from above by a value of one. E is computed 
as:
[GRAPHIC] [TIFF OMITTED] TR10SE13.008

    The value of t ranges from zero to T, where T is the length of the 
observation period for the values of A and B, and is comprised of 
shorter values each labeled t.
    The regression method of measuring effectiveness is based on a 
regression in which the change in value of one exposure in a hedge pair 
is the dependent variable and the change in value of the other exposure 
in the hedge pair is the independent variable. E equals the coefficient 
of determination of this regression, which is the proportion of the 
variation in the dependent variable explained by variation in the 
independent variable. However, if the estimated regression coefficient 
is positive, then the value of E is zero. Accordingly, E is higher when 
the relationship between the values of the two exposures is closer.

F. Equity Exposures to Investment Funds

    Under the general risk-based capital rules, exposures to 
investments funds are captured through one of two methods. These 
methods are similar to the alternative modified look-through approach 
and the simple modified look-through approach described below. The 
proposal included an additional option, referred to in the NPR as the 
full look-through approach. The agencies proposed this separate 
treatment for equity exposures to an investment fund to ensure that the 
regulatory capital treatment for these exposures is commensurate with 
the risk. Thus, the risk-based capital requirement for equity exposures 
to investment funds that hold only low-risk assets would be relatively 
low, whereas high-risk exposures held through investment funds would be 
subject to a higher capital requirement. The interim final rule 
implements these three approaches as proposed and clarifies that the 
risk-weight for any equity exposure to an investment fund must be no 
less than 20 percent.
    In addition, the interim final rule clarifies, generally consistent 
with prior agency guidance, that an FDIC-supervised institution must 
treat an investment in a separate account, such as bank-owned life 
insurance, as if it were an equity exposure to an investment fund.\163\ 
An FDIC-supervised institution must use one of the look-through 
approaches provided in section 53 and, if applicable, section 154 of 
the interim final rule to determine the risk-weighted asset amount for 
such investments. An FDIC-supervised institution that purchases stable 
value protection on its investment in a separate account must treat the 
portion of the carrying value of its investment in the separate account 
attributable to the stable value protection as an exposure to the 
provider of the protection and the remaining portion as an equity 
exposure to an investment fund. Stable value protection means a 
contract where the provider of the contract pays to the policy owner of 
the separate account an amount equal to the shortfall between the fair 
value and cost basis of the separate account when the policy owner of 
the separate account surrenders the policy. It also includes a contract 
where the provider of the contract pays to the beneficiary an amount 
equal to the shortfall between the fair value and book value of a 
specified portfolio of assets.
---------------------------------------------------------------------------

    \163\ Interagency Statement on the Purchase and Risk Management 
of Life Insurance, pp. 19-20, https://www.federalreserve.gov/boarddocs/srletters/2004/SR0419a1.pdf.
---------------------------------------------------------------------------

    An FDIC-supervised institution that provides stable value 
protection, such as through a stable value wrap that has provisions and 
conditions that minimize the wrap's exposure to credit risk of the 
underlying assets in the fund, must treat the exposure as if it were an 
equity derivative on an investment fund and determine the adjusted 
carrying value of the exposure as the sum of the adjusted carrying 
values of any on-balance sheet asset component determined according to 
section 324.51(b)(1), and the off-balance sheet component determined 
according to section 324.51(b)(3). That is, the adjusted carrying value 
is the effective notional principal amount of the exposure, the size of 
which is equivalent to a hypothetical on-balance sheet position in the 
underlying equity instrument that would evidence the

[[Page 55445]]

same change in fair value (measured in dollars) given a small change in 
the price of the underlying equity instrument without subtracting the 
adjusted carrying value of the on-balance sheet component of the 
exposure as calculated under the same paragraph. Risk-weighted assets 
for such an exposure is determined by applying one of the three look-
through approaches as provided in section 324.53 and, if applicable, 
section 324.154 of the interim final rule.
    As discussed further below, under the interim final rule, an FDIC-
supervised institution determines the risk-weighted asset amount for 
equity exposures to investment funds using one of three approaches: the 
full look-through approach, the simple modified look-through approach, 
or the alternative modified look-through approach, unless the equity 
exposure to an investment fund is a community development equity 
exposure. The risk-weighted asset amount for such community development 
equity exposures is the exposure's adjusted carrying value. If an FDIC-
supervised institution does not use the full look-through approach, and 
an equity exposure to an investment fund is part of a hedge pair, an 
FDIC-supervised institution must use the ineffective portion of the 
hedge pair as the adjusted carrying value for the equity exposure to 
the investment fund. The risk-weighted asset amount of the effective 
portion of the hedge pair is equal to its adjusted carrying value. An 
FDIC-supervised institution could choose which approach to apply for 
each equity exposure to an investment fund.
1. Full Look-Through Approach
    An FDIC-supervised institution may use the full look-through 
approach only if the FDIC-supervised institution is able to calculate a 
risk-weighted asset amount for each of the exposures held by the 
investment fund. Under the interim final rule, an FDIC-supervised 
institution using the full look-through approach is required to 
calculate the risk-weighted asset amount for its proportionate 
ownership share of each of the exposures held by the investment fund 
(as calculated under subpart D of the interim final rule) as if the 
proportionate ownership share of the adjusted carrying value of each 
exposures were held directly by the FDIC-supervised institution. The 
FDIC-supervised institution's risk-weighted asset amount for the 
exposure to the fund is equal to (1) the aggregate risk-weighted asset 
amount of the exposures held by the fund as if they were held directly 
by the FDIC-supervised institution multiplied by (2) the FDIC-
supervised institution's proportional ownership share of the fund.
2. Simple Modified Look-Through Approach
    Under the simple modified look-through approach, an FDIC-supervised 
institution sets the risk-weighted asset amount for its equity exposure 
to an investment fund equal to the adjusted carrying value of the 
equity exposure multiplied by the highest applicable risk weight under 
subpart D of the interim final rule to any exposure the fund is 
permitted to hold under the prospectus, partnership agreement, or 
similar agreement that defines the fund's permissible investments. The 
FDIC-supervised institution may exclude derivative contracts held by 
the fund that are used for hedging, rather than for speculative 
purposes, and do not constitute a material portion of the fund's 
exposures.
3. Alternative Modified Look-Through Approach
    Under the alternative modified look-through approach, an FDIC-
supervised institution may assign the adjusted carrying value of an 
equity exposure to an investment fund on a pro rata basis to different 
risk weight categories under subpart D of the interim final rule based 
on the investment limits in the fund's prospectus, partnership 
agreement, or similar contract that defines the fund's permissible 
investments.
    The risk-weighted asset amount for the FDIC-supervised 
institution's equity exposure to the investment fund is equal to the 
sum of each portion of the adjusted carrying value assigned to an 
exposure type multiplied by the applicable risk weight. If the sum of 
the investment limits for all permissible investments within the fund 
exceeds 100 percent, the FDIC-supervised institution must assume that 
the fund invests to the maximum extent permitted under its investment 
limits in the exposure type with the highest applicable risk weight 
under subpart D and continues to make investments in the order of the 
exposure category with the next highest risk weight until the maximum 
total investment level is reached. If more than one exposure category 
applies to an exposure, the FDIC-supervised institution must use the 
highest applicable risk weight. An FDIC-supervised institution may 
exclude derivative contracts held by the fund that are used for 
hedging, rather than for speculative purposes, and do not constitute a 
material portion of the fund's exposures.
    Commenters expressed concerns regarding the application of the 
look-through approaches where an investment fund holds securitization 
exposures. Specifically, the commenters indicated a banking 
organization would be forced to apply a 1,250 percent risk weight to 
investment funds that hold securitization exposures if the banking 
organization does not have the information required to use one of the 
two applicable methods under subpart D to calculate the risk weight 
applicable to a securitization exposure: gross-up treatment or the 
SSFA. According to the commenters, such an outcome would be overly 
punitive and inconsistent with the generally diversified composition of 
investment funds. The FDIC acknowledges that an FDIC-supervised 
institution may have some difficulty obtaining all the information 
needed to use the gross-up treatment or SSFA, but believes that the 
proposed approach provides strong incentives for FDIC-supervised 
institutions to obtain such information. As a result, the FDIC is 
finalizing the treatment as proposed.

X. Market Discipline and Disclosure Requirements

A. Proposed Disclosure Requirements

    The FDIC has long supported meaningful public disclosure by FDIC-
supervised institutions with the objective of improving market 
discipline and encouraging sound risk-management practices. The BCBS 
introduced public disclosure requirements under Pillar 3 of Basel II, 
which is designed to complement the minimum capital requirements and 
the supervisory review process by encouraging market discipline through 
enhanced and meaningful public disclosure.\164\ The BCBS introduced 
additional disclosure requirements in Basel III, which, under the 
interim final rule, apply to banking organizations as discussed 
herein.\165\
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    \164\ The agencies incorporated the BCBS disclosure requirements 
into the advanced approaches rule in 2007. See 72 FR 69288, 69432 
(December 7, 2007).
    \165\ In June 2012, the BCBS adopted Pillar 3 disclosure 
requirements in a paper titled ``Composition of Capital Disclosure 
Requirements,'' available at https://www.bis.org/publ/bcbs221.pdf. 
The FDIC anticipates incorporating these disclosure requirements 
through a separate notice and comment period.
---------------------------------------------------------------------------

    The agencies received a limited number of comments on the proposed 
disclosure requirements. The commenters expressed some concern that the 
proposed requirements would be extended to apply to smaller banking 
organizations. As discussed further below, the agencies proposed the

[[Page 55446]]

disclosure requirements for banking organizations with $50 billion or 
more in assets and believe they are most appropriate for these 
companies. The FDIC believes that the proposed disclosure requirements 
strike the appropriate balance between the market benefits of 
disclosure and the additional burden to an FDIC-supervised institution 
that provides the disclosures, and therefore has adopted the 
requirements as proposed, with minor clarification with regard to 
timing of disclosures as discussed further below.
    The public disclosure requirements under section 62 of the interim 
final rule apply only to FDIC-supervised institutions with total 
consolidated assets of $50 billion or more that are not a consolidated 
subsidiary of a BHC, covered SLHC, or depository institution that is 
subject to these disclosure requirements or a subsidiary of a non-U.S. 
FDIC-supervised institution that is subject to comparable public 
disclosure requirements in its home jurisdiction or an advanced 
approaches FDIC-supervised institution making public disclosures 
pursuant to section 172 of the interim final rule. An advanced 
approaches FDIC-supervised institution that meets the $50 billion asset 
threshold, but that has not received approval from the FDIC to exit 
parallel run, must make the disclosures described in sections 324.62 
and 324.63 of the interim final rule. The FDIC notes that the asset 
threshold of $50 billion is consistent with the threshold established 
by section 165 of the Dodd-Frank Act relating to enhanced supervision 
and prudential standards for certain FDIC-supervised institutions.\166\ 
An FDIC-supervised institution may be able to fulfill some of the 
disclosure requirements by relying on similar disclosures made in 
accordance with federal securities law requirements. In addition, an 
FDIC-supervised institution may use information provided in regulatory 
reports to fulfill certain disclosure requirements. In these 
situations, an FDIC-supervised institution is required to explain any 
material differences between the accounting or other disclosures and 
the disclosures required under the interim final rule.
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    \166\ See section 165(a) of the Dodd-Frank Act (12 U.S.C. 
5365(a)). The Dodd-Frank Act provides that the Board may, upon the 
recommendation of the Financial Stability Oversight Council, 
increase the $50 billion asset threshold for the application of the 
resolution plan, concentration limit, and credit exposure report 
requirements. See 12 U.S.C. 5365(a)(2)(B).
---------------------------------------------------------------------------

    An FDIC-supervised institution's exposure to risks and the 
techniques that it uses to identify, measure, monitor, and control 
those risks are important factors that market participants consider in 
their assessment of the FDIC-supervised institution. Accordingly, an 
FDIC-supervised institution must have a formal disclosure policy 
approved by its board of directors that addresses the FDIC-supervised 
institution's approach for determining the disclosures it should make. 
The policy should address the associated internal controls, disclosure 
controls, and procedures. The board of directors and senior management 
should ensure the appropriate review of the disclosures and that 
effective internal controls, disclosure controls, and procedures are 
maintained. One or more senior officers of the FDIC-supervised 
institution must attest that the disclosures meet the requirements of 
this interim final rule.
    An FDIC-supervised institution must decide the relevant disclosures 
based on a materiality concept. Information is regarded as material for 
purposes of the disclosure requirements in the interim final rule if 
the information's omission or misstatement could change or influence 
the assessment or decision of a user relying on that information for 
the purpose of making investment decisions.

B. Frequency of Disclosures

    Consistent with the FDIC's longstanding requirements for robust 
quarterly disclosures in regulatory reports, and considering the 
potential for rapid changes in risk profiles, the interim final rule 
requires that an FDIC-supervised institution provide timely public 
disclosures after each calendar quarter. However, qualitative 
disclosures that provide a general summary of an FDIC-supervised 
institution's risk-management objectives and policies, reporting 
system, and definitions may be disclosed annually after the end of the 
fourth calendar quarter, provided any significant changes are disclosed 
in the interim. The FDIC acknowledges that the timing of disclosures 
under the federal banking laws may not always coincide with the timing 
of disclosures required under other federal laws, including disclosures 
required under the federal securities laws and their implementing 
regulations by the SEC. For calendar quarters that do not correspond to 
fiscal year end, the FDIC considers those disclosures that are made 
within 45 days of the end of the calendar quarter (or within 60 days 
for the limited purpose of the FDIC-supervised institution's first 
reporting period in which it is subject to the rule's disclosure 
requirements) as timely. In general, where an FDIC-supervised 
institution's fiscal year-end coincides with the end of a calendar 
quarter, the FDIC considers qualitative and quantitative disclosures to 
be timely if they are made no later than the applicable SEC disclosure 
deadline for the corresponding Form 10-K annual report. In cases where 
an institution's fiscal year end does not coincide with the end of a 
calendar quarter, the FDIC would consider the timeliness of disclosures 
on a case-by-case basis. In some cases, management may determine that a 
significant change has occurred, such that the most recent reported 
amounts do not reflect the FDIC-supervised institution's capital 
adequacy and risk profile. In those cases, an FDIC-supervised 
institution needs to disclose the general nature of these changes and 
briefly describe how they are likely to affect public disclosures going 
forward. An FDIC-supervised institution should make these interim 
disclosures as soon as practicable after the determination that a 
significant change has occurred.

C. Location of Disclosures and Audit Requirements

    The disclosures required under the interim final rule must be 
publicly available (for example, included on a public Web site) for 
each of the last three years or such shorter time period beginning when 
the FDIC-supervised institution became subject to the disclosure 
requirements. For example, an FDIC-supervised institution that begins 
to make public disclosures in the first quarter of 2015 must make all 
of its required disclosures publicly available until the first quarter 
of 2018, after which it must make its required disclosures for the 
previous three years publicly available. Except as discussed below, 
management has some discretion to determine the appropriate medium and 
location of the disclosure. Furthermore, an FDIC-supervised institution 
has flexibility in formatting its public disclosures.
    The FDIC encourages management to provide all of the required 
disclosures in one place on the entity's public Web site and the FDIC 
anticipates that the public Web site address would be reported in an 
FDIC-supervised institution's regulatory report. However, an FDIC-
supervised institution may provide the disclosures in more than one 
public financial report or other regulatory reports (for example, in 
Management's Discussion and Analysis included in SEC filings), provided 
that the FDIC-supervised institution publicly provides a summary table 
specifically indicating the location(s) of all such disclosures (for 
example, regulatory

[[Page 55447]]

report schedules, page numbers in annual reports). The FDIC expects 
that disclosures of common equity tier 1, tier 1, and total capital 
ratios would be tested by external auditors as part of the financial 
statement audit.

D. Proprietary and Confidential Information

    The FDIC believes that the disclosure requirements strike an 
appropriate balance between the need for meaningful disclosure and the 
protection of proprietary and confidential information.\167\ 
Accordingly, the FDIC believes that FDIC-supervised institutions would 
be able to provide all of these disclosures without revealing 
proprietary and confidential information. Only in rare circumstances 
might disclosure of certain items of information required by the 
interim final rule compel an FDIC-supervised institution to reveal 
confidential and proprietary information. In these unusual situations, 
if an FDIC-supervised institution believes that disclosure of specific 
commercial or financial information would compromise its position by 
making public information that is either proprietary or confidential in 
nature, the FDIC-supervised institution will not be required to 
disclose those specific items under the rule's periodic disclosure 
requirement. Instead, the FDIC-supervised institution must disclose 
more general information about the subject matter of the requirement, 
together with the fact that, and the reason why, the specific items of 
information have not been disclosed. This provision applies only to 
those disclosures included in this interim final rule and does not 
apply to disclosure requirements imposed by accounting standards, other 
regulatory agencies, or under other requirements of the FDIC.
---------------------------------------------------------------------------

    \167\ Proprietary information encompasses information that, if 
shared with competitors, would render an FDIC-supervised 
institution's investment in these products/systems less valuable, 
and, hence, could undermine its competitive position. Information 
about customers is often confidential, in that it is provided under 
the terms of a legal agreement or counterparty relationship.
---------------------------------------------------------------------------

E. Specific Public Disclosure Requirements

    The public disclosure requirements are designed to provide 
important information to market participants on the scope of 
application, capital, risk exposures, risk assessment processes, and, 
thus, the capital adequacy of the institution. The FDIC notes that the 
substantive content of the tables is the focus of the disclosure 
requirements, not the tables themselves. The table numbers below refer 
to the table numbers in section 63 of the interim final rule. An FDIC-
supervised institution must make the disclosures described in Tables 1 
through 10.\168\
---------------------------------------------------------------------------

    \168\ Other public disclosure requirements would continue to 
apply, such as federal securities law, and regulatory reporting 
requirements for FDIC-supervised institutions.
---------------------------------------------------------------------------

    Table 1 disclosures, ``Scope of Application,'' name the top 
corporate entity in the group to which subpart D of the interim final 
rule applies and include a brief description of the differences in the 
basis for consolidating entities for accounting and regulatory 
purposes, as well as a description of any restrictions, or other major 
impediments, on transfer of funds or total capital within the group. 
These disclosures provide the basic context underlying regulatory 
capital calculations.
    Table 2 disclosures, ``Capital Structure,'' provide summary 
information on the terms and conditions of the main features of 
regulatory capital instruments, which allow for an evaluation of the 
quality of the capital available to absorb losses within an FDIC-
supervised institution. An FDIC-supervised institution also must 
disclose the total amount of common equity tier 1, tier 1 and total 
capital, with separate disclosures for deductions and adjustments to 
capital. The FDIC expects that many of these disclosure requirements 
would be captured in revised regulatory reports.
    Table 3 disclosures, ``Capital Adequacy,'' provide information on 
an FDIC-supervised institution's approach for categorizing and risk 
weighting its exposures, as well as the amount of total risk-weighted 
assets. The Table also includes common equity tier 1, and tier 1 and 
total risk-based capital ratios for the top consolidated group, and for 
each depository institution subsidiary.
    Table 4 disclosures, ``Capital Conservation Buffer,'' require an 
FDIC-supervised institution to disclose the capital conservation 
buffer, the eligible retained income and any limitations on capital 
distributions and certain discretionary bonus payments, as applicable.
    Disclosures in Tables 5, ``Credit Risk: General Disclosures,'' 6, 
``General Disclosure for Counterparty Credit Risk-Related Exposures,'' 
and 7, ``Credit Risk Mitigation,'' relate to credit risk, counterparty 
credit risk and credit risk mitigation, respectively, and provide 
market participants with insight into different types and 
concentrations of credit risk to which an FDIC-supervised institution 
is exposed and the techniques it uses to measure, monitor, and mitigate 
those risks. These disclosures are intended to enable market 
participants to assess the credit risk exposures of the FDIC-supervised 
institution without revealing proprietary information.
    Table 8 disclosures, ``Securitization,'' provide information to 
market participants on the amount of credit risk transferred and 
retained by an FDIC-supervised institution through securitization 
transactions, the types of products securitized by the organization, 
the risks inherent in the organization's securitized assets, the 
organization's policies regarding credit risk mitigation, and the names 
of any entities that provide external credit assessments of a 
securitization. These disclosures provide a better understanding of how 
securitization transactions impact the credit risk of an FDIC-
supervised institution. For purposes of these disclosures, ``exposures 
securitized'' include underlying exposures transferred into a 
securitization by an FDIC-supervised institution, whether originated by 
the FDIC-supervised institution or purchased from third parties, and 
third-party exposures included in sponsored programs. Securitization 
transactions in which the originating FDIC-supervised institution does 
not retain any securitization exposure are shown separately and are 
only reported for the year of inception of the transaction.
    Table 9 disclosures, ``Equities Not Subject to Subpart F of this 
Part,'' provide market participants with an understanding of the types 
of equity securities held by the FDIC-supervised institution and how 
they are valued. These disclosures also provide information on the 
capital allocated to different equity products and the amount of 
unrealized gains and losses.
    Table 10 disclosures, ``Interest Rate Risk for Non-trading 
Activities,'' require an FDIC-supervised institution to provide certain 
quantitative and qualitative disclosures regarding the FDIC-supervised 
institution's management of interest rate risks.

XI. Risk-Weighted Assets--Modifications to the Advanced Approaches

    In the Advanced Approaches NPR, the agencies proposed revisions to 
the advanced approaches rule to incorporate certain aspects of Basel 
III, as well as the requirements introduced by the BCBS in the 2009

[[Page 55448]]

Enhancements \169\ and subsequent consultative papers. In accordance 
with Basel III, the proposal sought to require advanced approaches 
banking organizations to hold more appropriate levels of capital for 
counterparty credit risk, CVA, and wrong-way risk. Consistent with the 
2009 Enhancements, the agencies proposed to strengthen the risk-based 
capital requirements for certain securitization exposures by requiring 
banking organizations that are subject to the advanced approaches rule 
to conduct more rigorous credit analysis of securitization exposures 
and to enhance the disclosure requirements related to those exposures.
---------------------------------------------------------------------------

    \169\ See ``Enhancements to the Basel II framework'' (July 
2009), available at https://www.bis.org/publ/bcbs157.htm.
---------------------------------------------------------------------------

    The agencies also proposed revisions to the advanced approaches 
rule that are consistent with the requirements of section 939A of the 
Dodd-Frank Act.\170\ The agencies proposed to remove references to 
ratings from certain defined terms under the advanced approaches rule, 
as well as the ratings-based approach for securitization exposures, and 
replace these provisions with alternative standards of 
creditworthiness. The proposed rule also contained a number of proposed 
technical amendments to clarify or adjust existing requirements under 
the advanced approaches rule.
---------------------------------------------------------------------------

    \170\ See section 939A of Dodd-Frank Act (15 U.S.C. 78o-7 note).
---------------------------------------------------------------------------

    This section of the preamble describes the proposals in the 
Advanced Approaches NPR, comments received on those proposals, and the 
revisions to the advanced approaches rule reflected in the interim 
final rule.
    In many cases, the comments received on the Standardized Approach 
NPR were also relevant to the proposed changes to the advanced 
approaches framework. The FDIC generally took a consistent approach 
towards addressing the comments with respect to the standardized 
approach and the advanced approaches rule. Banking organizations that 
are or would be subject to the advanced approaches rule should refer to 
the relevant sections of the discussion of the standardized approach 
for further discussion of these comments.
    One commenter raised concerns about the use of models in 
determining regulatory capital requirements and encouraged the agencies 
to conduct periodic validation of banking organizations' models for 
capital adequacy and require modification if necessary. Consistent with 
the current advanced approaches rule, the interim final rule requires 
an FDIC-supervised institution to validate its models used to determine 
regulatory capital requirements on an ongoing basis. This validation 
must include an evaluation of conceptual soundness; an ongoing 
monitoring process that includes verification of processes and 
benchmarking; and an outcomes analysis process that includes 
backtesting. Under section 324.123 of the interim final rule, the FDIC 
may require the FDIC-supervised institution to calculate its advanced 
approaches risk-weighted assets according to modifications provided by 
the FDIC if the FDIC determines that the FDIC-supervised institution's 
advanced approaches total risk-weighted assets are not commensurate 
with its credit, market, operational or other risks.
    Other commenters suggested that the agencies interpret section 171 
of the Dodd-Frank Act narrowly with regard to the advanced approaches 
framework. The FDIC has adopted the approach taken in the proposed rule 
because it believes that the approach provides clear, consistent 
minimum requirements across institutions that comply with the 
requirements of section 171.

A. Counterparty Credit Risk

    The recent financial crisis highlighted certain aspects of the 
treatment of counterparty credit risk under the Basel II framework that 
were inadequate, and of banking organizations' risk management of 
counterparty credit risk that were insufficient. The Basel III 
revisions were intended to address both areas of weakness by ensuring 
that all material on- and off-balance sheet counterparty risks, 
including those associated with derivative-related exposures, are 
appropriately incorporated into banking organizations' risk-based 
capital ratios. In addition, new risk-management requirements in Basel 
III strengthen the oversight of counterparty credit risk exposures. The 
proposed rule included counterparty credit risk revisions in a manner 
generally consistent with the Basel III revisions to international 
standards, modified to incorporate alternative standards to the use of 
credit ratings. The discussion below highlights the proposed revisions, 
industry comments, and outcome of the interim final rule.
1. Recognition of Financial Collateral
a. Financial Collateral
    The EAD adjustment approach under section 132 of the proposed rules 
permitted a banking organization to recognize the credit risk 
mitigation benefits of financial collateral by adjusting the EAD rather 
than the loss given default (LGD) of the exposure for repo-style 
transactions, eligible margin loans and OTC derivative contracts. The 
permitted methodologies for recognizing such benefits included the 
collateral haircut approach, simple VaR approach and the IMM.
    Consistent with Basel III, the Advanced Approaches NPR proposed 
certain modifications to the definition of financial collateral. For 
example, the definition of financial collateral was modified so that 
resecuritizations would no longer qualify as financial collateral.\171\ 
Thus, resecuritization collateral could not be used to adjust the EAD 
of an exposure. The FDIC believes that this treatment is appropriate 
because resecuritizations have been shown to have more market value 
volatility than other types of financial collateral.
---------------------------------------------------------------------------

    \171\ Under the proposed rule, a securitization in which one or 
more of the underlying exposures is a securitization position would 
be a resecuritization. A resecuritization position under the 
proposal meant an on- or off-balance sheet exposure to a 
resecuritization, or an exposure that directly or indirectly 
references a securitization exposure.
---------------------------------------------------------------------------

    The proposed rule also removed conforming residential mortgages 
from the definition of financial collateral. As a result, a banking 
organization would no longer be able to recognize the credit risk 
mitigation benefit of such instruments through an adjustment to EAD. 
Consistent with the Basel III framework, the agencies proposed to 
exclude all debt securities that are not investment grade from the 
definition of financial collateral. As discussed in section VII.F of 
this preamble, the proposed rule revised the definition of ``investment 
grade'' for the advanced approaches rule and proposed conforming 
changes to the market risk rule.
    As discussed in section VIII.F of the preamble, the FDIC believes 
that the additional collateral types suggested by commenters are not 
appropriate forms of financial collateral because they exhibit 
increased variation and credit risk, and are relatively more 
speculative than the recognized forms of financial collateral under the 
proposal. In some cases, the assets suggested by commenters for 
eligibility as financial collateral were precisely the types of assets 
that became illiquid during the recent financial crisis. As a result, 
the FDIC has retained the definition of financial collateral as 
proposed.

[[Page 55449]]

b. Revised Supervisory Haircuts
    Securitization exposures have increased levels of volatility 
relative to other types of financial collateral. To address this issue, 
consistent with Basel III, the proposal incorporated new standardized 
supervisory haircuts for securitization exposures in the EAD adjustment 
approach based on the credit quality of the exposure. Consistent with 
section 939A of the Dodd-Frank Act, the proposed rule set out an 
alternative approach to assigning standard supervisory haircuts for 
securitization exposures, and amended the standard supervisory haircuts 
for other types of financial collateral to remove the references to 
credit ratings.
    Some commenters proposed limiting the maximum haircut for non-
sovereign issuers that receive a 100 percent risk weight to 12 percent, 
and more specifically assigning a lower haircut than 25 percent for 
financial collateral in the form of an investment-grade corporate debt 
security that has a shorter residual maturity. The commenters asserted 
that these haircuts conservatively correspond to the existing rating 
categories and result in greater alignment with the Basel framework. As 
discussed in section VIII.F of the preamble, in the interim final rule, 
the FDIC has revised the standard supervisory market price volatility 
haircuts for financial collateral issued by non-sovereign issuers with 
a risk weight of 100 percent from 25.0 percent to 4.0 percent for 
maturities of less than one year, 8.0 percent for maturities greater 
than one year but less than or equal to five years, and 16.0 percent 
for maturities greater than five years, consistent with Table 25 below. 
The FDIC believes that the revised haircuts better reflect the 
collateral's credit quality and an appropriate differentiation based on 
the collateral's residual maturity.
    Consistent with the proposal, under the interim final rule, 
supervisory haircuts for exposures to sovereigns, GSEs, public sector 
entities, depository institutions, foreign banks, credit unions, and 
corporate issuers are calculated based upon the risk weights for such 
exposures described under section 324.32 of the interim final rule. The 
interim final rule also clarifies that if an FDIC-supervised 
institution lends instruments that do not meet the definition of 
financial collateral, such as non-investment-grade corporate debt 
securities or resecuritization exposures, the haircut applied to the 
exposure must be 25 percent.

                                           Table 25--Standard Supervisory Market Price Volatility Haircuts \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Haircut (in percent) assigned based on:
                                                     ------------------------------------------------------------------------------------   Investment-
                                                         Sovereign issuers risk weight under     Non-sovereign issuers risk weight under       grade
                  Residual maturity                          section 32 \2\ (in percent)                 section 32 (in percent)          securitization
                                                     ------------------------------------------------------------------------------------  exposures (in
                                                          Zero        20 or 50         100           20            50            100         percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than or equal to 1 year........................           0.5           1.0          15.0           1.0           2.0           4.0            4.0
Greater than 1 year and less than or equal to 5                2.0           3.0          15.0           4.0           6.0           8.0           12.0
 years..............................................
Greater than 5 years................................           4.0           6.0          15.0           8.0          12.0          16.0           24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Main index equities (including convertible bonds) and gold   15.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Other publicly traded equities (including convertible bonds)  25.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Mutual funds   Highest haircut applicable to any security in which
                                                                       the fund can invest.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Cash collateral held                      Zero
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Other exposure types                      25.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The market price volatility haircuts in Table 25 are based on a 10 business-day holding period.
\2\ Includes a foreign PSE that receives a zero percent risk weight.

2. Holding Periods and the Margin Period of Risk
    As noted in the proposal, during the recent financial crisis, many 
financial institutions experienced significant delays in settling or 
closing out collateralized transactions, such as repo-style 
transactions and collateralized OTC derivative contracts. The assumed 
holding period for collateral in the collateral haircut and simple VaR 
approaches and the margin period of risk in the IMM proved to be 
inadequate for certain transactions and netting sets.\172\ It also did 
not reflect the difficulties and delays experienced by institutions 
when settling or liquidating collateral during a period of financial 
stress.
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    \172\ Under the advanced approaches rule, the margin period of 
risk means, with respect to a netting set subject to a collateral 
agreement, the time period from the most recent exchange of 
collateral with a counterparty until the next required exchange of 
collateral plus the period of time required to sell and realize the 
proceeds of the least liquid collateral that can be delivered under 
the terms of the collateral agreement and, where applicable, the 
period of time required to re-hedge the resulting market risk, upon 
the default of the counterparty.
---------------------------------------------------------------------------

    Consistent with Basel III, the proposed rule would have amended the 
advanced approaches rule to incorporate adjustments to the holding 
period in the collateral haircut and simple VaR approaches, and to the 
margin period of risk in the IMM that a banking organization may use to 
determine its capital requirement for repo-style transactions, OTC 
derivative transactions, and eligible margin loans, with respect to 
large netting sets, netting sets involving illiquid collateral or 
including OTC derivatives that could not easily be replaced, or two 
margin disputes within a netting set over the previous two quarters 
that last for a certain length of time. For cleared transactions, which 
are discussed below, the agencies proposed not to require a banking 
organization to adjust the holding period or margin period of risk 
upward when determining the capital requirement for its counterparty 
credit risk exposures to the CCP, which is also consistent with Basel 
III.

[[Page 55450]]

    One commenter asserted that the proposed triggers for the increased 
margin period of risk were not in the spirit of the advanced approaches 
rule, which is intended to be more risk sensitive than the general 
risk-based capital rules. Another commenter asserted that banking 
organizations should be permitted to increase the holding period or 
margin period of risk by one or more business days, but not be required 
to increase it to the full period required under the proposal (20 
business days or at least double the margin period of risk).
    The FDIC believes the triggers set forth in the proposed rule, as 
well as the increased holding period or margin period of risk are 
empirical indicators of increased risk of delay or failure of close-out 
on the default of a counterparty. The goal of risk sensitivity would 
suggest that modifying these indicators is not warranted and could lead 
to increased risks to the banking system. Accordingly, the interim 
final rule adopts these features as proposed.
3. Internal Models Methodology
    Consistent with Basel III, the proposed rule would have amended the 
advanced approaches rule so that the capital requirement for IMM 
exposures is equal to the larger of the capital requirement for those 
exposures calculated using data from the most recent three-year period 
and data from a three-year period that contains a period of stress 
reflected in the credit default spreads of the banking organization's 
counterparties. The proposed rule defined an IMM exposure as a repo-
style transaction, eligible margin loan, or OTC derivative contract for 
which a banking organization calculates EAD using the IMM.
    The proposed rule would have required a banking organization to 
demonstrate to the satisfaction of the banking organization's primary 
Federal supervisor at least quarterly that the stress period it uses 
for the IMM coincides with increased CDS or other credit spreads of its 
counterparties and to have procedures in place to evaluate the 
effectiveness of its stress calibration. These procedures would have 
been required to include a process for using benchmark portfolios that 
are vulnerable to the same risk factors as the banking organization's 
portfolio. In addition, under the proposal, the primary Federal 
supervisor could require a banking organization to modify its stress 
calibration if the primary Federal supervisor believes that another 
calibration better reflects the actual historic losses of the 
portfolio.
    Consistent with Basel III and the current advanced approaches rule, 
the proposed rule would have required a banking organization to 
establish a process for initial validation and annual review of its 
internal models. As part of the process, the proposed rule would have 
required a banking organization to have a backtesting program for its 
model that includes a process by which unacceptable model performance 
is identified and remedied. In addition, a banking organization would 
have been required to multiply the expected positive exposure (EPE) of 
a netting set by the default scaling factor alpha (set equal to 1.4) in 
calculating EAD. The primary Federal supervisor could require the 
banking organization to set a higher default scaling factor based on 
the past performance of the banking organization's internal model.
    The proposed rule would have required a banking organization to 
have policies for the measurement, management, and control of 
collateral, including the reuse of collateral and margin amounts, as a 
condition of using the IMM. Under the proposal, a banking organization 
would have been required to have a comprehensive stress testing program 
for the IMM that captures all credit exposures to counterparties and 
incorporates stress testing of principal market risk factors and the 
creditworthiness of its counterparties.
    Basel III provided that a banking organization could capture within 
its internal model the effect on EAD of a collateral agreement that 
requires receipt of collateral when the exposure to the counterparty 
increases. Basel II also contained a ``shortcut'' method to provide a 
banking organization whose internal model did not capture the effects 
of collateral agreements with a method to recognize some benefit from 
the collateral agreement. Basel III modifies the ``shortcut'' method 
for capturing the effects of collateral agreements by setting effective 
EPE to a counterparty as the lesser of the following two exposure 
calculations: (1) The exposure without any held or posted margining 
collateral, plus any collateral posted to the counterparty independent 
of the daily valuation and margining process or current exposure, or 
(2) an add-on that reflects the potential increase of exposure over the 
margin period of risk plus the larger of (i) the current exposure of 
the netting set reflecting all collateral received or posted by the 
banking organization excluding any collateral called or in dispute; or 
(ii) the largest net exposure (including all collateral held or posted 
under the margin agreement) that would not trigger a collateral call. 
The add-on would be computed as the largest expected increase in the 
netting set's exposure over any margin period of risk in the next year. 
The proposed rule included the Basel III modification of the 
``shortcut'' method.
    The interim final rule adopts all the proposed requirements 
discussed above with two modifications. With respect to the proposed 
requirement that an FDIC-supervised institution must demonstrate on a 
quarterly basis to the FDIC the appropriateness of its stress period, 
under the interim final rule, the FDIC-supervised institution must 
instead demonstrate at least quarterly that the stress period coincides 
with increased CDS or other credit spreads of the FDIC-supervised 
institution's counterparties, and must maintain documentation of such 
demonstration. In addition, the formula for the ``shortcut'' method has 
been modified to clarify that the add-on is computed as the expected 
increase in the netting set's exposure over the margin period of risk.
a. Recognition of Wrong-Way Risk
    The recent financial crisis highlighted the interconnectedness of 
large financial institutions through an array of complex transactions. 
In recognition of this interconnectedness and to mitigate the risk of 
contagion from the banking sector to the broader financial system and 
the general economy, Basel III includes enhanced requirements for the 
recognition and treatment of wrong-way risk in the IMM. The proposed 
rule defined wrong-way risk as the risk that arises when an exposure to 
a particular counterparty is positively correlated with the probability 
of default of that counterparty.
    The proposed rule provided enhancements to the advanced approaches 
rule that require banking organizations' risk-management procedures to 
identify, monitor, and control wrong-way risk throughout the life of an 
exposure. The proposed rule required these risk-management procedures 
to include the use of stress testing and scenario analysis. In 
addition, where a banking organization has identified an IMM exposure 
with specific wrong-way risk, the banking organization would be 
required to treat that transaction as its own netting set. The proposed 
rule defined specific wrong-way risk as a type of wrong-way risk that 
arises when either the counterparty and issuer of the collateral 
supporting the transaction, or the counterparty and the reference asset 
of the transaction, are affiliates or are the same entity.
    In addition, under the proposal, where a banking organization has

[[Page 55451]]

identified an OTC derivative transaction, repo-style transaction, or 
eligible margin loan with specific wrong-way risk for which the banking 
organization otherwise applies the IMM, the banking organization would 
set the probability of default (PD) of the counterparty and a LGD equal 
to 100 percent. The banking organization would then enter these 
parameters into the appropriate risk-based capital formula specified in 
Table 1 of section 131 of the proposed rule, and multiply the output of 
the formula (K) by an alternative EAD based on the transaction type, as 
follows:
    (1) For a purchased credit derivative, EAD would be the fair value 
of the underlying reference asset of the credit derivative contract;
    (2) For an OTC equity derivative,\173\ EAD would be the maximum 
amount that the banking organization could lose if the fair value of 
the underlying reference asset decreased to zero;
---------------------------------------------------------------------------

    \173\ Under the interim final rule, equity derivatives that are 
call options are not subject to a counterparty credit risk capital 
requirement for specific wrong-way risk.
---------------------------------------------------------------------------

    (3) For an OTC bond derivative (that is, a bond option, bond 
future, or any other instrument linked to a bond that gives rise to 
similar counterparty credit risks), EAD would be the smaller of the 
notional amount of the underlying reference asset and the maximum 
amount that the banking organization could lose if the fair value of 
the underlying reference asset decreased to zero; and
    (4) For repo-style transactions and eligible margin loans, EAD 
would be calculated using the formula in the collateral haircut 
approach of section 132 of the interim final rule and with the 
estimated value of the collateral substituted for the parameter C in 
the equation.
    The interim final rule adopts the proposed requirements regarding 
wrong-way risk discussed above.
b. Increased Asset Value Correlation Factor
    To recognize the correlation of financial institutions' 
creditworthiness attributable to similar sensitivities to common risk 
factors, the agencies proposed to incorporate the Basel III increase in 
the correlation factor used in the formulas provided in Table 1 of 
section 131 of the proposed rule for certain wholesale exposures. Under 
the proposed rule, banking organizations would apply a multiplier of 
1.25 to the correlation factor for wholesale exposures to unregulated 
financial institutions that generate a majority of their revenue from 
financial activities, regardless of asset size. This category would 
include highly leveraged entities, such as hedge funds and financial 
guarantors. The proposal also included a definition of ``regulated 
financial institution,'' meaning a financial institution subject to 
consolidated supervision and regulation comparable to that imposed on 
certain U.S. financial institutions, namely depository institutions, 
depository institution holding companies, nonbank financial companies 
supervised by the Federal Reserve, designated FMUs, securities broker-
dealers, credit unions, or insurance companies. Banking organizations 
would apply a multiplier of 1.25 to the correlation factor for 
wholesale exposures to regulated financial institutions with 
consolidated assets of greater than or equal to $100 billion.
    Several commenters pointed out that in the proposed formulas for 
wholesale exposures to unregulated and regulated financial 
institutions, the 0.18 multiplier should be revised to 0.12 in order to 
be consistent with Basel III. The FDIC has corrected this aspect of 
both formulas in the interim final rule.
    Another comment asserted that the 1.25 multiplier for the 
correlation factor for wholesale exposures to unregulated financial 
institutions or regulated financial institutions with more than $100 
billion in assets is an overly blunt tool and is not necessary as 
single counterparty credit limits already address interconnectivity 
risk. Consistent with the concerns about systemic risk and 
interconnectedness surrounding these classes of institutions, the FDIC 
continues to believe that the 1.25 multiplier appropriately reflects 
the associated additional risk. Therefore, the interim final rule 
retains the 1.25 multiplier. In addition, the interim final rule also 
adopts the definition of ``regulated financial institution'' without 
change from the proposal. As discussed in section V.B, above, the FDIC 
received significant comment on the definition of ``financial 
institution'' in the context of deductions of investments in the 
capital of unconsolidated financial institutions. That definition also, 
under the proposal, defined the universe of ``unregulated'' financial 
institutions as companies meeting the definition of ``financial 
institution'' that were not regulated financial institutions. For the 
reasons discussed in section V.B of the preamble, the FDIC has modified 
the definition of ``financial institution,'' including by introducing 
an ownership interest threshold to the ``predominantly engaged'' test 
to determine if an FDIC-supervised institution must subject a 
particular unconsolidated investment in a company that may be a 
financial institution to the relevant deduction thresholds under 
subpart C of the interim final rule. While commenters stated that it 
would be burdensome to determine whether an entity falls within the 
definition of financial institution using the predominantly engaged 
test, the FDIC believes that advanced approaches FDIC-supervised 
institutions should have the systems and resources to identify the 
activities of their wholesale counterparties. Accordingly, under the 
interim final rule, the FDIC has adopted a definition of ``unregulated 
financial institution'' that does not include the ownership interest 
threshold test but otherwise incorporates revisions to the definition 
of ``financial institution.'' Under the interim final rule, an 
``unregulated financial institution'' is a financial institution that 
is not a regulated financial institution and that meets the definition 
of ``financial institution'' under the interim final rule without 
regard to the ownership interest thresholds set forth in paragraph 
(4)(i) of that definition. The FDIC believes the ``unregulated 
financial institution'' definition is necessary to maintain an 
appropriate scope for the 1.25 multiplier consistent with the proposal 
and Basel III.
4. Credit Valuation Adjustments
    After the recent financial crisis, the BCBS reviewed the treatment 
of counterparty credit risk and found that roughly two-thirds of 
counterparty credit risk losses during the crisis were due to fair 
value losses from CVA (that is, the fair value adjustment to reflect 
counterparty credit risk in the valuation of an OTC derivative 
contract), whereas one-third of counterparty credit risk losses 
resulted from actual defaults. The internal ratings-based approach in 
Basel II addressed counterparty credit risk as a combination of default 
risk and credit migration risk. Credit migration risk accounts for fair 
value losses resulting from deterioration of counterparties' credit 
quality short of default and is addressed in Basel II via the maturity 
adjustment multiplier. However, the maturity adjustment multiplier in 
Basel II was calibrated for loan portfolios and may not be suitable for 
addressing CVA risk. Basel III therefore includes an explicit capital 
requirement for CVA risk. Accordingly, consistent with Basel III and 
the proposal, the interim final rule requires FDIC-supervised 
institutions to calculate risk-weighted assets for CVA risk.

[[Page 55452]]

    Consistent with the Basel III CVA capital requirement and the 
proposal, the interim final rule reflects in risk-weighted assets a 
potential increase of the firm-wide CVA due to changes in 
counterparties' credit spreads, assuming fixed expected exposure (EE) 
profiles. The proposed and interim final rules provide two approaches 
for calculating the CVA capital requirement: the simple approach and 
the advanced CVA approach. However, unlike Basel III, they do not 
include references to credit ratings.
    Consistent with the proposal and Basel III, the simple CVA approach 
in the interim final rule permits calculation of the CVA capital 
requirement (KCVA) based on a formula described in more 
detail below, with a modification consistent with section 939A of the 
Dodd-Frank Act. Under the advanced CVA approach in the interim final 
rule, consistent with the proposal, an FDIC-supervised institution 
would use the VaR model that it uses to calculate specific risk under 
section 324.207(b) of subpart F or another model that meets the 
quantitative requirements of sections 324.205(b) and 324.207(b)(1) of 
subpart F to calculate its CVA capital requirement for its entire 
portfolio of OTC derivatives that are subject to the CVA capital 
requirement \174\ by modeling the impact of changes in the 
counterparties' credit spreads, together with any recognized CVA hedges 
on the CVA for the counterparties. To convert the CVA capital 
requirement to a risk-weighted asset amount, an FDIC-supervised 
institution must multiply its CVA capital requirement by 12.5. The CVA 
risk-weighted asset amount is not a component of credit risk-weighted 
assets and therefore is not subject to the 1.06 multiplier for credit 
risk-weighted assets under the interim final rule. Consistent with the 
proposal, the interim final rule provides that only an FDIC-supervised 
institution that is subject to the market risk rule and had obtained 
prior approval from the FDIC to calculate (1) the EAD for OTC 
derivative contracts using the IMM described in section 324.132, and 
(2) the specific risk add-on for debt positions using a specific risk 
model described in section 324.207(b) of subpart F is eligible to use 
the advanced CVA approach. An FDIC-supervised institution that receives 
such approval would be able to continue to use the advanced CVA 
approach until it notifies the FDIC in writing that it expects to begin 
calculating its CVA capital requirement using the simple CVA approach. 
Such notice must include an explanation from the FDIC-supervised 
institution as to why it is choosing to use the simple CVA approach and 
the date when the FDIC-supervised institution would begin to calculate 
its CVA capital requirement using the simple CVA approach.
---------------------------------------------------------------------------

    \174\ Certain CDS may be exempt from inclusion in the portfolio 
of OTC derivatives that are subject to the CVA capital requirement. 
For example, a CDS on a loan that is recognized as a credit risk 
mitigant and receives substitution treatment under section 134 would 
not be included in the portfolio of OTC derivatives that are subject 
to the CVA capital requirement.
---------------------------------------------------------------------------

    Consistent with the proposal, under the interim final rule, when 
calculating a CVA capital requirement, an FDIC-supervised institution 
may recognize the hedging benefits of single name CDS, single name 
contingent CDS, any other equivalent hedging instrument that references 
the counterparty directly, and index CDS (CDSind), provided 
that the equivalent hedging instrument is managed as a CVA hedge in 
accordance with the FDIC-supervised institution's hedging policies. A 
tranched or n\th\-to-default CDS would not qualify as a CVA hedge. In 
addition, any position that is recognized as a CVA hedge would not be a 
covered position under the market risk rule, except in the case where 
the FDIC-supervised institution is using the advanced CVA approach, the 
hedge is a CDSind, and the VaR model does not capture the 
basis between the spreads of the index that is used as the hedging 
instrument and the hedged counterparty exposure over various time 
periods, as discussed in further detail below. The agencies received 
several comments on the proposed CVA capital requirement. One commenter 
asserted that there was ambiguity in the ``total CVA risk-weighted 
assets'' definition which could be read as indicating that 
KCVA is calculated for each counterparty and then summed. 
The FDIC agrees that KCVA relates to an FDIC-supervised 
institution's entire portfolio of OTC derivatives contracts, and the 
interim final rule reflects this clarification.
    A commenter asserted that the proposed CVA treatment should not 
apply to central banks, MDBs and other similar counterparties that have 
very low credit risk, such as the Bank for International Settlements 
and the European Central Bank, as well as U.S. PSEs. Another commenter 
pointed out that the proposal in the European Union to implement Basel 
III excludes sovereign, pension fund, and corporate counterparties from 
the proposed CVA treatment. Another commenter argued that the proposed 
CVA treatment should not apply to transactions executed with end-users 
when hedging business risk because the resulting increase in pricing 
will disproportionately impact small- and medium-sized businesses.
    The interim final rule does not exempt the entities suggested by 
commenters. However, the FDIC anticipates that a counterparty that is 
exempt from the 0.03 percent PD floor under Sec.  324.131(d)(2) and 
receives a zero percent risk weight under Sec.  324.32 (that is, 
central banks, MDBs, the Bank for International Settlements and 
European Central Bank) likely would attract a minimal CVA requirement 
because the credit spreads associated with these counterparties have 
very little variability. Regarding the other entities mentioned by 
commenters (U.S. public sector entities, pension funds and corporate 
end-users), the FDIC believes it is appropriate for CVA to apply as 
these counterparty types exhibit varying degrees of credit risk.
    Some commenters asked that the agencies clarify that interest rate 
hedges of CVA are not covered positions as defined in subpart F and, 
therefore, not subject to a market risk capital requirement. In 
addition, some commenters asserted that the overall capital 
requirements for CVA are more appropriately addressed as a trading book 
issue in the context of the BCBS Fundamental Review of the Trading 
Book.\175\ Another commenter asserted that CVA rates hedges (to the 
extent they might be covered positions) should be excluded from the 
market-risk rule capital requirements until supervisors are ready to 
approve allowing CVA rates sensitivities to be incorporated into a 
banking organization's general market risk VaR.
---------------------------------------------------------------------------

    \175\ See ``Fundamental review of the trading book'' (May 2012) 
available at https://www.bis.org/publ/bcbs219.pdf.
---------------------------------------------------------------------------

    The FDIC recognizes that CVA is not a covered position under the 
market risk rule. Hence, as elaborated in the market risk rule, hedges 
of non-covered positions that are not themselves trading positions also 
are not eligible to be a covered position under the market risk rule. 
Therefore, the FDIC clarifies that non-credit risk hedges (market risk 
hedges or exposure hedges) of CVA generally are not covered positions 
under the market risk rule, but rather are assigned risk-weighted asset 
amounts under subparts D and E of the interim final rule.\176\ Once the 
BCBS Fundamental Review of the Trading

[[Page 55453]]

Book is complete, the agencies will review the BCBS findings and 
consider whether they are appropriate for U.S. banking organizations.
---------------------------------------------------------------------------

    \176\ The FDIC believes that an FDIC-supervised institution 
needs to demonstrate rigorous risk management and the efficacy of 
its CVA hedges and should follow the risk management principles of 
the Interagency Supervisory Guidance on Counterparty Credit Risk 
Management (2011) and identification of covered positions as in the 
FDIC's market risk rule, see 77 FR 53060 (August 30, 2012).
---------------------------------------------------------------------------

    One commenter asserted that observable LGDs for credit derivatives 
do not represent the best estimation of LGD for calculating CVA under 
the advanced CVA approach, and that a final rule should instead 
consider a number of parameters, including market observable recovery 
rates on unsecured bonds and structural components of the derivative. 
Another commenter argued that banking organizations should be permitted 
greater flexibility in determining market-implied loss given default 
(LGDMKT) and credit spread factors for VaR.
    Consistent with the BCBS's frequently asked question (BCBS FAQ) on 
this topic,\177\ the FDIC recognizes that while there is often limited 
market information of LGDMKT (or equivalently the market 
implied recovery rate), the FDIC considers the use of LGDMKT 
to be the most appropriate approach to quantify CVA. It is also the 
market convention to use a fixed recovery rate for CDS pricing 
purposes; FDIC-supervised institutions may use that information for 
purposes of the CVA capital requirement in the absence of other 
information. In cases where a netting set of OTC derivative contracts 
has a different seniority than those derivative contracts that trade in 
the market from which LGDMKT is inferred, an FDIC-supervised 
institution may adjust LGDMKT to reflect this difference in 
seniority. Where no market information is available to determine 
LGDMKT, an FDIC-supervised institution may propose a method 
for determining LGDMKT based upon data collected by the 
FDIC-supervised institution that would be subject to approval by the 
FDIC. The interim final rule has been amended to include this 
alternative.
---------------------------------------------------------------------------

    \177\ See ``Basel III counterparty credit risk and exposures to 
central counterparties--Frequently asked questions (December 2012 
(update of FAQs published November 2012)) at https://www.bis.org/publ/bcbs237.pdf.
---------------------------------------------------------------------------

    Regarding the proposed CVA EAD calculation assumptions in the 
advanced CVA approach, one commenter asserted that EE constant 
treatment is inappropriate, and that it is more appropriate to use the 
weighted average maturity of the portfolio rather than the netting set. 
Another commenter asserted that maturity should equal the weighted 
average maturity of all transactions in the netting set, rather than 
the greater of the notional weighted average maturity and the maximum 
of half of the longest maturity occurring in the netting set. The FDIC 
notes that this issue is relevant only where an FDIC-supervised 
institution utilized the current exposure method or the ``shortcut'' 
method, rather than IMM, for any immaterial portfolios of OTC 
derivatives contracts. As a result, the interim final rule retains the 
requirement to use the greater of the notional weighted average 
maturity (WAM) and the maximum of half of the longest maturity in the 
netting set when calculating EE constant treatment in the advanced CVA 
approach.
    One commenter asked the agencies to clarify that section 132(c)(3) 
would exempt the purchased CDS from the proposed CVA capital 
requirements in section 132(e) of a final rule. Consistent with the 
BCBS FAQ on this topic, the FDIC agrees that purchased credit 
derivative protection against a wholesale exposure that is subject to 
the double default framework or the PD substitution approach and where 
the wholesale exposure itself is not subject to the CVA capital 
requirement, will not be subject to the CVA capital requirement in the 
interim final rule. Also consistent with the BCBS FAQ, the purchased 
credit derivative protection may not be recognized as a hedge for any 
other exposure under the interim final rule.
    Another commenter asserted that single-name proxy CDS trades should 
be allowed as hedges in the advanced CVA approach CVA VaR calculation. 
Under the interim final rule, an FDIC-supervised institution is 
permitted to recognize the hedging benefits of single name CDS, single 
name contingent CDS, any other equivalent hedging instrument that 
references the counterparty directly, and CDSind, provided 
that the hedging instrument is managed as a CVA hedge in accordance 
with the FDIC-supervised institution's hedging policies. The interim 
final rule does not permit the use of single-name proxy CDS. The FDIC 
believes this is an important limitation because of the significant 
basis risk that could arise from the use of a single-name proxy.
    Additionally, the interim final rule reflects several clarifying 
amendments to the proposed rule. First, the interim final rule divides 
the Advanced CVA formulas in the proposed rule into two parts: Formula 
3 and Formula 3a. The FDIC believes that this clarification is 
important to reflect the different purposes of the two formulas: the 
first formula (Formula 3) is for the CVA VaR calculation, whereas the 
second formula (Formula 3a) is for calculating CVA for each credit 
spread simulation scenario. The interim final rule includes a 
description that clarifies each formula's purpose. In addition, the 
notations in proposed Formula 3 have been changed from 
CVAstressedVaR and CVAunstressedVaR to 
VaR^CVAstressed and 
VaR^CVAunstressed. The definitions of these terms 
have not changed in the interim final rule. Finally, the subscript 
``j'' in Formula 3a has been defined as referring either to 
stressed or unstressed calibrations. These formulas are discussed in 
the interim final rule description below.
a. Simple Credit Valuation Adjustment approach
    Under the interim final rule, an FDIC-supervised institution 
without approval to use the advanced CVA approach must use formula 1 to 
calculate its CVA capital requirement for its entire portfolio of OTC 
derivative contracts. The simple CVA approach is based on an analytical 
approximation derived from a general CVA VaR formulation under a set of 
simplifying assumptions:
    (1) All credit spreads have a flat term structure;
    (2) All credit spreads at the time horizon have a lognormal 
distribution;
    (3) Each single name credit spread is driven by the combination of 
a single systematic factor and an idiosyncratic factor;
    (4) The correlation between any single name credit spread and the 
systematic factor is equal to 0.5;
    (5) All credit indices are driven by the single systematic factor; 
and
    (6) The time horizon is short (the square root of time scaling to 1 
year is applied). The approximation is based on the linearization of 
the dependence of both CVA and CDS hedges on credit spreads. Given the 
assumptions listed above, a measure of CVA VaR has a closed-form 
analytical solution. The formula of the simple CVA approach is obtained 
by applying certain standardizations, conservative adjustments, and 
scaling to the analytical CVA VaR result.
    An FDIC-supervised institution calculates KCVA, where:

[[Page 55454]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.009

    In Formula 1, wi refers to the weight applicable to counterparty i 
assigned according to Table 26 below.\178\ In Basel III, the BCBS 
assigned wi based on the external rating of the counterparty. However, 
consistent with the proposal and section 939A of the Dodd-Frank Act, 
the interim final rule assigns wi based on the relevant PD of the 
counterparty, as assigned by the FDIC-supervised institution. Quantity 
wind in Formula 1 refers to the weight applicable to the 
CDSind based on the average weight under Table 26 of the 
underlying reference names that comprise the index.
---------------------------------------------------------------------------

    \178\ These weights represent the assumed values of the product 
of a counterparties' current credit spread and the volatility of 
that credit spread.

    Table 26--Assignment of Counterparty Weight Under the Simple CVA
------------------------------------------------------------------------
                                                           Weight wi (in
                Internal PD  (in percent)                    percent)
------------------------------------------------------------------------
0.00-0.07...............................................            0.70
>0.07-0.15..............................................            0.80
>0.15-0.40..............................................            1.00
>0.4-2.00...............................................            2.00
>2.0-6.00...............................................            3.00
>6.0....................................................           10.00
------------------------------------------------------------------------

    EADi total in Formula 1 refers to the sum of the EAD for all 
netting sets of OTC derivative contracts with counterparty i calculated 
using the current exposure methodology described in section 132(c) of 
the interim final rule, as adjusted by Formula 2 or the IMM described 
in section 132(d) of the interim final rule. When the FDIC-supervised 
institution calculates EAD using the IMM, EADi 
^total equals EADunstressed.
[GRAPHIC] [TIFF OMITTED] TR10SE13.010

    The term ``exp'' is the exponential function. Quantity Mi in 
Formulas 1 and 2 refers to the EAD-weighted average of the effective 
maturity of each netting set with counterparty i (where each netting 
set's M cannot be smaller than one). Quantity Mi hedge in Formula 1 
refers to the notional weighted average maturity of the hedge 
instrument. Quantity Mind in Formula 1 equals the maturity of the 
CDSind or the notional weighted average maturity of any 
CDSind purchased to hedge CVA risk of counterparty i.
    Quantity Bi in Formula 1 refers to the sum of the notional amounts 
of any purchased single name CDS referencing counterparty i that is 
used to hedge CVA risk to counterparty i multiplied by (1-exp(-0.05 x 
Mi hedge))/(0.05 x Mi hedge). Quantity Bind in Formula 1 refers to the 
notional amount of one or more CDSind purchased as 
protection to hedge CVA risk for counterparty i multiplied by (1-exp(-
0.05 x Mind))/(0.05 x Mind). If counterparty i is part of an index used 
for hedging, an FDIC-supervised institution is allowed to treat the 
notional amount in an index attributable to that counterparty as a 
single name hedge of counterparty i (Bi,) when calculating 
KCVA and subtract the notional amount of Bi from the 
notional amount of the CDSind. The CDSind hedge 
with the notional amount reduced by Bi can still be treated as a CVA 
index hedge.
b. Advanced Credit Valuation Adjustment approach
    The interim final rule requires that the VaR model incorporate only 
changes in the counterparties' credit spreads, not changes in other 
risk factors; it does not require an FDIC-supervised institution to 
capture jump-to-default risk in its VaR model.
    In order for an FDIC-supervised institution to receive approval to 
use the advanced CVA approach under the interim final rule, the FDIC-
supervised institution needs to have the systems capability to 
calculate the CVA capital requirement on a daily basis but is not 
expected or required to calculate the CVA capital requirement on a 
daily basis.
    The CVA capital requirement under the advanced CVA approach is 
equal to the general market risk capital requirement of the CVA 
exposure using the ten-business-day time horizon of the market risk 
rule. The capital requirement does not include the incremental risk 
requirement of subpart F. If an FDIC-supervised institution uses the 
current exposure methodology to calculate the EAD of any immaterial OTC 
derivative portfolio, under the interim final rule the FDIC-supervised 
institution must use this EAD as a constant EE in the formula for the 
calculation of CVA. Also, the FDIC-supervised institution must set the 
maturity equal to the greater of half of the longest maturity occurring 
in the netting set and the notional weighted average maturity of all 
transactions in the netting set.
    The interim final rule requires an FDIC-supervised institution to 
use the formula for the advanced CVA approach to calculate 
KCVA as follows:

[[Page 55455]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.011

VaRj is the 99 percent VaR reflecting changes of CVAj and fair value of 
eligible hedges (aggregated across all counterparties and eligible 
hedges) resulting from simulated changes of credit spreads over a ten-
day time horizon.\179\ CVAj for a given counterparty must be calculated 
according to
---------------------------------------------------------------------------

    \179\ For purposes of this formula, the subscript 
``j'' refers either to a stressed or unstressed 
calibration as described in section 133(e)(6)(iv) and (v) of the 
interim final rule.
[GRAPHIC] [TIFF OMITTED] TR10SE13.012

In Formula 3a:
    (A) ti equals the time of the i-th revaluation time bucket starting 
from t0 = 0.
    (B) tT equals the longest contractual maturity across the OTC 
derivative contracts with the counterparty.
    (C) si equals the CDS spread for the counterparty at tenor 
ti used to calculate the CVA for the counterparty. If a CDS 
spread is not available, the FDIC-supervised institution must use a 
proxy spread based on the credit quality, industry and region of the 
counterparty.
    (D) LGDMKT equals the loss given default of the counterparty based 
on the spread of a publicly traded debt instrument of the counterparty, 
or, where a publicly traded debt instrument spread is not available, a 
proxy spread based on the credit quality, industry and region of the 
counterparty.
    (E) EEi equals the sum of the expected exposures for all netting 
sets with the counterparty at revaluation time ti calculated 
using the IMM.
    (F) Di equals the risk-free discount factor at time ti, 
where D0 = 1.
    (G) The function exp is the exponential function.
    (H) The subscript j refers either to a stressed or an unstressed 
calibration as described in section 324.132(e)(6)(iv) and (v) of the 
interim final rule.
    Under the interim final rule, if an FDIC-supervised institution's 
VaR model is not based on full repricing, the FDIC-supervised 
institution must use either Formula 4 or Formula 5 to calculate credit 
spread sensitivities. If the VaR model is based on credit spread 
sensitivities for specific tenors, the FDIC-supervised institution must 
calculate each credit spread sensitivity according to Formula 4:

[[Page 55456]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.013

    Under the interim final rule, an FDIC-supervised institution must 
calculate VaR\CVA\unstressed using 
CVAUnstressed and VaR\CVA\stressed 
using CVAStressed. To calculate the CVAUnstressed 
measure in Formula 3a, an FDIC-supervised institution must use the EE 
for a counterparty calculated using current market data to compute 
current exposures and estimate model parameters using the historical 
observation period required under section 205(b)(2) of subpart F. 
However, if an FDIC-supervised institution uses the ``shortcut'' method 
described in section 324.132(d)(5) of the interim final rule to capture 
the effect of a collateral agreement when estimating EAD using the IMM, 
the FDIC-supervised institution must calculate the EE for the 
counterparty using that method and keep that EE constant with the 
maturity equal to the maximum of half of the longest maturity occurring 
in the netting set, and the notional weighted average maturity of all 
transactions in the netting set.
    To calculate the CVAStressed measure in Formula 3a, the interim 
final rule requires an FDIC-supervised institution to use the EE for a 
counterparty calculated using the stress calibration of the IMM. 
However, if an FDIC-supervised institution uses the ``shortcut'' method 
described in section 324.132(d)(5) of the interim final rule to capture 
the effect of a collateral agreement when estimating EAD using the IMM, 
the FDIC-supervised institution must calculate the EE for the 
counterparty using that method and keep that EE constant with the 
maturity equal to the greater of half of the longest maturity occurring 
in the netting set with the notional amount equal to the weighted 
average maturity of all transactions in the netting set. Consistent 
with Basel III, the interim final rule requires an FDIC-supervised 
institution to calibrate the VaR model inputs to historical data from 
the most severe twelve-month stress period contained within the three-
year stress period used to calculate EE. However, the FDIC retains the 
flexibility to require an FDIC-supervised institution to use a 
different period of significant financial stress in the calculation of 
the CVAStressed measure that better reflects actual historic losses of 
the portfolio.
    Under the interim final rule, an FDIC-supervised institution's VaR 
model is required to capture the basis between the spreads of the index 
that is used as the hedging instrument and the hedged counterparty 
exposure over various time periods, including benign and stressed 
environments. If the VaR model does not capture that basis, the FDIC-
supervised institution is permitted to reflect only 50 percent of the 
notional amount of the CDSind hedge in the VaR model.
5. Cleared Transactions (Central Counterparties)
    As discussed more fully in section VIII.E of this preamble on 
cleared transactions under the standardized approach, CCPs help improve 
the safety and soundness of the derivatives and repo-style transaction 
markets through the multilateral netting of exposures, establishment 
and enforcement of collateral requirements, and market transparency. 
Similar to the changes to the cleared transaction treatment in the 
subpart D of the interim final rule, the requirements regarding the 
cleared transaction framework in the subpart E has been revised to 
reflect the material changes from the BCBS CCP interim framework. Key 
changes from the CCP interim framework, include: (1) Allowing a 
clearing member FDIC-supervised institution to use a reduced

[[Page 55457]]

margin period of risk when using the IMM or a scaling factor of no less 
than 0.71 \180\ when using the CEM in the calculation of its EAD for 
client-facing derivative trades; (2) updating the risk weights 
applicable to a clearing member FDIC-supervised institution's exposures 
when the clearing member FDIC-supervised institution guarantees QCCP 
performance; (3) permitting clearing member FDIC-supervised 
institutions to choose from one of two approaches for determining the 
capital requirement for exposures to default fund contributions; and 
(4) updating the CEM formula to recognize netting to a greater extent 
for purposes of calculating its risk-weighted asset amount for default 
fund contributions.
---------------------------------------------------------------------------

    \180\ See Table 20 in section VIII.E of this preamble. 
Consistent with the scaling factor for the CEM in Table 20, an 
advanced approaches FDIC-supervised institution may reduce the 
margin period of risk when using the IMM to no shorter than 5 days.
---------------------------------------------------------------------------

    Additionally, changes in response to comments received on the 
proposal, as discussed in detail in section VIII.E of this preamble 
with respect to cleared transactions in the standardized approach, are 
also reflected in the interim final rule for advanced approaches. FDIC-
supervised institutions seeking more information on the changes 
relating to the material elements of the BCBS CCP interim framework and 
the comments received should refer to section VIII.E of this preamble.
6. Stress Period for Own Estimates
    During the recent financial crisis, increased volatility in the 
value of collateral led to higher counterparty exposures than estimated 
by banking organizations. Under the collateral haircut approach in the 
advanced approaches interim final rule, consistent with the proposal, 
an FDIC-supervised institution that receives prior approval from the 
FDIC may calculate market price and foreign exchange volatility using 
own internal estimates. In response to the increased volatility 
experienced during the crisis, however, the interim final rule modifies 
the quantitative standards for approval by requiring FDIC-supervised 
institutions to base own internal estimates of haircuts on a historical 
observation period that reflects a continuous 12-month period of 
significant financial stress appropriate to the security or category of 
securities. As described in section VIII.F of this preamble with 
respect to the standardized approach, an FDIC-supervised institution is 
also required to have policies and procedures that describe how it 
determines the period of significant financial stress used to calculate 
the FDIC-supervised institution's own internal estimates, and must be 
able to provide empirical support for the period used. To ensure an 
appropriate level of conservativeness, in certain circumstances the 
FDIC may require an FDIC-supervised institution to use a different 
period of significant financial stress in the calculation of own 
internal estimates for haircuts. The FDIC is adopting this aspect of 
the proposal without change.

B. Removal of Credit Ratings

    Consistent with the proposed rule and section 939A of the Dodd-
Frank Act, the interim final rule includes a number of changes to 
definitions in the advanced approaches rule that currently reference 
credit ratings.\181\ These changes are consistent with the alternative 
standards included in the Standardized Approach and alternative 
standards that already have been implemented in the FDIC's market risk 
rule. In addition, the interim final rule includes necessary changes to 
the hierarchy for risk weighting securitization exposures necessitated 
by the removal of the ratings-based approach, as described further 
below.
---------------------------------------------------------------------------

    \181\ See 76 FR 79380 (Dec. 21, 2011).
---------------------------------------------------------------------------

    In certain instances, the interim final rule uses an ``investment 
grade'' standard that does not rely on credit ratings. Under the 
interim final rule and consistent with the market risk rule, investment 
grade means that the entity to which the FDIC-supervised institution is 
exposed through a loan or security, or the reference entity with 
respect to a credit derivative, has adequate capacity to meet financial 
commitments for the projected life of the asset or exposure. Such an 
entity or reference entity has adequate capacity to meet financial 
commitments if the risk of its default is low and the full and timely 
repayment of principal and interest is expected.
    The FDIC is largely finalizing the proposed alternatives to ratings 
as proposed. Consistent with the proposal, the FDIC is retaining the 
standards used to calculate the PFE for derivative contracts (as set 
forth in Table 2 of the interim final rule), which are based in part on 
whether the counterparty satisfies the definition of investment grade 
under the interim final rule. The FDIC is also finalizing as proposed 
the term ``eligible double default guarantor,'' which is used for 
purposes of determining whether an FDIC-supervised institution may 
recognize a guarantee or credit derivative under the credit risk 
mitigation framework. In addition, the FDIC is finalizing the proposed 
requirements for qualifying operational risk mitigants, which among 
other criteria, must be provided by an unaffiliated company that the 
FDIC-supervised institution deems to have strong capacity to meet its 
claims payment obligations and the obligor rating category to which the 
FDIC-supervised institution assigns the company is assigned a PD equal 
to or less than 10 basis points.
1. Eligible Guarantor
    Previously, to be an eligible securitization guarantor under the 
advanced approaches rule, a guarantor was required to meet a number of 
criteria. For example, the guarantor must have issued and outstanding 
an unsecured long-term debt security without credit enhancement that 
has a long-term applicable external rating in one of the three highest 
investment-grade rating categories. The interim final rule replaces the 
term ``eligible securitization guarantor'' with the term ``eligible 
guarantor,'' which includes certain entities that have issued and 
outstanding unsecured debt securities without credit enhancement that 
are investment grade. Comments and modifications to the definition of 
eligible guarantor are discussed below and in section VIII.F of this 
preamble.
2. Money Market Fund Approach
    Previously, under the money market fund approach in the advanced 
approaches rule, banking organizations were permitted to assign a 7 
percent risk weight to exposures to money market funds that were 
subject to SEC rule 2a-7 and that had an applicable external rating in 
the highest investment grade rating category. The proposed rule 
eliminated the money market fund approach. Commenters stated that the 
elimination of the existing 7 percent risk weight for equity exposures 
to money market funds would result in an overly stringent treatment for 
those exposures under the remaining look-through approaches. However, 
during the recent financial crisis, several money market funds 
demonstrated elevated credit risk that is not consistent with a low 7 
percent risk weight. Accordingly, the FDIC believes it is appropriate 
to eliminate the preferential risk weight for money market fund 
investments. As a result of the changes, an FDIC-supervised institution 
must use one of the three alternative approaches under section 154 of 
the interim final rule to determine the risk weight for its exposures 
to a money market fund.

[[Page 55458]]

3. Modified Look-Through Approaches for Equity Exposures to Investment 
Funds
    Under the proposal, risk weights for equity exposures under the 
simple modified look-through approach would have been based on the 
highest risk weight assigned to the exposure under the standardized 
approach (subpart D) based on the investment limits in the fund's 
prospectus, partnership agreement, or similar contract that defines the 
fund's permissible investments. As discussed in the preamble regarding 
the standardized approach, commenters expressed concerns regarding 
their ability to implement the look-through approaches for investment 
funds that hold securitization exposures. However, the FDIC believes 
that FDIC-supervised institutions should be aware of the nature of the 
investments in a fund in which the organization invests. To the extent 
that information is not available, the treatment in the interim final 
rule will create incentives for FDIC-supervised institutions to obtain 
the information necessary to compute risk-based capital requirements 
under the approach. These incentives are consistent with the FDIC's 
supervisory aim that FDIC-supervised institutions have sufficient 
understanding of the characteristics and risks of their investments.

C. Revisions to the Treatment of Securitization Exposures

1. Definitions
    As discussed in section VIII.H of this preamble with respect to the 
standardized approach, the proposal introduced a new definition for 
resecuritization exposures consistent with the 2009 Enhancements and 
broadened the definition of a securitization exposure. In addition, the 
agencies proposed to amend the existing definition of traditional 
securitization in order to exclude certain types of investment firms 
from treatment under the securitization framework. Consistent with the 
approach taken with respect to the standardized approach, the proposed 
definitions under the securitization framework in the advanced approach 
are largely included in the interim final rule as proposed, except for 
changes described below. Banking organizations should refer to part 
VIII.H of this preamble for further discussion of these comments.
    In response to the proposed definition of traditional 
securitization, commenters generally agreed with the proposed 
exemptions from the definition and requested that the agencies provide 
exemptions for exposures to a broader set of investment firms, such as 
pension funds operated by state and local governments. In view of the 
comments regarding pension funds, the interim final rule, as described 
in part VIII.H of this preamble, excludes from the definition of 
traditional securitization a ``governmental plan'' (as defined in 29 
U.S.C. 1002(32)) that complies with the tax deferral qualification 
requirements provided in the Internal Revenue Code. In response to the 
proposed definition of resecuritization, commenters requested 
clarification regarding its potential scope of application to exposures 
that they believed should not be considered resecuritizations. In 
response, the FDIC has amended the definition of resecuritization by 
excluding securitizations that feature re-tranching of a single 
exposure. In addition, the FDIC notes that for purposes of the interim 
final rule, a resecuritization does not include pass-through securities 
that have been pooled together and effectively re-issued as tranched 
securities. This is because the pass-through securities do not tranche 
credit protection and, as a result, are not considered securitization 
exposures under the interim final rule.
    Previously, under the advanced approaches rule issued in 2007, the 
definition of eligible securitization guarantor included, among other 
entities, any entity (other than a securitization SPE) that has issued 
and has outstanding an unsecured long-term debt security without credit 
enhancement that has a long-term applicable external rating in one of 
the three highest investment-grade rating categories, or has a PD 
assigned by the banking organization that is lower than or equal to the 
PD associated with a long-term external rating in the third highest 
investment-grade category. The interim final rule removes the existing 
references to ratings from the definition of an eligible guarantor (the 
new term for an eligible securitization guarantor) and finalizes the 
requirements as proposed, as described in section VIII.F of this 
preamble.
    During the recent financial crisis, certain guarantors of 
securitization exposures had difficulty honoring those guarantees as 
the financial condition of the guarantors deteriorated at the same time 
as the guaranteed exposures experienced losses. Consistent with the 
proposal, a guarantor is not an eligible guarantor under the interim 
final rule if the guarantor's creditworthiness is positively correlated 
with the credit risk of the exposures for which it has provided 
guarantees. In addition, insurance companies engaged predominately in 
the business of providing credit protection are not eligible 
guarantors. Further discussion can be found in section VIII.F of this 
preamble.
2. Operational Criteria for Recognizing Risk Transference in 
Traditional Securitizations
    The proposal outlined certain operational requirements for 
traditional securitizations that had to be met in order to apply the 
securitization framework. Consistent with the standardized approach as 
discussed in section VIII.H of this preamble, the interim final rule 
includes the operational criteria for recognizing risk transference in 
traditional securitizations largely as proposed.
3. The Hierarchy of Approaches
    Consistent with section 939A of the Dodd-Frank Act, the proposed 
rule removed the ratings-based approach (RBA) and internal assessment 
approach for securitization exposures. The interim final rule includes 
the hierarchy largely as proposed. Under the interim final rule, the 
hierarchy for securitization exposures is as follows:
    (1) An FDIC-supervised institution is required to deduct from 
common equity tier 1 capital any after-tax gain-on-sale resulting from 
a securitization and apply a 1,250 percent risk weight to the portion 
of a CEIO that does not constitute after-tax gain-on-sale.
    (2) If a securitization exposure does not require deduction, an 
FDIC-supervised institution is required to assign a risk weight to the 
securitization exposure using the SFA. The FDIC expects FDIC-supervised 
institutions to use the SFA rather than the SSFA in all instances where 
data to calculate the SFA is available.
    (3) If the FDIC-supervised institution cannot apply the SFA because 
not all the relevant qualification criteria are met, it is allowed to 
apply the SSFA. An FDIC-supervised institution should be able to 
explain and justify (for example, based on data availability) to the 
FDIC any instances in which the FDIC-supervised institution uses the 
SSFA rather than the SFA for its securitization exposures.
    The SSFA, described in detail in part VIII.H of this preamble, is 
similar in construct and function to the SFA. An FDIC-supervised 
institution needs several inputs to calculate the SSFA. The first input 
is the weighted-average capital requirement calculated under the 
standardized approach that applies to the underlying exposures as if 
they are held directly by the FDIC-supervised

[[Page 55459]]

institution. The second and third inputs indicate the position's level 
of subordination and relative size within the securitization. The 
fourth input is the level of delinquencies experienced on the 
underlying exposures. An FDIC-supervised institution must apply the 
hierarchy of approaches in section 142 of this interim final rule to 
determine which approach it applies to a securitization exposure. The 
SSFA is included in this interim final rule as proposed, with the 
exception of some modifications to the delinquency parameter, as 
discussed in part VIII.H of this preamble.
4. Guarantees and Credit Derivatives Referencing a Securitization 
Exposure
    The current advanced approaches rule includes methods for 
calculating risk-weighted assets for n^th-to-default credit 
derivatives, including first-to-default credit derivatives and second-
or-subsequent-to-default credit derivatives.\182\ The current advanced 
approaches rule, however, does not specify how to treat guarantees or 
credit derivatives (other than n^th-to-default credit 
derivatives) purchased or sold that reference a securitization 
exposure. Accordingly, the proposal included specific treatment for 
credit protection purchased or provided in the form of a guarantee or 
credit derivative (other than an n^th-to-default credit 
derivative) that references a securitization exposure.
---------------------------------------------------------------------------

    \182\ N^th-to-default credit derivative means a credit 
derivative that provides credit protection only for the 
n^th-defaulting reference exposure in a group of reference 
exposures. See 12 CFR part 325, appendix D, section 42(l) (state 
nonmember banks), and 12 CFR part 390, subpart Z, appendix A, 
section 42(l) (state savings associations).
---------------------------------------------------------------------------

    For a guarantee or credit derivative (other than an n^th-
to-default credit derivative) where the FDIC-supervised institution has 
provided protection, the interim final rule requires an FDIC-supervised 
institution providing credit protection to determine the risk-based 
capital requirement for the guarantee or credit derivative as if it 
directly holds the portion of the reference exposure covered by the 
guarantee or credit derivative. The FDIC-supervised institution 
calculates its risk-based capital requirement for the guarantee or 
credit derivative by applying either (1) the SFA as provided in section 
324.143 of the interim final rule to the reference exposure if the 
FDIC-supervised institution and the reference exposure qualify for the 
SFA; or (2) the SSFA as provided in section 324.144 of the interim 
final rule. If the guarantee or credit derivative and the reference 
securitization exposure do not qualify for the SFA, or the SSFA, the 
FDIC-supervised institution is required to assign a 1,250 percent risk 
weight to the notional amount of protection provided under the 
guarantee or credit derivative.
    The interim final rule also clarifies how an FDIC-supervised 
institution may recognize a guarantee or credit derivative (other than 
an n^th-to-default credit derivative) purchased as a credit 
risk mitigant for a securitization exposure held by the FDIC-supervised 
institution. An FDIC-supervised institution that purchases an OTC 
credit derivative (other than an n^th-to-default credit 
derivative) that is recognized as a credit risk mitigant for a 
securitization exposure that is not a covered position under the market 
risk rule is not required to compute a separate counterparty credit 
risk capital requirement provided that the FDIC-supervised institution 
does so consistently for all such credit derivatives. The FDIC-
supervised institution must either include all or exclude all such 
credit derivatives that are subject to a qualifying master netting 
agreement from any measure used to determine counterparty credit risk 
exposure to all relevant counterparties for risk-based capital 
purposes. If an FDIC-supervised institution cannot, or chooses not to, 
recognize a credit derivative that is a securitization exposure as a 
credit risk mitigant, the FDIC-supervised institution must determine 
the exposure amount of the credit derivative under the treatment for 
OTC derivatives in section 324.132. If the FDIC-supervised institution 
purchases the credit protection from a counterparty that is a 
securitization, the FDIC-supervised institution must determine the risk 
weight for counterparty credit risk according to the securitization 
framework. If the FDIC-supervised institution purchases credit 
protection from a counterparty that is not a securitization, the FDIC-
supervised institution must determine the risk weight for counterparty 
credit risk according to general risk weights under section 324.131.
5. Due Diligence Requirements for Securitization Exposures
    As the recent financial crisis unfolded, weaknesses in exposures 
underlying securitizations became apparent and resulted in NRSROs 
downgrading many securitization exposures held by banking 
organizations. The agencies found that many banking organizations 
relied on NRSRO ratings as a proxy for the credit quality of 
securitization exposures they purchased and held without conducting 
their own sufficient independent credit analysis. As a result, some 
banking organizations did not have sufficient capital to absorb the 
losses attributable to these exposures. Accordingly, consistent with 
the 2009 Enhancements, the proposed rule introduced due diligence 
requirements that banking organizations would be required to undertake 
to use the SFA or SSFA. Comments received regarding the proposed due 
diligence requirements and the rationale for adopting the proposed 
treatment in the interim final rule are discussed in part VIII of the 
preamble.
6. N^th-to-Default Credit Derivatives
    Consistent with the proposal, the interim final rule provides that 
an FDIC-supervised institution that provides credit protection through 
an n^th-to-default derivative must assign a risk weight to 
the derivative using the SFA or the SSFA. In the case of credit 
protection sold, an FDIC-supervised institution must determine its 
exposure in the n^th-to-default credit derivative as the 
largest notional dollar amount of all the underlying exposures.
    When applying the SSFA to protection provided in the form of an 
n^th-to-default credit derivative, the attachment point 
(parameter A) is the ratio of the sum of the notional amounts of all 
underlying exposures that are subordinated to the FDIC-supervised 
institution's exposure to the total notional amount of all underlying 
exposures. For purposes of applying the SFA, parameter A is set equal 
to the credit enhancement level (L) used in the SFA formula. In the 
case of a first-to-default credit derivative, there are no underlying 
exposures that are subordinated to the FDIC-supervised institution's 
exposure. In the case of a second-or-subsequent-to default credit 
derivative, the smallest (n-1) underlying exposure(s) are subordinated 
to the FDIC-supervised institution's exposure.
    Under the SSFA, the detachment point (parameter D) is the sum of 
the attachment point and the ratio of the notional amount of the FDIC-
supervised institution's exposure to the total notional amount of the 
underlying exposures. Under the SFA, Parameter D is set to equal L plus 
the thickness of the tranche (T) under the SFA formula. An FDIC-
supervised institution that does not use the SFA or SSFA to calculate a 
risk weight for an n^th-to-default credit derivative must 
assign a risk weight of 1,250 percent to the exposure.
    For the treatment of protection purchased through a first-to-
default credit derivative, an FDIC-supervised institution must 
determine its risk-based capital requirement for the underlying

[[Page 55460]]

exposures as if the FDIC-supervised institution had synthetically 
securitized the underlying exposure with the lowest risk-based capital 
requirement and had obtained no credit risk mitigant on the other 
underlying exposures. An FDIC-supervised institution must calculate a 
risk-based capital requirement for counterparty credit risk according 
to section 132 of the interim final rule for a first-to-default credit 
derivative that does not meet the rules of recognition for guarantees 
and credit derivatives under section 324.134(b).
    For second-or-subsequent-to default credit derivatives, an FDIC-
supervised institution that obtains credit protection on a group of 
underlying exposures through a n^th-to-default credit 
derivative that meets the rules of recognition of section 324.134(b) of 
the interim final rule (other than a first-to-default credit 
derivative) is permitted to recognize the credit risk mitigation 
benefits of the derivative only if the FDIC-supervised institution also 
has obtained credit protection on the same underlying exposures in the 
form of first-through-(n-1)-to-default credit derivatives; or if n-1 of 
the underlying exposures have already defaulted. If an FDIC-supervised 
institution satisfies these requirements, the FDIC-supervised 
institution determines its risk-based capital requirement for the 
underlying exposures as if the FDIC-supervised institution had only 
synthetically securitized the underlying exposure with the 
n^th smallest risk-based capital requirement and had obtained 
no credit risk mitigant on the other underlying exposures. An FDIC-
supervised institution that does not fulfill these requirements must 
calculate a risk-based capital requirement for counterparty credit risk 
according to section 132 of the interim final rule for a 
n^th-to-default credit derivative that does not meet the 
rules of recognition of section 134(b) of the interim final rule.

D. Treatment of Exposures Subject to Deduction

    Under the current advanced approaches rule, an FDIC-supervised 
institution is required to deduct certain exposures from total capital, 
including securitization exposures such as CEIOs, low-rated 
securitization exposures, and high-risk securitization exposures 
subject to the SFA; eligible credit reserves shortfall; and certain 
failed capital markets transactions. Consistent with Basel III, the 
proposed rule required a banking organization to assign a 1,250 percent 
risk weight to many exposures that previously were deducted from 
capital.
    In the proposal, the agencies noted that such treatment would not 
be equivalent to a deduction from tier 1 capital, as the effect of a 
1,250 percent risk weight would depend on an individual banking 
organization's current risk-based capital ratios. Specifically, when a 
risk-based capital ratio (either tier 1 or total risk-based capital) 
exceeds 8.0 percent, the effect on that risk-based capital ratio of 
assigning an exposure a 1,250 percent risk weight would be more 
conservative than a deduction from total capital. The more a risk-based 
capital ratio exceeds 8.0 percent, the harsher is the effect of a 1,250 
percent risk weight on risk-based capital ratios. Commenters 
acknowledged these points and asked the agencies to replace the 1,250 
percent risk weight with the maximum risk weight that would correspond 
with deduction. Commenters also stated that the agencies should 
consider the effect of the 1,250 percent risk weight given that the 
Basel III proposals, over time, would require banking organizations to 
maintain a total risk-based capital ratio of at least 10.5 percent to 
meet the minimum required capital ratio plus the capital conservation 
buffer.
    The FDIC is finalizing the requirements as proposed, in order to 
provide for comparability in risk-weighted asset measurements across 
institutions. The FDIC did not propose to apply a 1,250 percent risk 
weight to those exposures currently deducted from tier 1 capital under 
the advanced approaches rule. For example, the agencies proposed that 
an after-tax gain-on-sale that is deducted from tier 1 under the 
advanced approaches rule be deducted from common equity tier 1 under 
the proposed rule. In this regard, the agencies also clarified that any 
asset deducted from common equity tier 1, tier 1, or tier 2 capital 
under the advanced approaches rule would not be included in the measure 
of risk-weighted assets under the advanced approaches rule. The interim 
final rule includes these requirements as proposed.

E. Technical Amendments to the Advanced Approaches Rule

    In the proposed rule, the agencies introduced a number of 
amendments to the advanced approaches rule that were designed to refine 
and clarify certain aspects of the rule's implementation. The interim 
final rule includes each of these technical amendments as proposed. 
Additionally, in the interim final rule, the FDIC is amending the 
treatment of defaulted exposures that are covered by government 
guarantees. Each of these revisions is described below.
1. Eligible Guarantees and Contingent U.S. Government Guarantees
    In order to be recognized as an eligible guarantee under the 
advanced approaches rule, the guarantee, among other criteria, must be 
unconditional. The FDIC notes that this definition would exclude 
certain guarantees provided by the U.S. Government or its agencies that 
would require some action on the part of the FDIC-supervised 
institution or some other third party. However, based on their risk 
characteristics, the FDIC believes that these guarantees should be 
recognized as eligible guarantees. Therefore, the FDIC is amending the 
definition of eligible guarantee so that it explicitly includes a 
contingent obligation of the U.S. Government or an agency of the U.S. 
Government, the validity of which is dependent on some affirmative 
action on the part of the beneficiary or a third party (for example, 
servicing requirements) irrespective of whether such contingent 
obligation is otherwise considered a conditional guarantee.
    Related to the change to the eligible guarantee definition, the 
FDIC has amended the provision in the advanced approaches rule 
pertaining to the 10 percent floor on the LGD for residential mortgage 
exposures. Currently, the rule provides that the LGD for each segment 
of residential mortgage exposures (other than segments of residential 
mortgage exposures for which all or substantially all of the principal 
of each exposure is directly and unconditionally guaranteed by the full 
faith and credit of a sovereign entity) may not be less than 10 
percent. The provision would therefore require a 10 percent LGD floor 
on segments of residential mortgage exposures for which all or 
substantially all of the principal are conditionally guaranteed by the 
U.S. government. The interim final rule allows an exception from the 10 
percent floor in such cases.
2. Calculation of Foreign Exposures for Applicability of the Advanced 
Approaches--Changes to Federal Financial Institutions Economic Council 
009
    The FDIC is revising the advanced approaches rule to comport with 
changes to the FFIEC's Country Exposure Report (FFIEC 009) that 
occurred after the issuance of the advanced approaches rule in 2007. 
Specifically, the FFIEC 009 replaced the term ``local country claims'' 
with the term ``foreign-office claims.'' Accordingly, the FDIC has made 
a similar change under section 100, the

[[Page 55461]]

section of the interim final rule that makes the rules applicable to an 
FDIC-supervised institution that has consolidated total on-balance 
sheet foreign exposures equal to $10 billion or more. As a result, to 
determine total on-balance sheet foreign exposure, an FDIC-supervised 
institution sums its adjusted cross-border claims, local country 
claims, and cross-border revaluation gains calculated in accordance 
with FFIEC 009. Adjusted cross-border claims equal total cross-border 
claims less claims with the head office or guarantor located in another 
country, plus redistributed guaranteed amounts to the country of the 
head office or guarantor.
3. Applicability of the Interim Final Rule
    The FDIC believes that once an FDIC-supervised institution reaches 
the asset size or level of foreign activity that causes it to become 
subject to the advanced approaches that it should remain subject to the 
advanced approaches rule even if it subsequently drops below the asset 
or foreign exposure threshold. The FDIC believes that it is appropriate 
for it to evaluate whether an FDIC-supervised institution's business or 
risk exposure has changed after dropping below the thresholds in a 
manner that it would no longer be appropriate for the FDIC-supervised 
institution to be subject to the advanced approaches. As a result, 
consistent with the proposal, the interim final rule clarifies that 
once an FDIC-supervised institution is subject to the advanced 
approaches rule under subpart E, it remains subject to subpart E until 
the FDIC determines that application of the rule would not be 
appropriate in light of the FDIC-supervised institution's asset size, 
level of complexity, risk profile, or scope of operations. In 
connection with the consideration of an FDIC-supervised institution's 
level of complexity, risk profile, and scope of operations, the FDIC 
also may consider an FDIC-supervised institution's interconnectedness 
and other relevant risk-related factors.
4. Change to the Definition of Probability of Default Related to 
Seasoning
    The advanced approaches rule requires an upward adjustment to 
estimated PD for segments of retail exposures for which seasoning 
effects are material. The rationale underlying this requirement was the 
seasoning pattern displayed by some types of retail exposures--that is, 
the exposures have very low default rates in their first year, rising 
default rates in the next few years, and declining default rates for 
the remainder of their terms. Because of the one-year internal ratings-
based (IRB) default horizon, capital based on the very low PDs for 
newly originated, or ``unseasoned,'' loans would be insufficient to 
cover the elevated risk in subsequent years. The upward seasoning 
adjustment to PD was designed to ensure that banking organizations 
would have sufficient capital when default rates for such segments rose 
predictably beginning in year two.
    Since the issuance of the advanced approaches rule, the FDIC has 
found the seasoning provision to be problematic. First, it is difficult 
to ensure consistency across institutions, given that there is no 
guidance or criteria for determining when seasoning is ``material'' or 
what magnitude of upward adjustment to PD is ``appropriate.'' Second, 
the advanced approaches rule lacks flexibility by requiring an upward 
PD adjustment whenever there is a significant relationship between a 
segment's default rate and its age (since origination). For example, 
the upward PD adjustment may be inappropriate in cases where (1) the 
outstanding balance of a segment is falling faster over time (due to 
defaults and prepayments) than the default rate is rising; (2) the age 
(since origination) distribution of a portfolio is stable over time; or 
(3) where the loans in a segment are intended, with a high degree of 
certainty, to be sold or securitized within a short time period.
    Therefore, consistent with the proposal, the FDIC is deleting the 
regulatory seasoning provision and will instead consider seasoning when 
evaluating an FDIC-supervised institution's assessment of its capital 
adequacy from a supervisory perspective. In addition to the 
difficulties in applying the advanced approaches rule's seasoning 
requirements discussed above, the FDIC believes that seasoning is more 
appropriately considered from a supervisory perspective. First, 
seasoning involves the determination of minimum required capital for a 
period in excess of the 12-month time horizon implicit in the advanced 
approaches risk-based capital ratio calculations. It thus falls more 
appropriately under longer-term capital planning and capital adequacy, 
which are major focal points of the internal capital adequacy 
assessment process. Second, seasoning is a major issue only where an 
FDIC-supervised institution has a concentration of unseasoned loans. 
The risk-based capital ratios do not take concentrations of any kind 
into account; however, they are an explicit factor in the internal 
capital adequacy assessment process.
5. Cash Items in Process of Collection
    Under the current advanced approaches rule, cash items in the 
process of collection are not assigned a risk-based capital treatment 
and, as a result, are subject to a 100 percent risk weight. Under the 
interim final rule, consistent with the proposal, the FDIC is revising 
the advanced approaches rule to risk weight cash items in the process 
of collection at 20 percent of the carrying value, as the FDIC believes 
that this treatment is more commensurate with the risk of these 
exposures. A corresponding provision is included in section 324.32 of 
the interim final rule.
6. Change to the Definition of Qualifying Revolving Exposure
    The agencies proposed modifying the definition of qualifying 
revolving exposure (QRE) such that certain unsecured and 
unconditionally cancellable exposures where a banking organization 
consistently imposes in practice an upper exposure limit of $100,000 
and requires payment in full every cycle would qualify as QRE. Under 
the previous definition in the advanced approaches rule, only unsecured 
and unconditionally cancellable revolving exposures with a pre-
established maximum exposure amount of $100,000 or less (such as credit 
cards) were classified as QRE. Unsecured, unconditionally cancellable 
exposures that require payment in full and have no communicated maximum 
exposure amount (often referred to as ``charge cards'') were instead 
classified as ``other retail.'' For risk-based capital purposes, this 
classification was material and generally results in substantially 
higher minimum required capital to the extent that the exposure's asset 
value correlation (AVC) would differ if classified as QRE (where it is 
assigned an AVC of 4 percent) or other retail (where AVC varies 
inversely with through-the-cycle PD estimated at the segment level and 
can go as high as almost 16 percent for very low PD segments).
    Under the proposed definition, certain charge card products would 
qualify as QRE. Charge card exposures may be viewed as revolving in 
that there is an ability to borrow despite a requirement to pay in 
full. Commenters agreed that charge cards should be included as QRE 
because, compared to credit cards, they generally exhibit lower loss 
rates and loss volatility. Where an FDIC-supervised institution 
consistently imposes in practice an

[[Page 55462]]

upper exposure limit of $100,000 the FDIC believes that charge cards 
are more closely aligned from a risk perspective with credit cards than 
with any type of ``other retail'' exposure and is therefore amending 
the definition of QRE in order to more appropriately capture such 
products under the definition of QRE. With respect to a product with a 
balance that the borrower is required to pay in full every month, the 
exposure would qualify as QRE under the interim final rule as long as 
its balance does not in practice exceed $100,000. If the balance of an 
exposure were to exceed that amount, it would represent evidence that 
such a limit is not maintained in practice for the segment of exposures 
in which that exposure is placed for risk parameter estimation 
purposes. As a result, that segment of exposures would not qualify as 
QRE over the next 24 month period. In addition, the FDIC believes that 
the definition of QRE should be sufficiently flexible to encompass 
products with new features that were not envisioned at the time of 
finalizing the advanced approaches rule, provided, however, that the 
FDIC-supervised institution can demonstrate to the satisfaction of the 
FDIC that the performance and risk characteristics (in particular the 
volatility of loss rates over time) of the new product are consistent 
with the definition and requirements of QRE portfolios.
7. Trade-Related Letters of Credit
    In 2011, the BCBS revised the Basel II advanced internal ratings-
based approach to remove the one-year maturity floor for trade finance 
instruments. Consistent with this revision, the proposed rule specified 
that an exposure's effective maturity must be no greater than five 
years and no less than one year, except that an exposure's effective 
maturity must be no less than one day if the exposure is a trade-
related letter of credit, or if the exposure has an original maturity 
of less than one year and is not part of a banking organization's 
ongoing financing of the obligor. Commenters requested clarification on 
whether short-term self-liquidating trade finance instruments would be 
considered exempt from the one-year maturity floor, as they do not 
constitute an ongoing financing of the obligor. In addition, commenters 
stated that applying the proposed framework for AVCs to trade-related 
letters of credit would result in banking organizations maintaining 
overly conservative capital requirements in relation to the risk of 
trade finance exposures, which could reduce the availability of trade 
finance and increase the cost of providing trade finance for businesses 
globally. As a result, commenters requested that trade finance 
exposures be assigned a separate AVC that would better reflect the 
product's low default rates and low correlation.
    The FDIC believes that, in light of the removal of the one-year 
maturity floor, the proposed requirements for trade-related letters of 
credit are appropriate without a separate AVC. The interim final rule 
includes the treatment of trade-related letters of credit as proposed. 
Under the interim final rule, trade finance exposures that meet the 
stated requirements above may be assigned a maturity lower than one 
year. Section 324.32 of the interim final rule includes a provision 
that similarly recognizes the low default rates of these exposures.
8. Defaulted Exposures That Are Guaranteed by the U.S. Government
    Under the current advanced approaches rule, a banking organization 
is required to apply an 8.0 percent capital requirement to the EAD for 
each wholesale exposure to a defaulted obligor and for each segment of 
defaulted retail exposures. The advanced approaches rule does not 
recognize yet-to-be paid protection in the form of guarantees or 
insurance on defaulted exposures. For example, under certain programs, 
a U.S. government agency that provides a guarantee or insurance is not 
required to pay on claims on exposures to defaulted obligors or 
segments of defaulted retail exposures until the collateral is sold. 
The time period from default to sale of collateral can be significant 
and the exposure amount covered by such U.S. sovereign guarantees or 
insurance can be substantial.
    In order to make the treatment for exposures to defaulted obligors 
and segments of defaulted retail exposures more risk sensitive, the 
FDIC has decided to amend the advanced approaches rule by assigning a 
1.6 percent capital requirement to the portion of the EAD for each 
wholesale exposure to a defaulted obligor and each segment of defaulted 
retail exposures that is covered by an eligible guarantee from the U.S. 
government. The portion of the exposure amount for each wholesale 
exposure to a defaulted obligor and each segment of defaulted retail 
exposures not covered by an eligible guarantee from the U.S. government 
continues to be assigned an 8.0 percent capital requirement.
9. Stable Value Wraps
    The FDIC is clarifying that an FDIC-supervised institution that 
provides stable value protection, such as through a stable value wrap 
that has provisions and conditions that minimize the wrap's exposure to 
credit risk of the underlying assets in the fund, must treat the 
exposure as if it were an equity derivative on an investment fund and 
determine the adjusted carrying value of the exposure as the sum of the 
adjusted carrying values of any on-balance sheet asset component 
determined according to section 324.151(b)(1) and the off-balance sheet 
component determined according to section 324.151(b)(2). That is, the 
adjusted carrying value is the effective notional principal amount of 
the exposure, the size of which is equivalent to a hypothetical on-
balance sheet position in the underlying equity instrument that would 
evidence the same change in fair value (measured in dollars) given a 
small change in the price of the underlying equity instrument without 
subtracting the adjusted carrying value of the on-balance sheet 
component of the exposure as calculated under the same paragraph. Risk-
weighted assets for such an exposure is determined by applying one of 
the three look-through approaches as provided in section 324.154 of the 
interim final rule.
10. Treatment of Pre-Sold Construction Loans and Multi-Family 
Residential Loans
    The interim final rule assigns either a 50 percent or a 100 percent 
risk weight to certain one-to-four family residential pre-sold 
construction loans under the advanced approaches rule, consistent with 
provisions of the RTCRRI Act.\183\ This treatment is consistent with 
the treatment under the general risk-based capital rules and under the 
standardized approach.
---------------------------------------------------------------------------

    \183\ See 12 U.S.C. 1831n, note.
---------------------------------------------------------------------------

F. Pillar 3 Disclosures

1. Frequency and Timeliness of Disclosures
    For purposes of the interim final rule, an FDIC-supervised 
institution is required to provide certain qualitative and quantitative 
public disclosures on a quarterly, or in some cases, annual basis, and 
these disclosures must be ``timely.'' Qualitative disclosures that 
provide a general summary of an FDIC-supervised institution's risk-
management objectives and policies, reporting system, and definitions 
may be disclosed annually after the end of the fourth calendar quarter, 
provided any significant changes are disclosed in the interim. In the 
preamble to the advanced approaches rule, the FDIC

[[Page 55463]]

indicated that quarterly disclosures would be timely if they were 
provided within 45 days after calendar quarter-end. The preamble did 
not specify expectations regarding annual disclosures.
    The FDIC acknowledges that timing of disclosures required under the 
federal banking laws may not always coincide with the timing of 
disclosures under other federal laws, including federal securities laws 
and their implementing regulations by the SEC. The FDIC also indicated 
that an FDIC-supervised institution may use disclosures made pursuant 
to SEC, regulatory reporting, and other disclosure requirements to help 
meet its public disclosure requirements under the advanced approaches 
rule. For calendar quarters that do not correspond to fiscal year end, 
the FDIC considers those disclosures that are made within 45 days of 
the end of the calendar quarter (or within 60 days for the limited 
purpose of the FDIC-supervised institution's first reporting period in 
which it is subject to the public disclosure requirements) as timely. 
In general, where an FDIC-supervised institution's fiscal year-end 
coincides with the end of a calendar quarter, the FDIC considers 
qualitative and quantitative disclosures to be timely if they are made 
no later than the applicable SEC disclosure deadline for the 
corresponding Form 10-K annual report. In cases where an institution's 
fiscal year end does not coincide with the end of a calendar quarter, 
the FDIC would consider the timeliness of disclosures on a case-by-case 
basis. In some cases, management may determine that a significant 
change has occurred, such that the most recent reported amounts do not 
reflect the FDIC-supervised institution's capital adequacy and risk 
profile. In those cases, an FDIC-supervised institution needs to 
disclose the general nature of these changes and briefly describe how 
they are likely to affect public disclosures going forward. An FDIC-
supervised institution should make these interim disclosures as soon as 
practicable after the determination that a significant change has 
occurred.
2. Enhanced Securitization Disclosure Requirements
    In view of the significant market uncertainty during the recent 
financial crisis caused by the lack of disclosures regarding banking 
organizations' securitization-related exposures, the FDIC believes that 
enhanced disclosure requirements are appropriate. Consistent with the 
disclosures introduced by the 2009 Enhancements, the proposal amended 
the qualitative section for Table 9 disclosures (Securitization) under 
section 324.173 to include the following:
    [ssquf] The nature of the risks inherent in a banking 
organization's securitized assets,
    [ssquf] A description of the policies that monitor changes in the 
credit and market risk of a banking organization's securitization 
exposures,
    [ssquf] A description of a banking organization's policy regarding 
the use of credit risk mitigation for securitization exposures,
    [ssquf] A list of the special purpose entities a banking 
organization uses to securitize exposures and the affiliated entities 
that a bank manages or advises and that invest in securitization 
exposures or the referenced SPEs, and
    [ssquf] A summary of the banking organization's accounting policies 
for securitization activities.
    To the extent possible, the FDIC is implementing the disclosure 
requirements included in the 2009 Enhancements in the interim final 
rule. However, consistent with section 939A of the Dodd-Frank Act, the 
tables do not include those disclosure requirements that are tied to 
the use of ratings.
3. Equity Holdings That Are Not Covered Positions
    The current advanced approaches rule requires banking organizations 
to include in their public disclosures a discussion of ``important 
policies covering the valuation of and accounting for equity holdings 
in the banking book.'' Since ``banking book'' is not a defined term 
under the interim final rule, the FDIC refers to such exposures as 
equity holdings that are not covered positions in the interim final 
rule.

XII. Market Risk Rule

    On August 30, 2012, the agencies revised their respective market 
risk rules to better capture positions subject to market risk, reduce 
pro-cyclicality in market risk capital requirements, enhance the rule's 
sensitivity to risks that were not adequately captured under the prior 
regulatory measurement methodologies, and increase transparency through 
enhanced disclosures.\184\
---------------------------------------------------------------------------

    \184\ See 77 FR 53060 (August 30, 2012).
---------------------------------------------------------------------------

    As noted in the introduction of this preamble, the agencies 
proposed to expand the scope of the market risk rule to include state 
savings associations, and to codify the market risk rule in a manner 
similar to the other regulatory capital rules in the three proposals. 
In the interim final rule, consistent with the proposal, the FDIC has 
also merged definitions and made appropriate technical changes.
    As a general matter, an FDIC-supervised institution that is subject 
to the market risk rule will continue to exclude covered positions 
(other than certain foreign exchange and commodities positions) when 
calculating its risk-weighted assets under the other risk-based capital 
rules. Instead, the FDIC-supervised institution must determine an 
appropriate capital requirement for such positions using the 
methodologies set forth in the final market risk rule. The banking 
organization then must multiply its market risk capital requirement by 
12.5 to determine a risk-weighted asset amount for its market risk 
exposures and include that amount in its standardized approach risk-
weighted assets and for an advanced approaches banking organization's 
advanced approaches risk-weighted assets.
    The market risk rule is designed to determine capital requirements 
for trading assets based on general and specific market risk associated 
with these assets. General market risk is the risk of loss in the 
market value of positions resulting from broad market movements, such 
as changes in the general level of interest rates, equity prices, 
foreign exchange rates, or commodity prices. Specific market risk is 
the risk of loss from changes in the fair value of a position due to 
factors other than broad market movements, including event risk 
(changes in market price due to unexpected events specific to a 
particular obligor or position) and default risk.
    The agencies proposed to apply the market risk rule to state 
savings associations. Consistent with the proposal, the FDIC in this 
interim final rule has expanded the scope of the market risk rule to 
state savings associations that meet the stated thresholds. The market 
risk rule applies to any state savings association whose trading 
activity (the gross sum of its trading assets and trading liabilities) 
is equal to 10 percent or more of its total assets or $1 billion or 
more. The FDIC retains the authority to apply its respective market 
risk rule to any entity under its jurisdiction, regardless of whether 
it meets either of the thresholds described above, if the agency deems 
it necessary or appropriate for safe and sound banking practices.
    Application of the market risk rule to all banking organizations 
with material exposure to market risk is particularly important because 
of banking organizations' increased exposure to

[[Page 55464]]

traded credit products, such as CDSs, asset-backed securities and other 
structured products, as well as other less liquid products. In fact, 
many of the August 2012 revisions to the market risk rule were made in 
response to concerns that arose during the recent financial crisis when 
banking organizations holding certain trading assets suffered 
substantial losses. For example, in addition to a market risk capital 
requirement to account for general market risk, the revised rules apply 
more conservative standardized specific risk capital requirements to 
most securitization positions and implement an additional incremental 
risk capital requirement for a banking organization that models 
specific risk for one or more portfolios of debt or, if applicable, 
equity positions. Additionally, to address concerns about the 
appropriate treatment of traded positions that have limited price 
transparency, a banking organization subject to the market risk rule 
must have a well-defined valuation process for all covered positions.
    The FDIC received comments on the market risk rule. One commenter 
asserted that the agencies should establish standardized capital 
requirements for trading operations rather than relying on risk 
modeling techniques because there is no way for regulators or market 
participants to judge whether bank calculations of market risk are 
meaningful. Regarding the use of standardized requirements for trading 
operations rather than reliance on risk modeling, banking 
organizations' models are subject to initial approval and ongoing 
review under the market risk rule. The FDIC is aware that the BCBS is 
considering, among other options, greater use of standardized 
approaches for market risk. The FDIC would consider modifications to 
the international market risk framework when and if it is revised.
    Another commenter asserted that the effective date for application 
of the market risk rule (and the advanced approaches rule) to SLHCs 
should be deferred until at least July 21, 2015. This commenter also 
asserted that SLHCs with substantial insurance operations should be 
exempt from the advanced approaches and market risk rules if their 
subsidiary bank or savings association comprised less than 5 percent or 
10 percent of the total assets of the SLHC. As a general matter, 
savings associations and SLHCs do not engage in trading activity to a 
substantial degree. However, the FDIC believes that any state savings 
association whose trading activity grows to the extent that it meets 
either of the thresholds should hold capital commensurate with the risk 
of the trading activity and should have in place the prudential risk-
management systems and processes required under the market risk rule. 
Therefore, it is appropriate to expand the scope of the market risk 
rule to apply to state savings associations as of January 1, 2015.
    Another commenter asserted that regulations should increase the 
cost of excessive use of short-term borrowing to fund long maturity 
assets. The FDIC is considering the implications of short-term funding 
from several perspectives outside of the regulatory capital framework. 
Specifically, the FDIC expects short-term funding risks would be a 
potential area of focus in forthcoming Basel III liquidity and enhanced 
prudential standards regulations.
    The FDIC also has adopted conforming changes to certain elements of 
the market risk rule to reflect changes that are being made to other 
aspects of the regulatory capital framework. These changes are designed 
to correspond to the changes to the CRC references and treatment of 
securitization exposures under subparts D and E of the interim final 
rule, which are discussed more fully in the standardized and advanced 
approaches sections. See sections VIII.B and XII.C of this preamble for 
a discussion of these changes.
    More specifically, the market risk rule is being amended to 
incorporate a revised definition of parameter W in the SSFA. The 
agencies received comment on the existing definition, which assessed a 
capital penalty if borrowers exercised contractual rights to defer 
payment of principal or interest for more than 90 days on exposures 
underlying a securitization. In response to commenters, the FDIC is 
modifying this definition to exclude all loans issued under Federally-
guaranteed student loan programs, and certain consumer loans (including 
non-Federally guaranteed student loans) from being included in this 
component of parameter W.
    The FDIC has made a technical amendment to the market risk rule 
with respect to the covered position definition. Previously, the 
definition of covered position excluded equity positions that are not 
publicly traded. The FDIC has refined this exception such that a 
covered position may include a position in a non-publicly traded 
investment company, as defined in and registered with the SEC under the 
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) (or its non-
U.S. equivalent), provided that all the underlying equities held by the 
investment company are publicly traded. The FDIC believes that a 
``look-through'' approach is appropriate in these circumstances because 
of the liquidity of the underlying positions, so long as the other 
conditions of a covered position are satisfied.
    The FDIC also has clarified where an FDIC-supervised institution 
subject to the market risk rule must make its required market risk 
disclosures and require that these disclosures be timely. The FDIC-
supervised institution must provide its quantitative disclosures after 
each calendar quarter. In addition, the interim final rule clarifies 
that an FDIC-supervised institution must provide its qualitative 
disclosures at least annually, after the end of the fourth calendar 
quarter, provided any significant changes are disclosed in the interim.
    The FDIC acknowledges that the timing of disclosures under the 
federal banking laws may not always coincide with the timing of 
disclosures required under other federal laws, including disclosures 
required under the federal securities laws and their implementing 
regulations by the SEC. For calendar quarters that do not correspond to 
fiscal year end, the FDIC considers those disclosures that are made 
within 45 days of the end of the calendar quarter (or within 60 days 
for the limited purpose of the FDIC-supervised institution's first 
reporting period in which it is subject to the rule) as timely. In 
general, where an FDIC-supervised institution's fiscal year-end 
coincides with the end of a calendar quarter, the FDIC considers 
qualitative and quantitative disclosures to be timely if they are made 
no later than the applicable SEC disclosure deadline for the 
corresponding Form 10-K annual report. In cases where an institution's 
fiscal year end does not coincide with the end of a calendar quarter, 
the FDIC would consider the timeliness of disclosures on a case-by-case 
basis. In some cases, management may determine that a significant 
change has occurred, such that the most recent reported amounts do not 
reflect the FDIC-supervised institution's capital adequacy and risk 
profile. In those cases, an FDIC-supervised institution needs to 
disclose the general nature of these changes and briefly describe how 
they are likely to affect public disclosures going forward. An FDIC-
supervised institution should make these interim disclosures as soon as 
practicable after the determination that a significant change has 
occurred.
    The interim final rule also clarifies that an FDIC-supervised 
institution's management may provide all of the disclosures required by 
the market risk

[[Page 55465]]

rule in one place on the FDIC-supervised institution's public Web site 
or may provide the disclosures in more than one public financial report 
or other regulatory reports, provided that the FDIC-supervised 
institution publicly provides a summary table specifically indicating 
the location(s) of all such disclosures.

XIII. Abbreviations

ABCP Asset-Backed Commercial Paper
ADC Acquisition, Development, or Construction
AFS Available For Sale
ALLL Allowance for Loan and Lease Losses
AOCI Accumulated Other Comprehensive Income
AVC Asset Value Correlation
BCBS Basel Committee on Banking Supervision
BCBS FAQ Basel Committee on Banking Supervision Frequently Asked 
Questions
BHC Bank Holding Company
CCF Credit Conversion Factor
CCP Central Counterparty
CDFI Community Development Financial Institution
CDS Credit Default Swap
CDSind Index Credit Default Swap
CEIO Credit-Enhancing Interest-Only Strip
CEM Current Exposure Method
CFR Code of Federal Regulations
CFPB Consumer Financial Protection Bureau
CFTC Commodity Futures Trading Commission
CPSS Committee on Payment and Settlement Systems
CRC Country Risk Classifications
CUSIP Committee on Uniform Securities Identification Procedures
CVA Credit Valuation Adjustment
DAC Deferred Acquisition Cost
DCO Derivatives Clearing Organizations
DTA Deferred Tax Asset
DTL Deferred Tax Liability
DvP Delivery-versus-Payment
E Measure of Effectiveness
EAD Exposure at Default
ECL Expected Credit Loss
EE Expected Exposure
EPE Expected Positive Exposure
ERISA Employee Retirement Income Security Act of 1974
ESOP Employee Stock Ownership Plan
FDIC Federal Deposit Insurance Corporation
FDICIA Federal Deposit Insurance Corporation Improvement Act of 1991
FFIEC Federal Financial Institutions Examination Council
FHA Federal Housing Administration
FHLB Federal Home Loan Bank
FHLMC Federal Home Loan Mortgage Corporation
FIRREA Financial Institutions, Reform, Recovery and Enforcement Act
FMU Financial Market Utility
FNMA Federal National Mortgage Association
FRFA Final Regulatory Flexibility Act
GAAP U.S. Generally Accepted Accounting Principles
GNMA Government National Mortgage Association
GSE Government-sponsored Enterprise
HAMP Home Affordable Mortgage Program
HOLA Home Owners' Loan Act
HTM Held-To-Maturity
HVCRE High-Volatility Commercial Real Estate
IFRS International Financial Reporting Standards
IMM Internal Models Methodology
IOSCO International Organization of Securities Commissions
IRB Internal Ratings-Based
IRFA Initial Regulatory Flexibility Analysis
LGD Loss Given Default
LTV Loan-to-Value Ratio
M Effective Maturity
MBS Mortgage-backed Security
MDB Multilateral Development Bank
MDI Minority Depository Institution
MHC Mutual Holding Company
MSA Mortgage Servicing Assets
NPR Notice of Proposed Rulemaking
NRSRO Nationally Recognized Statistical Rating Organization
OCC Office of the Comptroller of the Currency
OECD Organization for Economic Co-operation and Development
OMB Office of Management and Budget
OTC Over-the-Counter
OTS Office of Thrift Supervision
PCA Prompt Corrective Action
PCCR Purchased Credit Card Relationship
PD Probability of Default
PFE Potential Future Exposure
PMI Private Mortgage Insurance
PMSR Purchased Mortgage Servicing Right
PRA Paperwork Reduction Act of 1995
PSE Public Sector Entities
PvP Payment-versus-Payment
QCCP Qualifying Central Counterparty
QIS Quantitative Impact Study
QM Qualified Mortgages
QRE Qualifying Revolving Exposure
RBA Ratings-Based Approach
RBC Risk-Based Capital
REIT Real Estate Investment Trust
Re-REMIC Resecuritization of Real Estate Mortgage Investment Conduit
RFA Regulatory Flexibility Act
RTCRRI Act Resolution Trust Corporation Refinancing, Restructuring, 
and Improvement Act of 1991
RVC Ratio of Value Change
SAP Statutory Accounting Principles
SEC U.S. Securities and Exchange Commission
SFA Supervisory Formula Approach
SLHC Savings and Loan Holding Company
SPE Special Purpose Entity
SR Supervision and Regulation Letter
SRWA Simple Risk-Weight Approach
SSFA Simplified Supervisory Formula Approach
TruPS Trust Preferred Security
TruPS CDO Trust Preferred Security Collateralized Debt Obligation
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
VA Veterans Administration
VaR Value-at-Risk
VOBA Value of Business Acquired
WAM Weighted Average Maturity

XIV. Regulatory Flexibility Act

    In general, section 4 of the Regulatory Flexibility Act (5 U.S.C. 
604) (RFA) requires an agency to prepare a final regulatory flexibility 
analysis (FRFA), for a final rule unless the agency certifies that the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities (defined for purposes of the RFA 
to include banking entities with total assets of $175 million or less 
and after July 22, 2013, total assets of $500 million or less). 
Pursuant to the RFA, the agency must make the FRFA available to members 
of the public and must publish the FRFA, or a summary thereof, in the 
Federal Register. In accordance with section 4 of the RFA, the FDIC is 
publishing the following summary of its FRFA.\185\
---------------------------------------------------------------------------

    \185\ The FDIC published a summary of its initial regulatory 
flexibility analysis (IRFA) in connection with each of the proposed 
rules in accordance with Section 3(a) of the Regulatory Flexibility 
Act, 5 U.S.C. 603 (RFA). In the IRFAs provided in connection with 
the proposed rules, the FDIC requested comment on all aspects of the 
IRFAs, and, in particular, on any significant alternatives to the 
proposed rules applicable to covered small FDIC-supervised 
institutions that would minimize their impact on those entities. In 
the IRFA provided by the FDIC in connection with the advanced 
approach proposed rule, the FDIC determined that there would not be 
a significant economic impact on a substantial number of small FDIC-
supervised institutions and published a certification and a short 
explanatory statement pursuant to section 605(b) of the RFA.
---------------------------------------------------------------------------

    For purposes of the FRFA, the FDIC analyzed the potential economic 
impact on the entities it regulates with total assets of $175 million 
or less and $500 million or less, including state nonmember banks and 
state savings associations (small FDIC-supervised institutions).
    As discussed in more detail in section E, below, the FDIC believes 
that this interim final rule may have a significant economic impact on 
a substantial number of the small entities under its jurisdiction. 
Accordingly, the FDIC has prepared the following FRFA pursuant to the 
RFA.

A. Statement of the Need for, and Objectives of, the Interim Final Rule

    As discussed in the Supplementary Information of the preamble to 
this interim final rule, the FDIC is revising its regulatory capital 
requirements to promote safe and sound banking practices, implement 
Basel III and other aspects of the Basel capital framework, harmonize 
capital requirements between types of FDIC-supervised institutions, and 
codify capital requirements.
    Additionally, this interim final rule satisfies certain 
requirements under the

[[Page 55466]]

Dodd-Frank Act by: (1) Revising regulatory capital requirements to 
remove references to, and requirements of reliance on, credit 
ratings,\186\ and (2) imposing new or revised minimum capital 
requirements on certain FDIC-supervised institutions.\187\
---------------------------------------------------------------------------

    \186\ See 15 U.S.C. 78o-7, note.
    \187\ See 12 U.S.C. 5371.
---------------------------------------------------------------------------

    Under section 38(c)(1) of the Federal Deposit Insurance Act, the 
FDIC may prescribe capital standards for depository institutions that 
it regulates.\188\ The FDIC also must establish capital requirements 
under the International Lending Supervision Act for institutions that 
it regulates.\189\
---------------------------------------------------------------------------

    \188\ See 12 U.S.C. 1831o(c).
    \189\ See 12 U.S.C. 3907.
---------------------------------------------------------------------------

B. Summary and Assessment of Significant Issues Raised by Public 
Comments in Response to the IRFAs, and a Statement of Changes Made as a 
Result of These Comments

    The FDIC received three public comments directly addressing the 
IRFAs. One commenter questioned the FDIC's assumption that risk-
weighted assets would increase only 10 percent and questioned reliance 
on Call Report data for this assumption, as the commenter asserted that 
existing Call Report data does not contain the information required to 
accurately analyze the proposal's impact on risk-weighted assets (for 
example, under the Standardized Approach NPR, an increase in the risk 
weights for 1-4 family residential mortgage exposures that are balloon 
mortgages). The commenters also expressed general concern that the FDIC 
was underestimating the compliance cost of the proposed rules. For 
instance, one commenter questioned whether small banking organizations 
would have the information required to determine the applicable risk 
weights for residential mortgage exposures, and stated that the cost of 
applying the proposed standards to existing exposures was 
underestimated. Another commenter stated that the FDIC did not 
adequately consider the additional costs relating to new reporting 
systems, assimilating data, and preparing reports required under the 
proposed rules.
    To measure the potential impact on small entities for the purposes 
of its IRFAs, the FDIC used the most current reporting data available 
and, to address information gaps, applied conservative assumptions. The 
FDIC considered the comments it received on the potential impact of the 
proposed rules, and, as discussed in Item F, below, made significant 
revisions to the interim final rule in response to the concerns 
expressed regarding the potential burden on small FDIC-supervised 
institutions.
    Commenters expressed concern that the FDIC, along with the OCC and 
Federal Reserve, did not use a uniform methodology for conducting their 
IRFAs and suggested that the agencies should have compared their 
analyses prior to publishing the proposed rules. The agencies 
coordinated closely in conducting the IRFAs to maximize consistency 
among the methodologies used for determining the potential impact on 
the entities regulated by each agency. However, the analyses differed 
as appropriate in light of the different entities each agency 
supervises. For their respective FRFAs, the agencies continued to 
coordinate closely in order to ensure maximum consistency and 
comparability.
    One commenter questioned the alternatives described in the IRFAs. 
This commenter asserted that the alternatives were counter-productive 
and added complexity to the capital framework without any meaningful 
benefit. As discussed throughout the preamble and in Item F, below, the 
FDIC has responded to commenters' concerns and sought to reduce the 
compliance burden on FDIC-supervised institutions throughout this 
interim final rule.
    The FDIC also received a number of more general comments regarding 
the overall burden of the proposed rules. For example, many commenters 
expressed concern that the complexity and implementation cost of the 
proposed rules would exceed the expected benefit. According to these 
commenters, implementation of the proposed rules would require software 
upgrades for new internal reporting systems, increased employee 
training, and the hiring of additional employees for compliance 
purposes.
    A few commenters also urged the FDIC to recognize that compliance 
costs have increased significantly over recent years due to other 
regulatory changes. As discussed throughout the preamble and in Item F, 
below, the FDIC recognizes the potential compliance costs associated 
with the proposals. Accordingly, for purposes of the interim final rule 
the FDIC modified certain requirements of the proposals to reduce the 
compliance burden on small FDIC-supervised institutions. The FDIC 
believes the interim final rule maintains its objectives regarding the 
implementation of the Basel III framework while reducing costs for 
small FDIC-supervised institutions.

C. Response to Comments Filed by the Chief Counsel for Advocacy of the 
Small Business Administration, and Statement of Changes Made as a 
Result of the Comment

    The Chief Counsel for Advocacy of the Small Business Administration 
(CCA) filed a letter with the FDIC providing comments on the proposed 
rules. The CCA generally commended the FDIC for the IRFAs provided with 
the proposed rules, and specifically commended the FDIC for considering 
the cumulative economic impact of the proposals on small FDIC-
supervised institutions. The CCA acknowledged that the FDIC provided 
lists of alternatives being considered, but encouraged the FDIC to 
provide more detailed discussion of these alternatives and the 
potential burden reductions associated with the alternatives. The CCA 
acknowledged that the FDIC had certified that the advanced approaches 
proposed rule would not have a significant economic impact on a 
substantial number of small FDIC-supervised institutions.
    The CCA stated that small FDIC-supervised institutions should be 
able to continue to use the current regulatory capital framework to 
compute their capital requirements. The FDIC recognizes that the new 
regulatory capital framework will carry costs, but believes that the 
supervisory interest in improved and uniform capital standards, and the 
resulting improvements in the safety and soundness of the U.S. banking 
system, outweighs the increased burden.
    The CCA also urged the FDIC to give careful consideration to 
comments discussing the impact of the proposed rules on small FDIC-
supervised institutions and to analyze possible alternatives to reduce 
this impact. The FDIC gave careful consideration to all comments 
received, in particular the comments that discussed the potential 
impact of the proposed rules on small FDIC-supervised institutions and 
made certain changes to reduce the potential impact of the interim 
final rule, as discussed throughout the preamble and in Item F, below.
    The CCA expressed concern that aspects of the proposals could be 
problematic and onerous for small FDIC-supervised institutions. The CCA 
stated that the proposed rules were designed for large, international 
banks and not adapted to the circumstances of small FDIC-supervised 
institutions. Specifically, the CCA expressed concern over higher risk 
weights for certain products, which, the CCA argued, could drive small 
FDIC-supervised institutions

[[Page 55467]]

into products carrying additional risks. The CCA also noted heightened 
compliance and technology costs associated with implementing the 
proposed rules and raised the possibility that small FDIC-supervised 
institutions may exit the mortgage market. As discussed throughout the 
preamble and in Item F below, the FDIC has made significant revisions 
to the proposed rules that address the concerns raised in the CCA's 
comment.

D. Description and Estimate of Small FDIC-Supervised Institutions 
Affected by the Interim Final Rule

    Under regulations issued by the Small Business Administration,\190\ 
a small entity includes a depository institution with total assets of 
$175 million or less and beginning July 22, 2013, total assets of $500 
million or less.
---------------------------------------------------------------------------

    \190\ See 13 CFR 121.201.
---------------------------------------------------------------------------

    As of March 31, 2013, the FDIC supervised approximately 2,453 small 
depository institutions with total assets of $175 million or less. 
2,295 are small state nonmember banks, 112 are small state savings 
banks, and 46 are small state savings associations. As of March 31, 
2013, the FDIC supervised approximately 3,711 small depository 
institutions with total assets of $500 million or less. 3,398 are small 
state nonmember banks, 259 are small state savings banks, and 54 are 
small state savings associations.

E. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The interim final rule may impact small FDIC-supervised 
institutions in several ways. The interim final rule affects small 
FDIC-supervised institutions' regulatory capital requirements by 
changing the qualifying criteria for regulatory capital, including 
required deductions and adjustments, and modifying the risk weight 
treatment for some exposures. The interim final rule also requires 
small FDIC-supervised institutions to meet new minimum common equity 
tier 1 to risk-weighted assets ratio of 4.5 percent and an increased 
minimum tier 1 capital to risk-weighted assets risk-based capital ratio 
of 6 percent. Under the interim final rule, all FDIC-supervised 
institutions would remain subject to a 4 percent minimum tier 1 
leverage ratio.\191\ The interim final rule imposes limitations on 
capital distributions and discretionary bonus payments for small FDIC-
supervised institutions that do not hold a buffer of common equity tier 
1 capital above the minimum ratios.
---------------------------------------------------------------------------

    \191\ FDIC-supervised institutions subject to the advanced 
approaches rule also would be required in 2018 to achieve a minimum 
tier 1 capital to total leverage exposure ratio (the supplementary 
leverage ratio) of 3 percent. Advanced approaches banking 
organizations should refer to section 10 of subpart B of the interim 
final rule and section II.B of the preamble for a more detailed 
discussion of the applicable minimum capital ratios.
---------------------------------------------------------------------------

    The interim final rule also includes changes to the general risk-
based capital requirements that address the calculation of risk-
weighted assets. The interim final rule:
     Introduces a higher risk weight for certain past due 
exposures and acquisition and development real estate loans;
     Provides a more risk sensitive approach to exposures to 
non-U.S. sovereigns and non-U.S. public sector entities;
     Replaces references to credit ratings with new measures of 
creditworthiness; \192\
---------------------------------------------------------------------------

    \192\ Section 939A of the Dodd-Frank Act addresses the use of 
credit ratings in regulations of the FDIC. Accordingly, the interim 
final rule introduces alternative measures of creditworthiness for 
foreign debt, securitization positions, and resecuritization 
positions.
---------------------------------------------------------------------------

     Provides more comprehensive recognition of collateral and 
guarantees; and
     Provides a more favorable capital treatment for 
transactions cleared through qualifying central counterparties.
    As a result of the new requirements, some small FDIC-supervised 
institutions may have to alter their capital structure (including by 
raising new capital or increasing retention of earnings) in order to 
achieve compliance.
    The FDIC has excluded from its analysis any burden associated with 
changes to the Consolidated Reports of Income and Condition for small 
FDIC-supervised institutions (FFIEC 031 and 041; OMB Nos. 7100-0036, 
3064-0052, 1557-0081). The FDIC is proposing information collection 
changes to reflect the requirements of the interim final rule, and is 
publishing separately for comment on the regulatory reporting 
requirements that will include associated estimates of burden. Further 
analysis of the projected reporting requirements imposed by the interim 
final rule is located in the Paperwork Reduction Act section, below.
    Most small FDIC-supervised institutions hold capital in excess of 
the minimum leverage and risk-based capital requirements set forth in 
the interim final rule. Although the capital requirements under the 
interim final rule are not expected to significantly impact the capital 
structure of these institutions, the FDIC expects that some may change 
internal capital allocation policies and practices to accommodate the 
requirements of the interim final rule. For example, an institution may 
elect to raise capital to return its excess capital position to the 
levels maintained prior to implementation of the interim final rule.
    A comparison of the capital requirements in the interim final rule 
on a fully-implemented basis to the minimum requirements under the 
general risk-based capital rules shows that approximately 57 small 
FDIC-supervised institutions with total assets of $175 million or less 
currently do not hold sufficient capital to satisfy the requirements of 
the interim final rule. Those institutions, which represent 
approximately two percent of small FDIC-supervised institutions, 
collectively would need to raise approximately $83 million in 
regulatory capital to meet the minimum capital requirements under the 
interim final rule.
    A comparison of the capital requirements in the interim final rule 
on a fully-implemented basis to the minimum requirements under the 
general risk-based capital rules shows that approximately 96 small 
FDIC-supervised institutions with total assets of $500 million or less 
currently do not hold sufficient capital to satisfy the requirements of 
the interim final rule. Those institutions, which represent 
approximately three percent of small FDIC-supervised institutions, 
collectively would need to raise approximately $445 million in 
regulatory capital to meet the minimum capital requirements under the 
interim final rule.
    To estimate the cost to FDIC-supervised institutions of the new 
capital requirement, the FDIC examined the effect of this requirement 
on capital structure and the overall cost of capital.\193\ The cost of 
financing an FDIC-supervised institution is the weighted average cost 
of its various financing sources, which amounts to a weighted average 
cost of capital reflecting many different types of debt and equity 
financing. Because interest payments on debt are tax deductible, a more 
leveraged capital structure reduces corporate taxes, thereby lowering 
funding costs, and the weighted average cost of financing tends to 
decline as leverage increases. Thus, an increase in required equity 
capital would--all else equal--increase the cost of capital for that 
institution. This effect could be offset to some extent if the 
additional capital protection caused the risk-premium demanded by the 
institution's

[[Page 55468]]

counterparties to decline sufficiently. The FDIC did not try to measure 
this effect. This increased cost in the most burdensome year would be 
tax benefits foregone: The capital requirement, multiplied by the 
interest rate on the debt displaced and by the effective marginal tax 
rate for the FDIC-supervised institutions affected by the interim final 
rule. The effective marginal corporate tax rate is affected not only by 
the statutory federal and state rates, but also by the probability of 
positive earnings and the offsetting effects of personal taxes on 
required bond yields. Graham (2000) considers these factors and 
estimates a median marginal tax benefit of $9.40 per $100 of 
interest.\194\ So, using an estimated interest rate on debt of 6 
percent, the FDIC estimated that for institutions with total assets of 
$175 million or less, the annual tax benefits foregone on $83 million 
of capital switching from debt to equity is approximately $469,000 per 
year ($83 million * 0.06 (interest rate) * 0.094 (median marginal tax 
savings)). Averaged across 57 institutions, the cost is approximately 
$8,000 per institution per year. Similarly, for institutions with total 
assets of $500 million or less, the annual tax benefits foregone on 
$445 million of capital switching from debt to equity is approximately 
$2.5 million per year ($445 million * 0.06 (interest rate) * 0.094 
(median marginal tax savings)). Averaged across 96 institutions, the 
cost is approximately $26,000 per institution per year.
---------------------------------------------------------------------------

    \193\ See Merton H. Miller, (1995), ``Do the M & M propositions 
apply to banks?'' Journal of Banking & Finance, Vol. 19, pp. 483-
489.
    \194\ See John R. Graham, (2000), How Big Are the Tax Benefits 
of Debt?, Journal of Finance, Vol. 55, No. 5, pp. 1901-1941. Graham 
points out that ignoring the offsetting effects of personal taxes 
would increase the median marginal tax rate to $31.5 per $100 of 
interest.
---------------------------------------------------------------------------

    Working with the other agencies, the FDIC also estimated the direct 
compliance costs related to financial reporting as a result of the 
interim final rule. This aspect of the interim final rule likely will 
require additional personnel training and expenses related to new 
systems (or modification of existing systems) for calculating 
regulatory capital ratios, in addition to updating risk weights for 
certain exposures. The FDIC assumes that small FDIC-supervised 
institutions will spend approximately $43,000 per institution to update 
reporting system and change the classification of existing exposures. 
Based on comments from the industry, the FDIC increased this estimate 
from the $36,125 estimate used in the proposed rules. The FDIC believes 
that this revised cost estimate is more conservative because it has 
increased even though many of the labor-intensive provisions of the 
interim final rule have been excluded. For example, small FDIC-
supervised institutions have the option to maintain the current 
reporting methodology for gains and losses classified as Available for 
Sale (AFS) thus eliminating the need to update systems. Additionally 
the exposures where the risk-weights are changing typically represent a 
small portion of assets (less than 5 percent) on institutions' balance 
sheets. Additionally, small FDIC-supervised institutions can maintain 
existing risk-weights for residential mortgage exposures, eliminating 
the need for those institutions to reclassify existing exposure. This 
estimate of direct compliance costs is the same under both the $175 
million and $500 million size thresholds.
    The FDIC estimates that the $43,000 in direct compliance costs will 
represent a significant burden for approximately 37 percent of small 
FDIC-supervised institutions with total assets of $175 million or less. 
The FDIC estimates that the $43,000 in direct compliance costs will 
represent a burden for approximately 25 percent of small FDIC-
supervised institutions with total assets of $500 million or less. For 
purposes of this interim final rule, the FDIC defines significant 
burden as an estimated cost greater than 2.5 percent of total non-
interest expense or 5 percent of annual salaries and employee benefits. 
The direct compliance costs are the most significant cost since few 
small FDIC-supervised institutions will need to raise capital to meet 
the minimum ratios, as noted above.

 F. Steps Taken To Minimize the Economic Impact on Small FDIC-
Supervised Institutions; Significant Alternatives

    In response to commenters' concerns about the potential 
implementation burden on small FDIC-supervised institutions, the FDIC 
has made several significant revisions to the proposals for purposes of 
the interim final rule. Under the interim final rule, non-advanced 
approaches FDIC-supervised institutions will be permitted to elect to 
exclude amounts reported as accumulated other comprehensive income 
(AOCI) when calculating regulatory capital, to the same extent 
currently permitted under the general risk-based capital rules.\195\ In 
addition, for purposes of calculating risk-weighted assets under the 
standardized approach, the FDIC is not adopting the proposed treatment 
for 1-4 family residential mortgages, which would have required small 
FDIC-supervised institutions to categorize residential mortgage loans 
into one of two categories based on certain underwriting standards and 
product features, and then risk-weight each loan based on its loan-to-
value ratio. The FDIC also is retaining the 120-day safe harbor from 
recourse treatment for loans transferred pursuant to an early default 
provision. The FDIC believes that these changes will meaningfully 
reduce the compliance burden of the interim final rule for small FDIC-
supervised institutions. For instance, in contrast to the proposal, the 
interim final rule does not require small FDIC-supervised institutions 
to review existing mortgage loan files, purchase new software to track 
loan-to-value ratios, train employees on the new risk-weight 
methodology, or hold more capital for exposures that would have been 
deemed category 2 under the proposed rule, removing the proposed 
distinction between risk weights for category 1 and 2 residential 
mortgage exposures. Similarly, the option to elect to retain the 
current treatment of AOCI will reduce the burden associated with 
managing the volatility in regulatory capital resulting from changes in 
the value of an FDIC-supervised institutions' AFS debt securities 
portfolio due to shifting interest rate environments. The FDIC believes 
these modifications to the proposed rule will substantially reduce 
compliance burden for small FDIC-supervised institutions.
---------------------------------------------------------------------------

    \195\ For most non-advanced approaches banking organizations, 
this will be a one-time only election. However, in certain limited 
circumstances, such as a merger of organizations that have made 
different elections, the FDIC may permit the resultant entity to 
make a new election.
---------------------------------------------------------------------------

XV. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(PRA) of 1995 (44 U.S.C. 3501-3521), the FDIC may not conduct or 
sponsor, and the respondent is not required to respond to, an 
information collection unless it displays a currently valid Office of 
Management and Budget (OMB) control number.
    In conjunction with the proposed rules, the FDIC submitted the 
information collection requirements contained therein to OMB for 
review. In response, OMB filed comments with the FDIC in accordance 
with 5 CFR 1320.11(c) withholding PRA approval and instructing that the 
collection should be resubmitted to OMB at the interim final rule 
stage. As instructed by OMB, the information collection requirements 
contained in this interim final rule have been submitted by the FDIC to 
OMB for review under the PRA, under OMB Control No. 3064-0153.

[[Page 55469]]

    The interim final rule contains information collection requirements 
subject to the PRA. They are found in sections 324.3, 324.22, 324.35, 
324.37, 324.41, 324.42, 324.62, 324.63 (including tables), 324.121, 
through 324.124, 324.132, 324.141, 324.142, 324.153, 324.173 (including 
tables). The information collection requirements contained in sections 
324.203, through 324.210, and 324.212 concerning market risk are 
approved by OMB under Control No. 3604-0178.
    A total of nine comments were received concerning paperwork. Seven 
expressed concern regarding the increase in paperwork resulting from 
the rule. They addressed the concept of paperwork generally and not 
within the context of the PRA.
    One comment addressed cost, competitiveness, and qualitative impact 
statements, and noted the lack of cost estimates. It was unclear 
whether the commenter was referring to cost estimates for regulatory 
burden, which are included in the preamble to the rule, or cost 
estimates regarding the PRA burden, which are included in the 
submissions (information collection requests) made to OMB by the 
agencies regarding the interim final rule. All of the agencies' 
submissions are publicly available at www.reginfo.gov.
    One commenter seemed to indicate that the agencies' burden 
estimates are overstated. The commenter stated that, for their 
institution, the PRA burden will parallel that of interest rate risk 
(240 hours per year). The agencies' estimates far exceed that figure, 
so no change to the estimates would be necessary. The FDIC continues to 
believe that its estimates are reasonable averages that are not 
overstated.
    The FDIC has an ongoing interest in your comments. Comments are 
invited on:
    (a) Whether the collection of information is necessary for the 
proper performance of the agencies' functions, including whether the 
information has practical utility;
    (b) The accuracy of the estimates of the burden of the information 
collection, including the validity of the methodology and assumptions 
used;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    (d) Ways to minimize the burden of the information collection on 
respondents, including through the use of automated collection 
techniques or other forms of information technology; and
    (e) Estimates of capital or start-up costs and costs of operation, 
maintenance, and purchase of services to provide information.

XVI. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use 
plain language in all proposed and rules published after January 1, 
2000. The agencies have sought to present the proposed rule in a simple 
and straightforward manner and did not receive any comments on the use 
of plain language.

XVII. Small Business Regulatory Enforcement Fairness Act of 1996

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996, or ``SBREFA,'' the FDIC must advise the OMB as to whether 
the interim final rule constitutes a ``major'' rule.\196\ If a rule is 
major, its effectiveness will generally be delayed for 60 days pending 
congressional review.
---------------------------------------------------------------------------

    \196\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

    In accordance with SBREFA, the FDIC has advised the OMB that this 
interim final rule is a major rule for the purpose of congressional 
review. Following OMB's review, the FDIC will file the appropriate 
reports with Congress and the Government Accountability Office so that 
the final rule may be reviewed.

List of Subjects

12 CFR Part 303

    Administrative practice and procedure, Banks, banking, Bank merger, 
Branching, Foreign investments, Golden parachute payments, Insured 
branches, Interstate branching, Reporting and recordkeeping 
requirements, Savings associations.

12 CFR Part 308

    Administrative practice and procedure, Banks, banking, Claims, 
Crime; Equal access to justice, Ex parte communications, Hearing 
procedure, Lawyers, Penalties, State nonmember banks.

12 CFR Part 324

    Administrative practice and procedure, Banks, banking, Capital 
adequacy, Reporting and recordkeeping requirements, Savings 
associations, State non-member banks.

12 CFR Part 327

    Bank deposit insurance, Banks, banking, Savings associations.

12 CFR Part 333

    Banks, banking, Corporate powers.

12 CFR Part 337

    Banks, banking, Reporting and recordkeeping requirements, Savings 
associations, Securities.

12 CFR Part 347

    Authority delegations (Government agencies), Bank deposit 
insurance, Banks, banking, Credit, Foreign banking, Investments, 
Reporting and recordkeeping requirements, United States investments 
abroad.

12 CFR Part 349

    Foreign banking, Banks, banking.

12 CFR Part 360

    Banks, banking, Investments.

12 CFR Part 362

    Administrative practice and procedure, Authority delegations 
(Government agencies), Bank deposit insurance, Banks, banking, 
Investments, Reporting and recordkeeping requirements.

12 CFR Part 363

    Accounting, Administrative practice and procedure, Banks, banking, 
Reporting and recordkeeping requirements.

12 CFR Part 364

    Administrative practice and procedure, Bank deposit insurance, 
Banks, banking, Reporting and recordkeeping requirements, Safety and 
soundness.

12 CFR Part 365

    Banks, banking, Mortgages.

12 CFR Part 390

    Administrative practice and procedure, Advertising, Aged, Credit, 
Civil rights, Conflicts of interest, Crime, Equal employment 
opportunity, Ethics, Fair housing' Governmental employees, Home 
mortgage disclosure, Individuals with disabilities, OTS employees, 
Reporting and recordkeeping requirements, Savings associations.

12 CFR Part 391

    Administrative practice and procedure, Advertising, Aged, Credit, 
Civil rights, Conflicts of interest, Crime, Equal employment 
opportunity, Ethics, Fair housing, Governmental employees, Home 
mortgage disclosure, Individuals with disabilities, OTS employees, 
Reporting and recordkeeping requirements, Savings associations.

Authority and Issuance

    For the reasons set forth in the preamble, the Federal Deposit 
Insurance Corporation amends chapter III of title

[[Page 55470]]

12 of the Code of Federal Regulations as follows:

PART 303--FILING PROCEDURES

0
1. The authority citation for part 303 continues to read as follows:

    Authority: 12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819 
(Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 
1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.

0
2. Section 303.2 is amended by revising paragraphs (b), (ee), and (ff) 
to read as follows:


Sec.  303.2  Definitions.

* * * * *
    (b) Adjusted part 325 total assets means adjusted 12 CFR part 325 
or part 324, as applicable, total assets as calculated and reflected in 
the FDIC's Report of Examination.
* * * * *
    (ee) Tier 1 capital shall have the same meaning as provided in 
Sec.  325.2(v) of this chapter (12 CFR 325.2(v)) or Sec.  324.2, as 
applicable.
    (ff) Total assets shall have the same meaning as provided in Sec.  
325.2(x) of this chapter (12 CFR 325.2(x)) or Sec.  324.401(g), as 
applicable.
* * * * *

0
3. Section 303.64 is amended by revising paragraph (a)(4)(i) to read as 
follows:


Sec.  303.64  Processing.

    (a) * * *
    (4) * * *
    (i) Immediately following the merger transaction, the resulting 
institution will be ``well-capitalized'' pursuant to subpart B of part 
325 of this chapter (12 CFR part 325) or subpart H of part 324 of this 
chapter (12 CFR part 324), as applicable; and
* * * * *

0
4. Section 303.181 is amended by revising paragraph (c)(4) to read as 
follows:


Sec.  303.181  Definitions.

* * * * *
    (c) * * *
    (4) Is well-capitalized as defined in subpart B of part 325 of this 
chapter or subpart H of part 324 of this chapter, as applicable; and
* * * * *

0
5. Section 303.184 is amended by revising paragraph (d)(1)(ii) to read 
as follows:


Sec.  303.184  Moving an insured branch of a foreign bank.

* * * * *
    (d) * * *
    (1) * * *
    (ii) The applicant is at least adequately capitalized as defined in 
subpart B of part 325 of this chapter or subpart H of part 324 of this 
chapter, as applicable;
* * * * *

0
6. Section 303.200 is amended by revising paragraphs (a)(2) and (b) to 
read as follows:


Sec.  303.200  Scope.

    (a) * * *
    (2) Definitions of the capital categories referenced in this Prompt 
Corrective Action subpart may be found in subpart B of part 325 of this 
chapter, Sec.  325.103(b) for state nonmember banks and Sec.  
325.103(c) for insured branches of foreign banks, or subpart H of part 
324 of this chapter, Sec.  324.403(b) for state nonmember banks and 
Sec.  324.403(c) for insured branches of foreign banks, as applicable.
    (b) Institutions covered. Restrictions and prohibitions contained 
in subpart B of part 325 of this chapter, and subpart H of part 324 of 
this chapter, as applicable, apply primarily to state nonmember banks 
and insured branches of foreign banks, as well as to directors and 
senior executive officers of those institutions. Portions of subpart B 
of part 325 of this chapter or subpart H of part 324 of this chapter, 
as applicable, also apply to all insured depository institutions that 
are deemed to be critically undercapitalized.

0
7. Section 303.207 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  303.207  Restricted activities for critically undercapitalized 
institutions.

* * * * *
    (b) * * *
    (2) Extend credit for any highly leveraged transaction. A highly 
leveraged transaction means an extension of credit to or investment in 
a business by an insured depository institution where the financing 
transaction involves a buyout, acquisition, or recapitalization of an 
existing business and one of the following criteria is met:
    (i) The transaction results in a liabilities-to-assets leverage 
ratio higher than 75 percent; or
    (ii) The transaction at least doubles the subject company's 
liabilities and results in a liabilities-to-assets leverage ratio 
higher than 50 percent; or
    (iii) The transaction is designated an highly leverage transaction 
by a syndication agent or a federal bank regulator.
    (iv) Loans and exposures to any obligor in which the total 
financing package, including all obligations held by all participants 
is $20 million or more, or such lower level as the FDIC may establish 
by order on a case-by-case basis, will be excluded from this 
definition.
* * * * *

0
8. Section 303.241 is amended by revising paragraph (c)(4) to read as 
follows:


Sec.  303.241  Reduce or retire capital stock or capital debt 
instruments.

* * * * *
    (c) * * *
    (4) If the proposal involves a series of transactions affecting 
Tier 1 capital components which will be consummated over a period of 
time which shall not exceed twelve months, the application shall 
certify that the insured depository institution will maintain itself as 
a well-capitalized institution as defined in part 325 of this chapter 
or part 324 of this chapter, as applicable, both before and after each 
of the proposed transactions;
* * * * *

PART 308--RULES OF PRACTICE AND PROCEDURE

0
9. The authority citation for part 308 continues to read as follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 
1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 
4717, 15 U.S.C. 78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 
78u-2, 78u-3, and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 
U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 
110 Stat. 1321-358; and Pub. L. 109-351.


0
10. Section 308.200 is revised to read as follows:


Sec.  308.200  Scope.

    The rules and procedures set forth in this subpart apply to banks, 
insured branches of foreign banks and senior executive officers and 
directors of banks that are subject to the provisions of section 38 of 
the Federal Deposit Insurance Act (section 38) (12 U.S.C. 1831o) and 
subpart B of part 325 of this chapter or subpart H of part 324 of this 
chapter, as applicable.

0
11. Section 308.202 is amended by revising paragraphs (a)(1)(i)(A) 
introductory text and (a)(1)(ii) to read as follows:


Sec.  308.202  Procedures for reclassifying a bank based on criteria 
other than capital.

    (a) * * *
    (1) * * *
    (i) Grounds for reclassification. (A) Pursuant to Sec.  325.103(d) 
of this chapter

[[Page 55471]]

or Sec.  324.403(d) of this chapter, as applicable, the FDIC may 
reclassify a well-capitalized bank as adequately capitalized or subject 
an adequately capitalized or undercapitalized institution to the 
supervisory actions applicable to the next lower capital category if:
* * * * *
    (ii) Prior notice to institution. Prior to taking action pursuant 
to Sec.  325.103(d) of this chapter or Sec.  324.403(d) of this 
chapter, as applicable, the FDIC shall issue and serve on the bank a 
written notice of the FDIC's intention to reclassify it.
* * * * *

0
12. Section 308.204 is amended by revising paragraphs (b)(2) and (c) to 
read as follows:


Sec.  308.204  Enforcement of directives.

* * * * *
    (b) * * *
    (2) Failure to implement capital restoration plan. The failure of a 
bank to implement a capital restoration plan required under section 38, 
or subpart B of part 325 of this chapter or subpart H of part 324 of 
this chapter, as applicable, or the failure of a company having control 
of a bank to fulfill a guarantee of a capital restoration plan made 
pursuant to section 38(e)(2) of the FDI Act shall subject the bank to 
the assessment of civil money penalties pursuant to section 8(i)(2)(A) 
of the FDI Act.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the FDIC may seek 
enforcement of the provisions of section 38 or subpart B of part 325 of 
this chapter or subpart H of part 324 of this chapter, as applicable, 
through any other judicial or administrative proceeding authorized by 
law.

0
13. Part 324 is added to read as follows:

PART 324--CAPITAL ADEQUACY OF FDIC-SUPERVISED INSTITUTIONS

Subpart A--General Provisions
Sec.
324.1 Purpose, applicability, reservations of authority, and timing.
324.2 Definitions.
324.3 Operational requirements for counterparty credit risk.
324.4 Inadequate capital as an unsafe or unsound practice or 
condition.
324.5 Issuance of directives.
324.6 through 324.9 [Reserved]
Subpart B--Capital Ratio Requirements and Buffers
324.10 Minimum capital requirements.
324.11 Capital conservation buffer and countercyclical capital 
buffer amount.
324.12 through 324.19 [Reserved]
Subpart C--Definition of Capital
324.20 Capital components and eligibility criteria for regulatory 
capital instruments.
324.21 Minority interest.
324.22 Regulatory capital adjustments and deductions.
324.23 through 324.29 [Reserved]
Subpart D--Risk-Weighted Assets--Standardized Approach
324.30 Applicability.

Risk-Weighted Assets for General Credit Risk

324.31 Mechanics for calculating risk-weighted assets for general 
credit risk.
324.32 General risk weights.
324.33 Off-balance sheet exposures.
324.34 OTC derivative contracts.
324.35 Cleared transactions.
324.36 Guarantees and credit derivatives: substitution treatment.
324.37 Collateralized transactions.

Risk-Weighted Assets for Unsettled Transactions

324.38 Unsettled transactions.
324.39 through 324.40 [Reserved]

Risk-Weighted Assets for Securitization Exposures

324.41 Operational requirements for securitization exposures.
324.42 Risk-weighted assets for securitization exposures.
324.43 Simplified supervisory formula approach (SSFA) and the gross-
up approach.
324.44 Securitization exposures to which the SSFA and gross-up 
approach do not apply.
324.45 Recognition of credit risk mitigants for securitization 
exposures.
324.46 through 324.50 [Reserved]

Risk-Weighted Assets for Equity Exposures

324.51 Introduction and exposure measurement.
324.52 Simple risk-weight approach (SRWA).
324.53 Equity exposures to investment funds.
324.54 through 324.60 [Reserved]

Disclosures

324.61 Purpose and scope.
324.62 Disclosure requirements.
324.63 Disclosures by FDIC-supervised institutions described in 
Sec.  324.61.
324.64 through 324.99 [Reserved]
Subpart E--Risk-Weighted Assets--Internal Ratings-Based and Advanced 
Measurement Approaches
324.100 Purpose, applicability, and principle of conservatism.
324.101 Definitions.
324.102 through 324.120 [Reserved]

Qualification

324.121 Qualification process.
324.122 Qualification requirements.
324.123 Ongoing qualification.
324.124 Merger and acquisition transitional arrangements.
324.125 through 324.130 [Reserved]

Risk-Weighted Assets for General Credit Risk

324.131 Mechanics for calculating total wholesale and retail risk-
weighted assets.
324.132 Counterparty credit risk of repo-style transactions, 
eligible margin loans, and OTC derivative contracts.
324.133 Cleared transactions.
324.134 Guarantees and credit derivatives: PD substitution and LGD 
adjustment approaches.
324.135 Guarantees and credit derivatives: double default treatment.
324.136 Unsettled transactions.
324.137 through 324.140 [Reserved]

Risk-Weighted Assets for Securitization Exposures

324.141 Operational criteria for recognizing the transfer of risk.
324.142 Risk-weighted assets for securitization exposures.
324.143 Supervisory formula approach (SFA).
324.144 Simplified supervisory formula approach (SSFA).
324.145 Recognition of credit risk mitigants for securitization 
exposures.
324.146 through 324.150 [Reserved]

Risk-Weighted Assets for Equity Exposures

324.151 Introduction and exposure measurement.
324.152 Simple risk weight approach (SRWA).
324.153 Internal models approach (IMA).
324.154 Equity exposures to investment funds.
324.155 Equity derivative contracts.
324.156 through 324.160 [Reserved]

Risk-Weighted Assets for Operational Risk

324.161 Qualification requirements for incorporation of operational 
risk mitigants.
324.162 Mechanics of risk-weighted asset calculation.
324.163 through 324.170 [Reserved]

Disclosures

324.171 Purpose and scope.
324.172 Disclosure requirements.
324.173 Disclosures by certain advanced approaches FDIC-supervised 
institutions.
324.174 through 324.200 [Reserved]
Subpart F--Risk-Weighted Assets--Market Risk
324.201 Purpose, applicability, and reservation of authority.
324.202 Definitions.
324.203 Requirements for application of this subpart F.
324.204 Measure for market risk.
324.205 VaR-based measure.
324.206 Stressed VaR-based measure.
324.207 Specific risk.
324.208 Incremental risk.
324.209 Comprehensive risk.
324.210 Standardized measurement method for specific risk.

[[Page 55472]]

324.211 Simplified supervisory formula approach (SSFA).
324.212 Market risk disclosures.
324.213 through 324.299 [Reserved]
Subpart G--Transition Provisions
324.300 Transitions.
324.301 through 324.399 [Reserved]
Subpart H--Prompt Corrective Action
324.401 Authority, purpose, scope, other supervisory authority, 
disclosure of capital categories, and transition procedures.
324.402 Notice of capital category.
324.403 Capital measures and capital category definitions.
324.404 Capital restoration plans.
324.405 Mandatory and discretionary supervisory actions.
324.406 through 324.999 [Reserved]

    Authority: 12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 
1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 
1828(o), 1831o, 1835, 3907, 3909, 4808; 5371; 5412; Pub. L. 102-233, 
105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 
105 Stat. 2236, 2355, as amended by Pub. L. 103-325, 108 Stat. 2160, 
2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, 
as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 
note); Pub. L. 111-203, 124 Stat. 1376, 1887 (15 U.S.C. 78o-7 note).

Subpart A--General Provisions


Sec.  324.1  Purpose, applicability, reservations of authority, and 
timing.

    (a) Purpose. This part 324 establishes minimum capital requirements 
and overall capital adequacy standards for FDIC-supervised 
institutions. This part 324 includes methodologies for calculating 
minimum capital requirements, public disclosure requirements related to 
the capital requirements, and transition provisions for the application 
of this part 324.
    (b) Limitation of authority. Nothing in this part 324 shall be read 
to limit the authority of the FDIC to take action under other 
provisions of law, including action to address unsafe or unsound 
practices or conditions, deficient capital levels, or violations of law 
or regulation, under section 8 of the Federal Deposit Insurance Act.
    (c) Applicability. Subject to the requirements in paragraphs (d) 
and (f) of this section:
    (1) Minimum capital requirements and overall capital adequacy 
standards. Each FDIC-supervised institution must calculate its minimum 
capital requirements and meet the overall capital adequacy standards in 
subpart B of this part.
    (2) Regulatory capital. Each FDIC-supervised institution must 
calculate its regulatory capital in accordance with subpart C of this 
part.
    (3) Risk-weighted assets. (i) Each FDIC-supervised institution must 
use the methodologies in subpart D of this part (and subpart F of this 
part for a market risk FDIC-supervised institution) to calculate 
standardized total risk-weighted assets.
    (ii) Each advanced approaches FDIC-supervised institution must use 
the methodologies in subpart E (and subpart F of this part for a market 
risk FDIC-supervised institution) to calculate advanced approaches 
total risk-weighted assets.
    (4) Disclosures. (i) Except for an advanced approaches FDIC-
supervised institution that is making public disclosures pursuant to 
the requirements in subpart E of this part, each FDIC-supervised 
institution with total consolidated assets of $50 billion or more must 
make the public disclosures described in subpart D of this part.
    (ii) Each market risk FDIC-supervised institution must make the 
public disclosures described in subpart F of this part.
    (iii) Each advanced approaches FDIC-supervised institution must 
make the public disclosures described in subpart E of this part.
    (d) Reservation of authority. (1) Additional capital in the 
aggregate. The FDIC may require an FDIC-supervised institution to hold 
an amount of regulatory capital greater than otherwise required under 
this part if the FDIC determines that the FDIC-supervised institution's 
capital requirements under this part are not commensurate with the 
FDIC-supervised institution's credit, market, operational, or other 
risks.
    (2) Regulatory capital elements. (i) If the FDIC determines that a 
particular common equity tier 1, additional tier 1, or tier 2 capital 
element has characteristics or terms that diminish its ability to 
absorb losses, or otherwise present safety and soundness concerns, the 
FDIC may require the FDIC-supervised institution to exclude all or a 
portion of such element from common equity tier 1 capital, additional 
tier 1 capital, or tier 2 capital, as appropriate.
    (ii) Notwithstanding the criteria for regulatory capital 
instruments set forth in subpart C of this part, the FDIC may find that 
a capital element may be included in an FDIC-supervised institution's 
common equity tier 1 capital, additional tier 1 capital, or tier 2 
capital on a permanent or temporary basis consistent with the loss 
absorption capacity of the element and in accordance with Sec.  
324.20(e).
    (3) Risk-weighted asset amounts. If the FDIC determines that the 
risk-weighted asset amount calculated under this part by the FDIC-
supervised institution for one or more exposures is not commensurate 
with the risks associated with those exposures, the FDIC may require 
the FDIC-supervised institution to assign a different risk-weighted 
asset amount to the exposure(s) or to deduct the amount of the 
exposure(s) from its regulatory capital.
    (4) Total leverage. If the FDIC determines that the leverage 
exposure amount, or the amount reflected in the FDIC-supervised 
institution's reported average total consolidated assets, for an on- or 
off-balance sheet exposure calculated by an FDIC-supervised institution 
under Sec.  324.10 is inappropriate for the exposure(s) or the 
circumstances of the FDIC-supervised institution, the FDIC may require 
the FDIC-supervised institution to adjust this exposure amount in the 
numerator and the denominator for purposes of the leverage ratio 
calculations.
    (5) Consolidation of certain exposures. The FDIC may determine that 
the risk-based capital treatment for an exposure or the treatment 
provided to an entity that is not consolidated on the FDIC-supervised 
institution's balance sheet is not commensurate with the risk of the 
exposure or the relationship of the FDIC-supervised institution to the 
entity. Upon making this determination, the FDIC may require the FDIC-
supervised institution to treat the exposure or entity as if it were 
consolidated on the balance sheet of the FDIC-supervised institution 
for purposes of determining the FDIC-supervised institution's risk-
based capital requirements and calculating the FDIC-supervised 
institution's risk-based capital ratios accordingly. The FDIC will look 
to the substance of, and risk associated with, the transaction, as well 
as other relevant factors the FDIC deems appropriate in determining 
whether to require such treatment.
    (6) Other reservation of authority. With respect to any deduction 
or limitation required under this part, the FDIC may require a 
different deduction or limitation, provided that such alternative 
deduction or limitation is commensurate with the FDIC-supervised 
institution's risk and consistent with safety and soundness.
    (e) Notice and response procedures. In making a determination under 
this section, the FDIC will apply notice and response procedures in the 
same manner as the notice and response procedures in Sec.  324.5(c).
    (f) Timing. (1) Subject to the transition provisions in subpart G 
of this part, an advanced approaches FDIC-supervised

[[Page 55473]]

institution that is not a savings and loan holding company must:
    (i) Except as described in paragraph (f)(1)(ii) of this section, 
beginning on January 1, 2014, calculate advanced approaches total risk-
weighted assets in accordance with subpart E and, if applicable, 
subpart F of this part and, beginning on January 1, 2015, calculate 
standardized total risk-weighted assets in accordance with subpart D 
and, if applicable, subpart F of this part;
    (ii) From January 1, 2014 to December 31, 2014:
    (A) Calculate risk-weighted assets in accordance with the general 
risk-based capital rules under 12 CFR part 325, appendix A, and, if 
applicable appendix C (state nonmember banks), or 12 CFR part 390, 
subpart Z and, if applicable, 12 CFR part 325, appendix C (state 
savings associations) \1\ and substitute such risk-weighted assets for 
standardized total risk-weighted assets for purposes of Sec.  324.10;
---------------------------------------------------------------------------

    \1\ For the purpose of calculating its general risk-based 
capital ratios from January 1, 2014 to December 31, 2014, an 
advanced approaches FDIC-supervised institution shall adjust, as 
appropriate, its risk-weighted asset measure (as that amount is 
calculated under 12 CFR part 325, appendix A, (state nonmember 
banks), and 12 CFR part 390, subpart Z (state savings associations) 
in the general risk-based capital rules) by excluding those assets 
that are deducted from its regulatory capital under Sec.  324.22.
---------------------------------------------------------------------------

    (B) If applicable, calculate general market risk equivalent assets 
in accordance with 12 CFR part 325, appendix C, section 4(a)(3) and 
substitute such general market risk equivalent assets for standardized 
market risk-weighted assets for purposes of Sec.  324.20(d)(3); and
    (C) Substitute the corresponding provision or provisions of 12 CFR 
part 325, appendix A, and, if applicable, appendix C (state nonmember 
banks), and 12 CFR part 390, subpart Z and, if applicable, 12 CFR part 
325, appendix C (state savings associations) for any reference to 
subpart D of this part in: Sec.  324.121(c); Sec.  324.124(a) and (b); 
Sec.  324.144(b); Sec.  324.154(c) and (d); Sec.  324.202(b) 
(definition of covered position in paragraph (b)(3)(iv)); and Sec.  
324.211(b); \2\
---------------------------------------------------------------------------

    \2\ In addition, for purposes of Sec.  324.201(c)(3), from 
January 1, 2014 to December 31, 2014, for any circumstance in which 
the FDIC may require an FDIC-supervised institution to calculate 
risk-based capital requirements for specific positions or portfolios 
under subpart D of this part, the FDIC will instead require the 
FDIC-supervised institution to make such calculations according to 
12 CFR part 325, appendix A, and, if applicable, appendix C (state 
nonmember banks), or 12 CFR part 390, subpart Z and, if applicable, 
12 CFR part 325, appendix C (state savings associations).
---------------------------------------------------------------------------

    (iii) Beginning on January 1, 2014, calculate and maintain minimum 
capital ratios in accordance with subparts A, B, and C of this part, 
provided, however, that such FDIC-supervised institution must:
    (A) From January 1, 2014 to December 31, 2014, maintain a minimum 
common equity tier 1 capital ratio of 4 percent, a minimum tier 1 
capital ratio of 5.5 percent, a minimum total capital ratio of 8 
percent, and a minimum leverage ratio of 4 percent; and
    (B) From January 1, 2015 to December 31, 2017, an advanced 
approaches FDIC-supervised institution:
    (1) Is not required to maintain a supplementary leverage ratio; and
    (2) Must calculate a supplementary leverage ratio in accordance 
with Sec.  324.10(c), and must report the calculated supplementary 
leverage ratio on any applicable regulatory reports.
    (2) Subject to the transition provisions in subpart G of this part, 
an FDIC-supervised institution that is not an advanced approaches FDIC-
supervised institution or a savings and loan holding company that is an 
advanced approaches FDIC-supervised institution must:
    (i) Beginning on January 1, 2015, calculate standardized total 
risk-weighted assets in accordance with subpart D, and if applicable, 
subpart F of this part; and
    (ii) Beginning on January 1, 2015, calculate and maintain minimum 
capital ratios in accordance with subparts A, B and C of this part, 
provided, however, that from January 1, 2015, to December 31, 2017, a 
savings and loan holding company that is an advanced approaches FDIC-
supervised institution:
    (A) Is not required to maintain a supplementary leverage ratio; and
    (B) Must calculate a supplementary leverage ratio in accordance 
with Sec.  324.10(c), and must report the calculated supplementary 
leverage ratio on any applicable regulatory reports.
    (3) Beginning on January 1, 2016, and subject to the transition 
provisions in subpart G of this part, an FDIC-supervised institution is 
subject to limitations on distributions and discretionary bonus 
payments with respect to its capital conservation buffer and any 
applicable countercyclical capital buffer amount, in accordance with 
subpart B of this part.


Sec.  324.2  Definitions.

    As used in this part:
    Additional tier 1 capital is defined in Sec.  324.20(c).
    Advanced approaches FDIC-supervised institution means an FDIC-
supervised institution that is described in Sec.  324.100(b)(1).
    Advanced approaches total risk-weighted assets means:
    (1) The sum of:
    (i) Credit-risk-weighted assets;
    (ii) Credit valuation adjustment (CVA) risk-weighted assets;
    (iii) Risk-weighted assets for operational risk; and
    (iv) For a market risk FDIC-supervised institution only, advanced 
market risk-weighted assets; minus
    (2) Excess eligible credit reserves not included in the FDIC-
supervised institution's tier 2 capital.
    Advanced market risk-weighted assets means the advanced measure for 
market risk calculated under Sec.  324.204 multiplied by 12.5.
    Affiliate with respect to a company, means any company that 
controls, is controlled by, or is under common control with, the 
company.
    Allocated transfer risk reserves means reserves that have been 
established in accordance with section 905(a) of the International 
Lending Supervision Act, against certain assets whose value U.S. 
supervisory authorities have found to be significantly impaired by 
protracted transfer risk problems.
    Allowances for loan and lease losses (ALLL) means valuation 
allowances that have been established through a charge against earnings 
to cover estimated credit losses on loans, lease financing receivables 
or other extensions of credit as determined in accordance with GAAP. 
ALLL excludes ``allocated transfer risk reserves.'' For purposes of 
this part, ALLL includes allowances that have been established through 
a charge against earnings to cover estimated credit losses associated 
with off-balance sheet credit exposures as determined in accordance 
with GAAP.
    Asset-backed commercial paper (ABCP) program means a program 
established primarily for the purpose of issuing commercial paper that 
is investment grade and backed by underlying exposures held in a 
bankruptcy-remote special purpose entity (SPE).
    Asset-backed commercial paper (ABCP) program sponsor means an FDIC-
supervised institution that:
    (1) Establishes an ABCP program;
    (2) Approves the sellers permitted to participate in an ABCP 
program;
    (3) Approves the exposures to be purchased by an ABCP program; or
    (4) Administers the ABCP program by monitoring the underlying 
exposures, underwriting or otherwise arranging for the placement of 
debt or other obligations issued by the program, compiling monthly 
reports, or ensuring compliance with the program documents and with the 
program's credit and investment policy.
    Assets classified loss means:

[[Page 55474]]

    (1) When measured as of the date of examination of an FDIC-
supervised institution, those assets that have been determined by an 
evaluation made by a state or Federal examiner as of that date to be a 
loss; and
    (2) When measured as of any other date, those assets:
    (i) That have been determined--
    (A) By an evaluation made by a state or Federal examiner at the 
most recent examination of an FDIC-supervised institution to be a loss; 
or
    (B) By evaluations made by the FDIC-supervised institution since 
its most recent examination to be a loss; and
    (ii) That have not been charged off from the FDIC-supervised 
institution's books or collected.
    Bank means an FDIC-insured, state-chartered commercial or savings 
bank that is not a member of the Federal Reserve System and for which 
the FDIC is the appropriate Federal banking agency pursuant to section 
3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).
    Bank holding company means a bank holding company as defined in 
section 2 of the Bank Holding Company Act.
    Bank Holding Company Act means the Bank Holding Company Act of 
1956, as amended (12 U.S.C. 1841 et seq.).
    Bankruptcy remote means, with respect to an entity or asset, that 
the entity or asset would be excluded from an insolvent entity's estate 
in receivership, insolvency, liquidation, or similar proceeding.
    Call Report means Consolidated Reports of Condition and Income.
    Carrying value means, with respect to an asset, the value of the 
asset on the balance sheet of the FDIC-supervised institution, 
determined in accordance with GAAP.
    Central counterparty (CCP) means a counterparty (for example, a 
clearing house) that facilitates trades between counterparties in one 
or more financial markets by either guaranteeing trades or novating 
contracts.
    CFTC means the U.S. Commodity Futures Trading Commission.
    Clean-up call means a contractual provision that permits an 
originating FDIC-supervised institution or servicer to call 
securitization exposures before their stated maturity or call date.
    Cleared transaction means an exposure associated with an 
outstanding derivative contract or repo-style transaction that an FDIC-
supervised institution or clearing member has entered into with a 
central counterparty (that is, a transaction that a central 
counterparty has accepted).
    (1) The following transactions are cleared transactions:
    (i) A transaction between a CCP and an FDIC-supervised institution 
that is a clearing member of the CCP where the FDIC-supervised 
institution enters into the transaction with the CCP for the FDIC-
supervised institution's own account;
    (ii) A transaction between a CCP and an FDIC-supervised institution 
that is a clearing member of the CCP where the FDIC-supervised 
institution is acting as a financial intermediary on behalf of a 
clearing member client and the transaction offsets another transaction 
that satisfies the requirements set forth in Sec.  324.3(a);
    (iii) A transaction between a clearing member client FDIC-
supervised institution and a clearing member where the clearing member 
acts as a financial intermediary on behalf of the clearing member 
client and enters into an offsetting transaction with a CCP, provided 
that the requirements set forth in Sec.  324.3(a) are met; or
    (iv) A transaction between a clearing member client FDIC-supervised 
institution and a CCP where a clearing member guarantees the 
performance of the clearing member client FDIC-supervised institution 
to the CCP and the transaction meets the requirements of Sec.  
324.3(a)(2) and (3).
    (2) The exposure of an FDIC-supervised institution that is a 
clearing member to its clearing member client is not a cleared 
transaction where the FDIC-supervised institution is either acting as a 
financial intermediary and enters into an offsetting transaction with a 
CCP or where the FDIC-supervised institution provides a guarantee to 
the CCP on the performance of the client.\3\
---------------------------------------------------------------------------

    \3\ For the standardized approach treatment of these exposures, 
see Sec.  324.34(e) (OTC derivative contracts) or Sec.  324.37(c) 
(repo-style transactions). For the advanced approaches treatment of 
these exposures, see Sec.  324.132(c)(8) and (d) (OTC derivative 
contracts) or Sec.  324.132(b) and 324.132(d) (repo-style 
transactions) and for calculation of the margin period of risk, see 
Sec.  324.132(d)(5)(iii)(C) (OTC derivative contracts) and Sec.  
324.132(d)(5)(iii)(A) (repo-style transactions).
---------------------------------------------------------------------------

    Clearing member means a member of, or direct participant in, a CCP 
that is entitled to enter into transactions with the CCP.
    Clearing member client means a party to a cleared transaction 
associated with a CCP in which a clearing member acts either as a 
financial intermediary with respect to the party or guarantees the 
performance of the party to the CCP.
    Collateral agreement means a legal contract that specifies the time 
when, and circumstances under which, a counterparty is required to 
pledge collateral to an FDIC-supervised institution for a single 
financial contract or for all financial contracts in a netting set and 
confers upon the FDIC-supervised institution a perfected, first-
priority security interest (notwithstanding the prior security interest 
of any custodial agent), or the legal equivalent thereof, in the 
collateral posted by the counterparty under the agreement. This 
security interest must provide the FDIC-supervised institution with a 
right to close out the financial positions and liquidate the collateral 
upon an event of default of, or failure to perform by, the counterparty 
under the collateral agreement. A contract would not satisfy this 
requirement if the FDIC-supervised institution's exercise of rights 
under the agreement may be stayed or avoided under applicable law in 
the relevant jurisdictions, other than in receivership, 
conservatorship, resolution under the Federal Deposit Insurance Act, 
Title II of the Dodd-Frank Act, or under any similar insolvency law 
applicable to GSEs.
    Commitment means any legally binding arrangement that obligates an 
FDIC-supervised institution to extend credit or to purchase assets.
    Commodity derivative contract means a commodity-linked swap, 
purchased commodity-linked option, forward commodity-linked contract, 
or any other instrument linked to commodities that gives rise to 
similar counterparty credit risks.
    Commodity Exchange Act means the Commodity Exchange Act of 1936 (7 
U.S.C. 1 et seq.)
    Common equity tier 1 capital is defined in Sec.  324.20(b).
    Common equity tier 1 minority interest means the common equity tier 
1 capital of a depository institution or foreign bank that is:
    (1) A consolidated subsidiary of an FDIC-supervised institution; 
and
    (2) Not owned by the FDIC-supervised institution.
    Company means a corporation, partnership, limited liability 
company, depository institution, business trust, special purpose 
entity, association, or similar organization.
    Control. A person or company controls a company if it:
    (1) Owns, controls, or holds with power to vote 25 percent or more 
of a class of voting securities of the company; or
    (2) Consolidates the company for financial reporting purposes.
    Core capital means Tier 1 capital, as defined in Sec.  324.2 of 
subpart A of this part.
    Corporate exposure means an exposure to a company that is not:
    (1) An exposure to a sovereign, the Bank for International 
Settlements, the European Central Bank, the European

[[Page 55475]]

Commission, the International Monetary Fund, a multi-lateral 
development bank (MDB), a depository institution, a foreign bank, a 
credit union, or a public sector entity (PSE);
    (2) An exposure to a GSE;
    (3) A residential mortgage exposure;
    (4) A pre-sold construction loan;
    (5) A statutory multifamily mortgage;
    (6) A high volatility commercial real estate (HVCRE) exposure;
    (7) A cleared transaction;
    (8) A default fund contribution;
    (9) A securitization exposure;
    (10) An equity exposure; or
    (11) An unsettled transaction.
    Country risk classification (CRC) with respect to a sovereign, 
means the most recent consensus CRC published by the Organization for 
Economic Cooperation and Development (OECD) as of December 31st of the 
prior calendar year that provides a view of the likelihood that the 
sovereign will service its external debt.
    Covered savings and loan holding company means a top-tier savings 
and loan holding company other than:
    (1) A top-tier savings and loan holding company that is:
    (i) A grandfathered unitary savings and loan holding company as 
defined in section 10(c)(9)(A) of HOLA; and
    (ii) As of June 30 of the previous calendar year, derived 50 
percent or more of its total consolidated assets or 50 percent of its 
total revenues on an enterprise-wide basis (as calculated under GAAP) 
from activities that are not financial in nature under section 4(k) of 
the Bank Holding Company Act (12 U.S.C. 1842(k));
    (2) A top-tier savings and loan holding company that is an 
insurance underwriting company; or
    (3)(i) A top-tier savings and loan holding company that, as of June 
30 of the previous calendar year, held 25 percent or more of its total 
consolidated assets in subsidiaries that are insurance underwriting 
companies (other than assets associated with insurance for credit 
risk); and
    (ii) For purposes of paragraph 3(i) of this definition, the company 
must calculate its total consolidated assets in accordance with GAAP, 
or if the company does not calculate its total consolidated assets 
under GAAP for any regulatory purpose (including compliance with 
applicable securities laws), the company may estimate its total 
consolidated assets, subject to review and adjustment by the Federal 
Reserve.
    Credit derivative means a financial contract executed under 
standard industry credit derivative documentation that allows one party 
(the protection purchaser) to transfer the credit risk of one or more 
exposures (reference exposure(s)) to another party (the protection 
provider) for a certain period of time.
    Credit-enhancing interest-only strip (CEIO) means an on-balance 
sheet asset that, in form or in substance:
    (1) Represents a contractual right to receive some or all of the 
interest and no more than a minimal amount of principal due on the 
underlying exposures of a securitization; and
    (2) Exposes the holder of the CEIO to credit risk directly or 
indirectly associated with the underlying exposures that exceeds a pro 
rata share of the holder's claim on the underlying exposures, whether 
through subordination provisions or other credit-enhancement 
techniques.
    Credit-enhancing representations and warranties means 
representations and warranties that are made or assumed in connection 
with a transfer of underlying exposures (including loan servicing 
assets) and that obligate an FDIC-supervised institution to protect 
another party from losses arising from the credit risk of the 
underlying exposures. Credit-enhancing representations and warranties 
include provisions to protect a party from losses resulting from the 
default or nonperformance of the counterparties of the underlying 
exposures or from an insufficiency in the value of the collateral 
backing the underlying exposures. Credit-enhancing representations and 
warranties do not include:
    (1) Early default clauses and similar warranties that permit the 
return of, or premium refund clauses covering, 1-4 family residential 
first mortgage loans that qualify for a 50 percent risk weight for a 
period not to exceed 120 days from the date of transfer. These 
warranties may cover only those loans that were originated within 1 
year of the date of transfer;
    (2) Premium refund clauses that cover assets guaranteed, in whole 
or in part, by the U.S. Government, a U.S. Government agency or a GSE, 
provided the premium refund clauses are for a period not to exceed 120 
days from the date of transfer; or
    (3) Warranties that permit the return of underlying exposures in 
instances of misrepresentation, fraud, or incomplete documentation.
    Credit risk mitigant means collateral, a credit derivative, or a 
guarantee.
    Credit-risk-weighted assets means 1.06 multiplied by the sum of:
    (1) Total wholesale and retail risk-weighted assets as calculated 
under Sec.  324.131;
    (2) Risk-weighted assets for securitization exposures as calculated 
under Sec.  324.142; and
    (3) Risk-weighted assets for equity exposures as calculated under 
Sec.  324.151.
    Credit union means an insured credit union as defined under the 
Federal Credit Union Act (12 U.S.C. 1751 et seq.).
    Current exposure means, with respect to a netting set, the larger 
of zero or the fair value of a transaction or portfolio of transactions 
within the netting set that would be lost upon default of the 
counterparty, assuming no recovery on the value of the transactions. 
Current exposure is also called replacement cost.
    Current exposure methodology means the method of calculating the 
exposure amount for over-the-counter derivative contracts in Sec.  
324.34(a) and exposure at default (EAD) in Sec.  324.132(c)(5) or (6), 
as applicable.
    Custodian means a financial institution that has legal custody of 
collateral provided to a CCP.
    Default fund contribution means the funds contributed or 
commitments made by a clearing member to a CCP's mutualized loss 
sharing arrangement.
    Depository institution means a depository institution as defined in 
section 3 of the Federal Deposit Insurance Act.
    Depository institution holding company means a bank holding company 
or savings and loan holding company.
    Derivative contract means a financial contract whose value is 
derived from the values of one or more underlying assets, reference 
rates, or indices of asset values or reference rates. Derivative 
contracts include interest rate derivative contracts, exchange rate 
derivative contracts, equity derivative contracts, commodity derivative 
contracts, credit derivative contracts, and any other instrument that 
poses similar counterparty credit risks. Derivative contracts also 
include unsettled securities, commodities, and foreign exchange 
transactions with a contractual settlement or delivery lag that is 
longer than the lesser of the market standard for the particular 
instrument or five business days.
    Discretionary bonus payment means a payment made to an executive 
officer of an FDIC-supervised institution, where:
    (1) The FDIC-supervised institution retains discretion as to 
whether to make, and the amount of, the payment until the payment is 
awarded to the executive officer;
    (2) The amount paid is determined by the FDIC-supervised 
institution without

[[Page 55476]]

prior promise to, or agreement with, the executive officer; and
    (3) The executive officer has no contractual right, whether express 
or implied, to the bonus payment.
    Distribution means:
    (1) A reduction of tier 1 capital through the repurchase of a tier 
1 capital instrument or by other means, except when an FDIC-supervised 
institution, within the same quarter when the repurchase is announced, 
fully replaces a tier 1 capital instrument it has repurchased by 
issuing another capital instrument that meets the eligibility criteria 
for:
    (i) A common equity tier 1 capital instrument if the instrument 
being repurchased was part of the FDIC-supervised institution's common 
equity tier 1 capital, or
    (ii) A common equity tier 1 or additional tier 1 capital instrument 
if the instrument being repurchased was part of the FDIC-supervised 
institution's tier 1 capital;
    (2) A reduction of tier 2 capital through the repurchase, or 
redemption prior to maturity, of a tier 2 capital instrument or by 
other means, except when an FDIC-supervised institution, within the 
same quarter when the repurchase or redemption is announced, fully 
replaces a tier 2 capital instrument it has repurchased by issuing 
another capital instrument that meets the eligibility criteria for a 
tier 1 or tier 2 capital instrument;
    (3) A dividend declaration or payment on any tier 1 capital 
instrument;
    (4) A dividend declaration or interest payment on any tier 2 
capital instrument if the FDIC-supervised institution has full 
discretion to permanently or temporarily suspend such payments without 
triggering an event of default; or
    (5) Any similar transaction that the FDIC determines to be in 
substance a distribution of capital.
    Dodd-Frank Act means the Dodd-Frank Wall Street Reform and Consumer 
Protection Act of 2010 (Pub. L. 111-203, 124 Stat. 1376).
    Early amortization provision means a provision in the documentation 
governing a securitization that, when triggered, causes investors in 
the securitization exposures to be repaid before the original stated 
maturity of the securitization exposures, unless the provision:
    (1) Is triggered solely by events not directly related to the 
performance of the underlying exposures or the originating FDIC-
supervised institution (such as material changes in tax laws or 
regulations); or
    (2) Leaves investors fully exposed to future draws by borrowers on 
the underlying exposures even after the provision is triggered.
    Effective notional amount means for an eligible guarantee or 
eligible credit derivative, the lesser of the contractual notional 
amount of the credit risk mitigant and the exposure amount (or EAD for 
purposes of subpart E of this part) of the hedged exposure, multiplied 
by the percentage coverage of the credit risk mitigant.
    Eligible ABCP liquidity facility means a liquidity facility 
supporting ABCP, in form or in substance, that is subject to an asset 
quality test at the time of draw that precludes funding against assets 
that are 90 days or more past due or in default. Notwithstanding the 
preceding sentence, a liquidity facility is an eligible ABCP liquidity 
facility if the assets or exposures funded under the liquidity facility 
that do not meet the eligibility requirements are guaranteed by a 
sovereign that qualifies for a 20 percent risk weight or lower.
    Eligible clean-up call means a clean-up call that:
    (1) Is exercisable solely at the discretion of the originating 
FDIC-supervised institution or servicer;
    (2) Is not structured to avoid allocating losses to securitization 
exposures held by investors or otherwise structured to provide credit 
enhancement to the securitization; and
    (3)(i) For a traditional securitization, is only exercisable when 
10 percent or less of the principal amount of the underlying exposures 
or securitization exposures (determined as of the inception of the 
securitization) is outstanding; or
    (ii) For a synthetic securitization, is only exercisable when 10 
percent or less of the principal amount of the reference portfolio of 
underlying exposures (determined as of the inception of the 
securitization) is outstanding.
    Eligible credit derivative means a credit derivative in the form of 
a credit default swap, nth-to-default swap, total return swap, or any 
other form of credit derivative approved by the FDIC, provided that:
    (1) The contract meets the requirements of an eligible guarantee 
and has been confirmed by the protection purchaser and the protection 
provider;
    (2) Any assignment of the contract has been confirmed by all 
relevant parties;
    (3) If the credit derivative is a credit default swap or nth-to-
default swap, the contract includes the following credit events:
    (i) Failure to pay any amount due under the terms of the reference 
exposure, subject to any applicable minimal payment threshold that is 
consistent with standard market practice and with a grace period that 
is closely in line with the grace period of the reference exposure; and
    (ii) Receivership, insolvency, liquidation, conservatorship or 
inability of the reference exposure issuer to pay its debts, or its 
failure or admission in writing of its inability generally to pay its 
debts as they become due, and similar events;
    (4) The terms and conditions dictating the manner in which the 
contract is to be settled are incorporated into the contract;
    (5) If the contract allows for cash settlement, the contract 
incorporates a robust valuation process to estimate loss reliably and 
specifies a reasonable period for obtaining post-credit event 
valuations of the reference exposure;
    (6) If the contract requires the protection purchaser to transfer 
an exposure to the protection provider at settlement, the terms of at 
least one of the exposures that is permitted to be transferred under 
the contract provide that any required consent to transfer may not be 
unreasonably withheld;
    (7) If the credit derivative is a credit default swap or nth-to-
default swap, the contract clearly identifies the parties responsible 
for determining whether a credit event has occurred, specifies that 
this determination is not the sole responsibility of the protection 
provider, and gives the protection purchaser the right to notify the 
protection provider of the occurrence of a credit event; and
    (8) If the credit derivative is a total return swap and the FDIC-
supervised institution records net payments received on the swap as net 
income, the FDIC-supervised institution records offsetting 
deterioration in the value of the hedged exposure (either through 
reductions in fair value or by an addition to reserves).
    Eligible credit reserves means all general allowances that have 
been established through a charge against earnings to cover estimated 
credit losses associated with on- or off-balance sheet wholesale and 
retail exposures, including the ALLL associated with such exposures, 
but excluding allocated transfer risk reserves established pursuant to 
12 U.S.C. 3904 and other specific reserves created against recognized 
losses.
    Eligible guarantee means a guarantee from an eligible guarantor 
that:
    (1) Is written;
    (2) Is either:
    (i) Unconditional, or

[[Page 55477]]

    (ii) A contingent obligation of the U.S. government or its 
agencies, the enforceability of which is dependent upon some 
affirmative action on the part of the beneficiary of the guarantee or a 
third party (for example, meeting servicing requirements);
    (3) Covers all or a pro rata portion of all contractual payments of 
the obligated party on the reference exposure;
    (4) Gives the beneficiary a direct claim against the protection 
provider;
    (5) Is not unilaterally cancelable by the protection provider for 
reasons other than the breach of the contract by the beneficiary;
    (6) Except for a guarantee by a sovereign, is legally enforceable 
against the protection provider in a jurisdiction where the protection 
provider has sufficient assets against which a judgment may be attached 
and enforced;
    (7) Requires the protection provider to make payment to the 
beneficiary on the occurrence of a default (as defined in the 
guarantee) of the obligated party on the reference exposure in a timely 
manner without the beneficiary first having to take legal actions to 
pursue the obligor for payment;
    (8) Does not increase the beneficiary's cost of credit protection 
on the guarantee in response to deterioration in the credit quality of 
the reference exposure; and
    (9) Is not provided by an affiliate of the FDIC-supervised 
institution, unless the affiliate is an insured depository institution, 
foreign bank, securities broker or dealer, or insurance company that:
    (i) Does not control the FDIC-supervised institution; and
    (ii) Is subject to consolidated supervision and regulation 
comparable to that imposed on depository institutions, U.S. securities 
broker-dealers, or U.S. insurance companies (as the case may be).
    Eligible guarantor means:
    (1) A sovereign, the Bank for International Settlements, the 
International Monetary Fund, the European Central Bank, the European 
Commission, a Federal Home Loan Bank, Federal Agricultural Mortgage 
Corporation (Farmer Mac), a multilateral development bank (MDB), a 
depository institution, a bank holding company, a savings and loan 
holding company, a credit union, a foreign bank, or a qualifying 
central counterparty; or
    (2) An entity (other than a special purpose entity):
    (i) That at the time the guarantee is issued or anytime thereafter, 
has issued and outstanding an unsecured debt security without credit 
enhancement that is investment grade;
    (ii) Whose creditworthiness is not positively correlated with the 
credit risk of the exposures for which it has provided guarantees; and
    (iii) That is not an insurance company engaged predominately in the 
business of providing credit protection (such as a monoline bond 
insurer or re-insurer).
    Eligible margin loan means:
    (1) An extension of credit where:
    (i) The extension of credit is collateralized exclusively by liquid 
and readily marketable debt or equity securities, or gold;
    (ii) The collateral is marked to fair value daily, and the 
transaction is subject to daily margin maintenance requirements; and
    (iii) The extension of credit is conducted under an agreement that 
provides the FDIC-supervised institution the right to accelerate and 
terminate the extension of credit and to liquidate or set off 
collateral promptly upon an event of default, including upon an event 
of receivership, insolvency, liquidation, conservatorship, or similar 
proceeding, of the counterparty, provided that, in any such case, any 
exercise of rights under the agreement will not be stayed or avoided 
under applicable law in the relevant jurisdictions, other than in 
receivership, conservatorship, resolution under the Federal Deposit 
Insurance Act, Title II of the Dodd-Frank Act, or under any similar 
insolvency law applicable to GSEs.\4\
---------------------------------------------------------------------------

    \4\ This requirement is met where all transactions under the 
agreement are (i) executed under U.S. law and (ii) constitute 
``securities contracts'' under section 555 of the Bankruptcy Code 
(11 U.S.C. 555), qualified financial contracts under section 
11(e)(8) of the Federal Deposit Insurance Act, or netting contracts 
between or among financial institutions under sections 401-407 of 
the Federal Deposit Insurance Corporation Improvement Act or the 
Federal Reserve Board's Regulation EE (12 CFR part 231).
---------------------------------------------------------------------------

    (2) In order to recognize an exposure as an eligible margin loan 
for purposes of this subpart, an FDIC-supervised institution must 
comply with the requirements of Sec.  324.3(b) with respect to that 
exposure.
    Eligible servicer cash advance facility means a servicer cash 
advance facility in which:
    (1) The servicer is entitled to full reimbursement of advances, 
except that a servicer may be obligated to make non-reimbursable 
advances for a particular underlying exposure if any such advance is 
contractually limited to an insignificant amount of the outstanding 
principal balance of that exposure;
    (2) The servicer's right to reimbursement is senior in right of 
payment to all other claims on the cash flows from the underlying 
exposures of the securitization; and
    (3) The servicer has no legal obligation to, and does not make 
advances to the securitization if the servicer concludes the advances 
are unlikely to be repaid.
    Employee stock ownership plan has the same meaning as in 29 CFR 
2550.407d-6.
    Equity derivative contract means an equity-linked swap, purchased 
equity-linked option, forward equity-linked contract, or any other 
instrument linked to equities that gives rise to similar counterparty 
credit risks.
    Equity exposure means:
    (1) A security or instrument (whether voting or non-voting) that 
represents a direct or an indirect ownership interest in, and is a 
residual claim on, the assets and income of a company, unless:
    (i) The issuing company is consolidated with the FDIC-supervised 
institution under GAAP;
    (ii) The FDIC-supervised institution is required to deduct the 
ownership interest from tier 1 or tier 2 capital under this part;
    (iii) The ownership interest incorporates a payment or other 
similar obligation on the part of the issuing company (such as an 
obligation to make periodic payments); or
    (iv) The ownership interest is a securitization exposure;
    (2) A security or instrument that is mandatorily convertible into a 
security or instrument described in paragraph (1) of this definition;
    (3) An option or warrant that is exercisable for a security or 
instrument described in paragraph (1) of this definition; or
    (4) Any other security or instrument (other than a securitization 
exposure) to the extent the return on the security or instrument is 
based on the performance of a security or instrument described in 
paragraph (1) of this definition.
    ERISA means the Employee Retirement Income and Security Act of 1974 
(29 U.S.C. 1001 et seq.).
    Exchange rate derivative contract means a cross-currency interest 
rate swap, forward foreign-exchange contract, currency option 
purchased, or any other instrument linked to exchange rates that gives 
rise to similar counterparty credit risks.
    Executive officer means a person who holds the title or, without 
regard to title, salary, or compensation, performs the function of one 
or more of the following positions: president, chief executive officer, 
executive chairman, chief

[[Page 55478]]

operating officer, chief financial officer, chief investment officer, 
chief legal officer, chief lending officer, chief risk officer, or head 
of a major business line, and other staff that the board of directors 
of the FDIC-supervised institution deems to have equivalent 
responsibility.
    Expected credit loss (ECL) means:
    (1) For a wholesale exposure to a non-defaulted obligor or segment 
of non-defaulted retail exposures that is carried at fair value with 
gains and losses flowing through earnings or that is classified as 
held-for-sale and is carried at the lower of cost or fair value with 
losses flowing through earnings, zero.
    (2) For all other wholesale exposures to non-defaulted obligors or 
segments of non-defaulted retail exposures, the product of the 
probability of default (PD) times the loss given default (LGD) times 
the exposure at default (EAD) for the exposure or segment.
    (3) For a wholesale exposure to a defaulted obligor or segment of 
defaulted retail exposures, the FDIC-supervised institution's 
impairment estimate for allowance purposes for the exposure or segment.
    (4) Total ECL is the sum of expected credit losses for all 
wholesale and retail exposures other than exposures for which the FDIC-
supervised institution has applied the double default treatment in 
Sec.  324.135.
    Exposure amount means:
    (1) For the on-balance sheet component of an exposure (other than 
an available-for-sale or held-to-maturity security, if the FDIC-
supervised institution has made an AOCI opt-out election (as defined in 
Sec.  324.22(b)(2)); an OTC derivative contract; a repo-style 
transaction or an eligible margin loan for which the FDIC-supervised 
institution determines the exposure amount under Sec.  324.37; a 
cleared transaction; a default fund contribution; or a securitization 
exposure), the FDIC-supervised institution's carrying value of the 
exposure.
    (2) For a security (that is not a securitization exposure, an 
equity exposure, or preferred stock classified as an equity security 
under GAAP) classified as available-for-sale or held-to-maturity if the 
FDIC-supervised institution has made an AOCI opt-out election (as 
defined in Sec.  324.22(b)(2)), the FDIC-supervised institution's 
carrying value (including net accrued but unpaid interest and fees) for 
the exposure less any net unrealized gains on the exposure and plus any 
net unrealized losses on the exposure.
    (3) For available-for-sale preferred stock classified as an equity 
security under GAAP if the FDIC-supervised institution has made an AOCI 
opt-out election (as defined in Sec.  324.22(b)(2)), the FDIC-
supervised institution's carrying value of the exposure less any net 
unrealized gains on the exposure that are reflected in such carrying 
value but excluded from the FDIC-supervised institution's regulatory 
capital components.
    (4) For the off-balance sheet component of an exposure (other than 
an OTC derivative contract; a repo-style transaction or an eligible 
margin loan for which the FDIC-supervised institution calculates the 
exposure amount under Sec.  324.37; a cleared transaction; a default 
fund contribution; or a securitization exposure), the notional amount 
of the off-balance sheet component multiplied by the appropriate credit 
conversion factor (CCF) in Sec.  324.33.
    (5) For an exposure that is an OTC derivative contract, the 
exposure amount determined under Sec.  324.34;
    (6) For an exposure that is a cleared transaction, the exposure 
amount determined under Sec.  324.35.
    (7) For an exposure that is an eligible margin loan or repo-style 
transaction for which the FDIC-supervised institution calculates the 
exposure amount as provided in Sec.  324.37, the exposure amount 
determined under Sec.  324.37.
    (8) For an exposure that is a securitization exposure, the exposure 
amount determined under Sec.  324.42.
    FDIC-supervised institution means any bank or state savings 
association.
    Federal Deposit Insurance Act means the Federal Deposit Insurance 
Act (12 U.S.C. 1811 et seq.).
    Federal Deposit Insurance Corporation Improvement Act means the 
Federal Deposit Insurance Corporation Improvement Act of 1991 ((Pub. L. 
102-242, 105 Stat. 2236).
    Federal Reserve means the Board of Governors of the Federal Reserve 
System.
    Financial collateral means collateral:
    (1) In the form of:
    (i) Cash on deposit with the FDIC-supervised institution (including 
cash held for the FDIC-supervised institution by a third-party 
custodian or trustee);
    (ii) Gold bullion;
    (iii) Long-term debt securities that are not resecuritization 
exposures and that are investment grade;
    (iv) Short-term debt instruments that are not resecuritization 
exposures and that are investment grade;
    (v) Equity securities that are publicly traded;
    (vi) Convertible bonds that are publicly traded; or
    (vii) Money market fund shares and other mutual fund shares if a 
price for the shares is publicly quoted daily; and
    (2) In which the FDIC-supervised institution has a perfected, 
first-priority security interest or, outside of the United States, the 
legal equivalent thereof (with the exception of cash on deposit and 
notwithstanding the prior security interest of any custodial agent).
    Financial institution means:
    (1) A bank holding company; savings and loan holding company; 
nonbank financial institution supervised by the Federal Reserve under 
Title I of the Dodd-Frank Act; depository institution; foreign bank; 
credit union; industrial loan company, industrial bank, or other 
similar institution described in section 2 of the Bank Holding Company 
Act; national association, state member bank, or state non-member bank 
that is not a depository institution; insurance company; securities 
holding company as defined in section 618 of the Dodd-Frank Act; broker 
or dealer registered with the SEC under section 15 of the Securities 
Exchange Act; futures commission merchant as defined in section 1a of 
the Commodity Exchange Act; swap dealer as defined in section 1a of the 
Commodity Exchange Act; or security-based swap dealer as defined in 
section 3 of the Securities Exchange Act;
    (2) Any designated financial market utility, as defined in section 
803 of the Dodd-Frank Act;
    (3) Any entity not domiciled in the United States (or a political 
subdivision thereof) that is supervised and regulated in a manner 
similar to entities described in paragraphs (1) or (2) of this 
definition; or
    (4) Any other company:
    (i) Of which the FDIC-supervised institution owns:
    (A) An investment in GAAP equity instruments of the company with an 
adjusted carrying value or exposure amount equal to or greater than $10 
million; or
    (B) More than 10 percent of the company's issued and outstanding 
common shares (or similar equity interest), and
    (ii) Which is predominantly engaged in the following activities:
    (A) Lending money, securities or other financial instruments, 
including servicing loans;
    (B) Insuring, guaranteeing, indemnifying against loss, harm, 
damage, illness, disability, or death, or issuing annuities;
    (C) Underwriting, dealing in, making a market in, or investing as 
principal in securities or other financial instruments; or
    (D) Asset management activities (not including investment or 
financial advisory activities).

[[Page 55479]]

    (5) For the purposes of this definition, a company is 
``predominantly engaged'' in an activity or activities if:
    (i) 85 percent or more of the total consolidated annual gross 
revenues (as determined in accordance with applicable accounting 
standards) of the company is either of the two most recent calendar 
years were derived, directly or indirectly, by the company on a 
consolidated basis from the activities; or
    (ii) 85 percent or more of the company's consolidated total assets 
(as determined in accordance with applicable accounting standards) as 
of the end of either of the two most recent calendar years were related 
to the activities.
    (6) Any other company that the FDIC may determine is a financial 
institution based on activities similar in scope, nature, or operation 
to those of the entities included in (1) through (4).
    (7) For purposes of this part, ``financial institution'' does not 
include the following entities:
    (i) GSEs;
    (ii) Small business investment companies, as defined in section 102 
of the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.);
    (iii) Entities designated as Community Development Financial 
Institutions (CDFIs) under 12 U.S.C. 4701 et seq. and 12 CFR part 1805;
    (iv) Entities registered with the SEC under the Investment Company 
Act or foreign equivalents thereof;
    (v) Entities to the extent that the FDIC-supervised institution's 
investment in such entities would qualify as a community development 
investment under section 24 (Eleventh) of the National Bank Act; and
    (vi) An employee benefit plan as defined in paragraphs (3) and (32) 
of section 3 of ERISA, a ``governmental plan'' (as defined in 29 U.S.C. 
1002(32)) that complies with the tax deferral qualification 
requirements provided in the Internal Revenue Code, or any similar 
employee benefit plan established under the laws of a foreign 
jurisdiction.
    First-lien residential mortgage exposure means a residential 
mortgage exposure secured by a first lien.
    Foreign bank means a foreign bank as defined in Sec.  211.2 of the 
Federal Reserve's Regulation K (12 CFR 211.2) (other than a depository 
institution).
    Forward agreement means a legally binding contractual obligation to 
purchase assets with certain drawdown at a specified future date, not 
including commitments to make residential mortgage loans or forward 
foreign exchange contracts.
    GAAP means generally accepted accounting principles as used in the 
United States.
    Gain-on-sale means an increase in the equity capital of an FDIC-
supervised institution (as reported on Schedule RC of the Call Report) 
resulting from a traditional securitization (other than an increase in 
equity capital resulting from the FDIC-supervised institution's receipt 
of cash in connection with the securitization or reporting of a 
mortgage servicing asset on Schedule RC of the Call Report.
    General obligation means a bond or similar obligation that is 
backed by the full faith and credit of a public sector entity (PSE).
    Government-sponsored enterprise (GSE) means an entity established 
or chartered by the U.S. government to serve public purposes specified 
by the U.S. Congress but whose debt obligations are not explicitly 
guaranteed by the full faith and credit of the U.S. government.
    Guarantee means a financial guarantee, letter of credit, insurance, 
or other similar financial instrument (other than a credit derivative) 
that allows one party (beneficiary) to transfer the credit risk of one 
or more specific exposures (reference exposure) to another party 
(protection provider).
    High volatility commercial real estate (HVCRE) exposure means a 
credit facility that, prior to conversion to permanent financing, 
finances or has financed the acquisition, development, or construction 
(ADC) of real property, unless the facility finances:
    (1) One- to four-family residential properties;
    (2) Real property that:
    (i) Would qualify as an investment in community development under 
12 U.S.C. 338a or 12 U.S.C. 24 (Eleventh), as applicable, or as a 
``qualified investment'' under 12 CFR part 345, and
    (ii) Is not an ADC loan to any entity described in 12 CFR 
345.12(g)(3), unless it is otherwise described in paragraph (1), 
(2)(i), (3) or (4) of this definition;
    (3) The purchase or development of agricultural land, which 
includes all land known to be used or usable for agricultural purposes 
(such as crop and livestock production), provided that the valuation of 
the agricultural land is based on its value for agricultural purposes 
and the valuation does not take into consideration any potential use of 
the land for non-agricultural commercial development or residential 
development; or
    (4) Commercial real estate projects in which:
    (i) The loan-to-value ratio is less than or equal to the applicable 
maximum supervisory loan-to-value ratio in the FDIC's real estate 
lending standards at 12 CFR part 365, subpart A (state nonmember 
banks), 12 CFR 390.264 and 390.265 (state savings associations);
    (ii) The borrower has contributed capital to the project in the 
form of cash or unencumbered readily marketable assets (or has paid 
development expenses out-of-pocket) of at least 15 percent of the real 
estate's appraised ``as completed'' value; and
    (iii) The borrower contributed the amount of capital required by 
paragraph (4)(ii) of this definition before the FDIC-supervised 
institution advances funds under the credit facility, and the capital 
contributed by the borrower, or internally generated by the project, is 
contractually required to remain in the project throughout the life of 
the project. The life of a project concludes only when the credit 
facility is converted to permanent financing or is sold or paid in 
full. Permanent financing may be provided by the FDIC-supervised 
institution that provided the ADC facility as long as the permanent 
financing is subject to the FDIC-supervised institution's underwriting 
criteria for long-term mortgage loans.
    Home country means the country where an entity is incorporated, 
chartered, or similarly established.
    Identified losses means:
    (1) When measured as of the date of examination of an FDIC-
supervised institution, those items that have been determined by an 
evaluation made by a state or Federal examiner as of that date to be 
chargeable against income, capital and/or general valuation allowances 
such as the allowance for loan and lease losses (examples of identified 
losses would be assets classified loss, off-balance sheet items 
classified loss, any provision expenses that are necessary for the 
FDIC-supervised institution to record in order to replenish its general 
valuation allowances to an adequate level, liabilities not shown on the 
FDIC-supervised institution's books, estimated losses in contingent 
liabilities, and differences in accounts which represent shortages); 
and
    (2) When measured as of any other date, those items:
    (i) That have been determined--
    (A) By an evaluation made by a state or Federal examiner at the 
most recent examination of an FDIC-supervised institution to be 
chargeable against income, capital and/or general valuation allowances; 
or
    (B) By evaluations made by the FDIC-supervised institution since 
its most recent examination to be chargeable against income, capital 
and/or general valuation allowances; and

[[Page 55480]]

    (ii) For which the appropriate accounting entries to recognize the 
loss have not yet been made on the FDIC-supervised institution's books 
nor has the item been collected or otherwise settled.
    Indirect exposure means an exposure that arises from the FDIC-
supervised institution's investment in an investment fund which holds 
an investment in the FDIC-supervised institution's own capital 
instrument or an investment in the capital of an unconsolidated 
financial institution.
    Insurance company means an insurance company as defined in section 
201 of the Dodd-Frank Act (12 U.S.C. 5381).
    Insurance underwriting company means an insurance company as 
defined in section 201 of the Dodd-Frank Act (12 U.S.C. 5381) that 
engages in insurance underwriting activities.
    Insured depository institution means an insured depository 
institution as defined in section 3 of the Federal Deposit Insurance 
Act.
    Interest rate derivative contract means a single-currency interest 
rate swap, basis swap, forward rate agreement, purchased interest rate 
option, when-issued securities, or any other instrument linked to 
interest rates that gives rise to similar counterparty credit risks.
    International Lending Supervision Act means the International 
Lending Supervision Act of 1983 (12 U.S.C. 3901 et seq.).
    Investing bank means, with respect to a securitization, an FDIC-
supervised institution that assumes the credit risk of a securitization 
exposure (other than an originating FDIC-supervised institution of the 
securitization). In the typical synthetic securitization, the investing 
FDIC-supervised institution sells credit protection on a pool of 
underlying exposures to the originating FDIC-supervised institution.
    Investment Company Act means the Investment Company Act of 1940 (15 
U.S.C. 80 a-1 et seq.)
    Investment fund means a company:
    (1) Where all or substantially all of the assets of the company are 
financial assets; and
    (2) That has no material liabilities.
    Investment grade means that the entity to which the FDIC-supervised 
institution is exposed through a loan or security, or the reference 
entity with respect to a credit derivative, has adequate capacity to 
meet financial commitments for the projected life of the asset or 
exposure. Such an entity or reference entity has adequate capacity to 
meet financial commitments if the risk of its default is low and the 
full and timely repayment of principal and interest is expected.
    Investment in the capital of an unconsolidated financial 
institution means a net long position calculated in accordance with 
Sec.  324.22(h) in an instrument that is recognized as capital for 
regulatory purposes by the primary supervisor of an unconsolidated 
regulated financial institution and is an instrument that is part of 
the GAAP equity of an unconsolidated unregulated financial institution, 
including direct, indirect, and synthetic exposures to capital 
instruments, excluding underwriting positions held by the FDIC-
supervised institution for five or fewer business days.
    Investment in the FDIC-supervised institution's own capital 
instrument means a net long position calculated in accordance with 
Sec.  324.22(h) in the FDIC-supervised institution's own common stock 
instrument, own additional tier 1 capital instrument or own tier 2 
capital instrument, including direct, indirect, or synthetic exposures 
to such capital instruments. An investment in the FDIC-supervised 
institution's own capital instrument includes any contractual 
obligation to purchase such capital instrument.
    Junior-lien residential mortgage exposure means a residential 
mortgage exposure that is not a first-lien residential mortgage 
exposure.
    Main index means the Standard & Poor's 500 Index, the FTSE All-
World Index, and any other index for which the FDIC-supervised 
institution can demonstrate to the satisfaction of the FDIC that the 
equities represented in the index have comparable liquidity, depth of 
market, and size of bid-ask spreads as equities in the Standard & 
Poor's 500 Index and FTSE All-World Index.
    Market risk FDIC-supervised institution means an FDIC-supervised 
institution that is described in Sec.  324.201(b).
    Money market fund means an investment fund that is subject to 17 
CFR 270.2a-7 or any foreign equivalent thereof.
    Mortgage servicing assets (MSAs) means the contractual rights owned 
by an FDIC-supervised institution to service for a fee mortgage loans 
that are owned by others.
    Multilateral development bank (MDB) means the International Bank 
for Reconstruction and Development, the Multilateral Investment 
Guarantee Agency, the International Finance Corporation, the Inter-
American Development Bank, the Asian Development Bank, the African 
Development Bank, the European Bank for Reconstruction and Development, 
the European Investment Bank, the European Investment Fund, the Nordic 
Investment Bank, the Caribbean Development Bank, the Islamic 
Development Bank, the Council of Europe Development Bank, and any other 
multilateral lending institution or regional development bank in which 
the U.S. government is a shareholder or contributing member or which 
the FDIC determines poses comparable credit risk.
    National Bank Act means the National Bank Act (12 U.S.C. 1 et 
seq.).
    Netting set means a group of transactions with a single 
counterparty that are subject to a qualifying master netting agreement 
or a qualifying cross-product master netting agreement. For purposes of 
calculating risk-based capital requirements using the internal models 
methodology in subpart E of this part, this term does not cover a 
transaction:
    (1) That is not subject to such a master netting agreement, or
    (2) Where the FDIC-supervised institution has identified specific 
wrong-way risk.
    Non-significant investment in the capital of an unconsolidated 
financial institution means an investment in the capital of an 
unconsolidated financial institution where the FDIC-supervised 
institution owns 10 percent or less of the issued and outstanding 
common stock of the unconsolidated financial institution.
    N\th\-to-default credit derivative means a credit derivative that 
provides credit protection only for the nth-defaulting reference 
exposure in a group of reference exposures.
    OCC means the Office of the Comptroller of the Currency, U.S. 
Treasury.
    Operating entity means a company established to conduct business 
with clients with the intention of earning a profit in its own right.
    Original maturity with respect to an off-balance sheet commitment 
means the length of time between the date a commitment is issued and:
    (1) For a commitment that is not subject to extension or renewal, 
the stated expiration date of the commitment; or
    (2) For a commitment that is subject to extension or renewal, the 
earliest date on which the FDIC-supervised institution can, at its 
option, unconditionally cancel the commitment.
    Originating FDIC-supervised institution, with respect to a 
securitization, means an FDIC-supervised institution that:

[[Page 55481]]

    (1) Directly or indirectly originated or securitized the underlying 
exposures included in the securitization; or
    (2) Serves as an ABCP program sponsor to the securitization.
    Over-the-counter (OTC) derivative contract means a derivative 
contract that is not a cleared transaction. An OTC derivative includes 
a transaction:
    (1) Between an FDIC-supervised institution that is a clearing 
member and a counterparty where the FDIC-supervised institution is 
acting as a financial intermediary and enters into a cleared 
transaction with a CCP that offsets the transaction with the 
counterparty; or
    (2) In which an FDIC-supervised institution that is a clearing 
member provides a CCP a guarantee on the performance of the 
counterparty to the transaction.
    Performance standby letter of credit (or performance bond) means an 
irrevocable obligation of an FDIC-supervised institution to pay a 
third-party beneficiary when a customer (account party) fails to 
perform on any contractual nonfinancial or commercial obligation. To 
the extent permitted by law or regulation, performance standby letters 
of credit include arrangements backing, among other things, 
subcontractors' and suppliers' performance, labor and materials 
contracts, and construction bids.
    Pre-sold construction loan means any one-to-four family residential 
construction loan to a builder that meets the requirements of section 
618(a)(1) or (2) of the Resolution Trust Corporation Refinancing, 
Restructuring, and Improvement Act of 1991 (Pub. L. 102-233, 105 Stat. 
1761) and the following criteria:
    (1) The loan is made in accordance with prudent underwriting 
standards, meaning that the FDIC-supervised institution has obtained 
sufficient documentation that the buyer of the home has a legally 
binding written sales contract and has a firm written commitment for 
permanent financing of the home upon completion;
    (2) The purchaser is an individual(s) that intends to occupy the 
residence and is not a partnership, joint venture, trust, corporation, 
or any other entity (including an entity acting as a sole 
proprietorship) that is purchasing one or more of the residences for 
speculative purposes;
    (3) The purchaser has entered into a legally binding written sales 
contract for the residence;
    (4) The purchaser has not terminated the contract;
    (5) The purchaser has made a substantial earnest money deposit of 
no less than 3 percent of the sales price, which is subject to 
forfeiture if the purchaser terminates the sales contract; provided 
that, the earnest money deposit shall not be subject to forfeiture by 
reason of breach or termination of the sales contract on the part of 
the builder;
    (6) The earnest money deposit must be held in escrow by the FDIC-
supervised institution or an independent party in a fiduciary capacity, 
and the escrow agreement must provide that in an event of default 
arising from the cancellation of the sales contract by the purchaser of 
the residence, the escrow funds shall be used to defray any cost 
incurred by the FDIC-supervised institution;
    (7) The builder must incur at least the first 10 percent of the 
direct costs of construction of the residence (that is, actual costs of 
the land, labor, and material) before any drawdown is made under the 
loan;
    (8) The loan may not exceed 80 percent of the sales price of the 
presold residence; and
    (9) The loan is not more than 90 days past due, or on nonaccrual.
    Protection amount (P) means, with respect to an exposure hedged by 
an eligible guarantee or eligible credit derivative, the effective 
notional amount of the guarantee or credit derivative, reduced to 
reflect any currency mismatch, maturity mismatch, or lack of 
restructuring coverage (as provided in Sec.  324.36 or Sec.  324.134, 
as appropriate).
    Publicly-traded means traded on:
    (1) Any exchange registered with the SEC as a national securities 
exchange under section 6 of the Securities Exchange Act; or
    (2) Any non-U.S.-based securities exchange that:
    (i) Is registered with, or approved by, a national securities 
regulatory authority; and
    (ii) Provides a liquid, two-way market for the instrument in 
question.
    Public sector entity (PSE) means a state, local authority, or other 
governmental subdivision below the sovereign level.
    Qualifying central counterparty (QCCP) means a central counterparty 
that:
    (1)(i) Is a designated financial market utility (FMU) under Title 
VIII of the Dodd-Frank Act;
    (ii) If not located in the United States, is regulated and 
supervised in a manner equivalent to a designated FMU; or
    (iii) Meets the following standards:
    (A) The central counterparty requires all parties to contracts 
cleared by the counterparty to be fully collateralized on a daily 
basis;
    (B) The FDIC-supervised institution demonstrates to the 
satisfaction of the FDIC that the central counterparty:
    (1) Is in sound financial condition;
    (2) Is subject to supervision by the Federal Reserve, the CFTC, or 
the Securities Exchange Commission (SEC), or, if the central 
counterparty is not located in the United States, is subject to 
effective oversight by a national supervisory authority in its home 
country; and
    (3) Meets or exceeds the risk-management standards for central 
counterparties set forth in regulations established by the Federal 
Reserve, the CFTC, or the SEC under Title VII or Title VIII of the 
Dodd-Frank Act; or if the central counterparty is not located in the 
United States, meets or exceeds similar risk-management standards 
established under the law of its home country that are consistent with 
international standards for central counterparty risk management as 
established by the relevant standard setting body of the Bank of 
International Settlements; and
    (2)(i) Provides the FDIC-supervised institution with the central 
counterparty's hypothetical capital requirement or the information 
necessary to calculate such hypothetical capital requirement, and other 
information the FDIC-supervised institution is required to obtain under 
Sec. Sec.  324.35(d)(3) and 324.133(d)(3);
    (ii) Makes available to the FDIC and the CCP's regulator the 
information described in paragraph (2)(i) of this definition; and
    (iii) Has not otherwise been determined by the FDIC to not be a 
QCCP due to its financial condition, risk profile, failure to meet 
supervisory risk management standards, or other weaknesses or 
supervisory concerns that are inconsistent with the risk weight 
assigned to qualifying central counterparties under Sec. Sec.  324.35 
and 324.133.
    (3) Exception. A QCCP that fails to meet the requirements of a QCCP 
in the future may still be treated as a QCCP under the conditions 
specified in Sec.  324.3(f).
    Qualifying master netting agreement means a written, legally 
enforceable agreement provided that:
    (1) The agreement creates a single legal obligation for all 
individual transactions covered by the agreement upon an event of 
default, including upon an event of receivership, insolvency, 
liquidation, or similar proceeding, of the counterparty;
    (2) The agreement provides the FDIC-supervised institution the 
right to accelerate, terminate, and close-out on a

[[Page 55482]]

net basis all transactions under the agreement and to liquidate or set 
off collateral promptly upon an event of default, including upon an 
event of receivership, insolvency, liquidation, or similar proceeding, 
of the counterparty, provided that, in any such case, any exercise of 
rights under the agreement will not be stayed or avoided under 
applicable law in the relevant jurisdictions, other than in 
receivership, conservatorship, resolution under the Federal Deposit 
Insurance Act, Title II of the Dodd-Frank Act, or under any similar 
insolvency law applicable to GSEs;
    (3) The agreement does not contain a walkaway clause (that is, a 
provision that permits a non-defaulting counterparty to make a lower 
payment than it otherwise would make under the agreement, or no payment 
at all, to a defaulter or the estate of a defaulter, even if the 
defaulter or the estate of the defaulter is a net creditor under the 
agreement); and
    (4) In order to recognize an agreement as a qualifying master 
netting agreement for purposes of this subpart, an FDIC-supervised 
institution must comply with the requirements of Sec.  324.3(d) with 
respect to that agreement.
    Regulated financial institution means a financial institution 
subject to consolidated supervision and regulation comparable to that 
imposed on the following U.S. financial institutions: Depository 
institutions, depository institution holding companies, nonbank 
financial companies supervised by the Federal Reserve, designated 
financial market utilities, securities broker-dealers, credit unions, 
or insurance companies.
    Repo-style transaction means a repurchase or reverse repurchase 
transaction, or a securities borrowing or securities lending 
transaction, including a transaction in which the FDIC-supervised 
institution acts as agent for a customer and indemnifies the customer 
against loss, provided that:
    (1) The transaction is based solely on liquid and readily 
marketable securities, cash, or gold;
    (2) The transaction is marked-to-fair value daily and subject to 
daily margin maintenance requirements;
    (3)(i) The transaction is a ``securities contract'' or ``repurchase 
agreement'' under section 555 or 559, respectively, of the Bankruptcy 
Code (11 U.S.C. 555 or 559), a qualified financial contract under 
section 11(e)(8) of the Federal Deposit Insurance Act, or a netting 
contract between or among financial institutions under sections 401-407 
of the Federal Deposit Insurance Corporation Improvement Act or the 
Federal Reserve's Regulation EE (12 CFR part 231); or
    (ii) If the transaction does not meet the criteria set forth in 
paragraph (3)(i) of this definition, then either:
    (A) The transaction is executed under an agreement that provides 
the FDIC-supervised institution the right to accelerate, terminate, and 
close-out the transaction on a net basis and to liquidate or set off 
collateral promptly upon an event of default, including upon an event 
of receivership, insolvency, liquidation, or similar proceeding, of the 
counterparty, provided that, in any such case, any exercise of rights 
under the agreement will not be stayed or avoided under applicable law 
in the relevant jurisdictions, other than in receivership, 
conservatorship, resolution under the Federal Deposit Insurance Act, 
Title II of the Dodd-Frank Act, or under any similar insolvency law 
applicable to GSEs; or
    (B) The transaction is:
    (1) Either overnight or unconditionally cancelable at any time by 
the FDIC-supervised institution; and
    (2) Executed under an agreement that provides the FDIC-supervised 
institution the right to accelerate, terminate, and close-out the 
transaction on a net basis and to liquidate or set off collateral 
promptly upon an event of counterparty default; and
    (4) In order to recognize an exposure as a repo-style transaction 
for purposes of this subpart, an FDIC-supervised institution must 
comply with the requirements of Sec.  324.3(e) of this part with 
respect to that exposure.
    Resecuritization means a securitization which has more than one 
underlying exposure and in which one or more of the underlying 
exposures is a securitization exposure.
    Resecuritization exposure means:
    (1) An on- or off-balance sheet exposure to a resecuritization;
    (2) An exposure that directly or indirectly references a 
resecuritization exposure.
    (3) An exposure to an asset-backed commercial paper program is not 
a resecuritization exposure if either:
    (i) The program-wide credit enhancement does not meet the 
definition of a resecuritization exposure; or
    (ii) The entity sponsoring the program fully supports the 
commercial paper through the provision of liquidity so that the 
commercial paper holders effectively are exposed to the default risk of 
the sponsor instead of the underlying exposures.
    Residential mortgage exposure means an exposure (other than a 
securitization exposure, equity exposure, statutory multifamily 
mortgage, or presold construction loan) that is:
    (1) An exposure that is primarily secured by a first or subsequent 
lien on one-to-four family residential property; or
    (2)(i) An exposure with an original and outstanding amount of $1 
million or less that is primarily secured by a first or subsequent lien 
on residential property that is not one-to-four family; and
    (ii) For purposes of calculating capital requirements under subpart 
E of this part, is managed as part of a segment of exposures with 
homogeneous risk characteristics and not on an individual-exposure 
basis.
    Revenue obligation means a bond or similar obligation that is an 
obligation of a PSE, but which the PSE is committed to repay with 
revenues from the specific project financed rather than general tax 
funds.
    Savings and loan holding company means a savings and loan holding 
company as defined in section 10 of the Home Owners' Loan Act (12 
U.S.C. 1467a).
    Securities and Exchange Commission (SEC) means the U.S. Securities 
and Exchange Commission.
    Securities Exchange Act means the Securities Exchange Act of 1934 
(15 U.S.C. 78a et seq.).
    Securitization exposure means:
    (1) An on-balance sheet or off-balance sheet credit exposure 
(including credit-enhancing representations and warranties) that arises 
from a traditional securitization or synthetic securitization 
(including a resecuritization), or
    (2) An exposure that directly or indirectly references a 
securitization exposure described in paragraph (1) of this definition.
    Securitization special purpose entity (securitization SPE) means a 
corporation, trust, or other entity organized for the specific purpose 
of holding underlying exposures of a securitization, the activities of 
which are limited to those appropriate to accomplish this purpose, and 
the structure of which is intended to isolate the underlying exposures 
held by the entity from the credit risk of the seller of the underlying 
exposures to the entity.
    Separate account means a legally segregated pool of assets owned 
and held by an insurance company and maintained separately from the 
insurance company's general account assets for the benefit of an 
individual contract holder. To be a separate account:

[[Page 55483]]

    (1) The account must be legally recognized as a separate account 
under applicable law;
    (2) The assets in the account must be insulated from general 
liabilities of the insurance company under applicable law in the event 
of the insurance company's insolvency;
    (3) The insurance company must invest the funds within the account 
as directed by the contract holder in designated investment 
alternatives or in accordance with specific investment objectives or 
policies; and
    (4) All investment gains and losses, net of contract fees and 
assessments, must be passed through to the contract holder, provided 
that the contract may specify conditions under which there may be a 
minimum guarantee but must not include contract terms that limit the 
maximum investment return available to the policyholder.
    Servicer cash advance facility means a facility under which the 
servicer of the underlying exposures of a securitization may advance 
cash to ensure an uninterrupted flow of payments to investors in the 
securitization, including advances made to cover foreclosure costs or 
other expenses to facilitate the timely collection of the underlying 
exposures.
    Significant investment in the capital of an unconsolidated 
financial institution means an investment in the capital of an 
unconsolidated financial institution where the FDIC-supervised 
institution owns more than 10 percent of the issued and outstanding 
common stock of the unconsolidated financial institution.
    Small Business Act means the Small Business Act (15 U.S.C. 631 et 
seq.).
    Small Business Investment Act means the Small Business Investment 
Act of 1958 (15 U.S.C. 681 et seq.).
    Sovereign means a central government (including the U.S. 
government) or an agency, department, ministry, or central bank of a 
central government.
    Sovereign default means noncompliance by a sovereign with its 
external debt service obligations or the inability or unwillingness of 
a sovereign government to service an existing loan according to its 
original terms, as evidenced by failure to pay principal and interest 
timely and fully, arrearages, or restructuring.
    Sovereign exposure means:
    (1) A direct exposure to a sovereign; or
    (2) An exposure directly and unconditionally backed by the full 
faith and credit of a sovereign.
    Specific wrong-way risk means wrong-way risk that arises when 
either:
    (1) The counterparty and issuer of the collateral supporting the 
transaction; or
    (2) The counterparty and the reference asset of the transaction, 
are affiliates or are the same entity.
    Standardized market risk-weighted assets means the standardized 
measure for market risk calculated under Sec.  324.204 multiplied by 
12.5.
    Standardized total risk-weighted assets means:
    (1) The sum of:
    (i) Total risk-weighted assets for general credit risk as 
calculated under Sec.  324.31;
    (ii) Total risk-weighted assets for cleared transactions and 
default fund contributions as calculated under Sec.  324.35;
    (iii) Total risk-weighted assets for unsettled transactions as 
calculated under Sec.  324.38;
    (iv) Total risk-weighted assets for securitization exposures as 
calculated under Sec.  324.42;
    (v) Total risk-weighted assets for equity exposures as calculated 
under Sec. Sec.  324.52 and 324.53; and
    (vi) For a market risk FDIC-supervised institution only, 
standardized market risk-weighted assets; minus
    (2) Any amount of the FDIC-supervised institution's allowance for 
loan and lease losses that is not included in tier 2 capital and any 
amount of allocated transfer risk reserves.
    State savings association means a State savings association as 
defined in section 3(b)(3) of the Federal Deposit Insurance Act (12 
U.S.C. 1813(b)(3)), the deposits of which are insured by the 
Corporation. It includes a building and loan, savings and loan, or 
homestead association, or a cooperative bank (other than a cooperative 
bank which is a state bank as defined in section 3(a)(2) of the Federal 
Deposit Insurance Act) organized and operating according to the laws of 
the State in which it is chartered or organized, or a corporation 
(other than a bank as defined in section 3(a)(1) of the Federal Deposit 
Insurance Act) that the Board of Directors of the Federal Deposit 
Insurance Corporation determine to be operating substantially in the 
same manner as a state savings association.
    Statutory multifamily mortgage means a loan secured by a 
multifamily residential property that meets the requirements under 
section 618(b)(1) of the Resolution Trust Corporation Refinancing, 
Restructuring, and Improvement Act of 1991, and that meets the 
following criteria: \5\
---------------------------------------------------------------------------

    \5\ The types of loans that qualify as loans secured by 
multifamily residential properties are listed in the instructions 
for preparation of the Call Report.
---------------------------------------------------------------------------

    (1) The loan is made in accordance with prudent underwriting 
standards;
    (2) The principal amount of the loan at origination does not exceed 
80 percent of the value of the property (or 75 percent of the value of 
the property if the loan is based on an interest rate that changes over 
the term of the loan) where the value of the property is the lower of 
the acquisition cost of the property or the appraised (or, if 
appropriate, evaluated) value of the property;
    (3) All principal and interest payments on the loan must have been 
made on a timely basis in accordance with the terms of the loan for at 
least one year prior to applying a 50 percent risk weight to the loan, 
or in the case where an existing owner is refinancing a loan on the 
property, all principal and interest payments on the loan being 
refinanced must have been made on a timely basis in accordance with the 
terms of the loan for at least one year prior to applying a 50 percent 
risk weight to the loan;
    (4) Amortization of principal and interest on the loan must occur 
over a period of not more than 30 years and the minimum original 
maturity for repayment of principal must not be less than 7 years;
    (5) Annual net operating income (before making any payment on the 
loan) generated by the property securing the loan during its most 
recent fiscal year must not be less than 120 percent of the loan's 
current annual debt service (or 115 percent of current annual debt 
service if the loan is based on an interest rate that changes over the 
term of the loan) or, in the case of a cooperative or other not-for-
profit housing project, the property must generate sufficient cash flow 
to provide comparable protection to the FDIC-supervised institution; 
and
    (6) The loan is not more than 90 days past due, or on nonaccrual.
    Subsidiary means, with respect to a company, a company controlled 
by that company.
    Synthetic exposure means an exposure whose value is linked to the 
value of an investment in the FDIC-supervised institution's own capital 
instrument or to the value of an investment in the capital of an 
unconsolidated financial institution.
    Synthetic securitization means a transaction in which:
    (1) All or a portion of the credit risk of one or more underlying 
exposures is retained or transferred to one or more third parties 
through the use of one or more credit derivatives or guarantees (other 
than a guarantee that transfers only the credit risk of an individual 
retail exposure);

[[Page 55484]]

    (2) The credit risk associated with the underlying exposures has 
been separated into at least two tranches reflecting different levels 
of seniority;
    (3) Performance of the securitization exposures depends upon the 
performance of the underlying exposures; and
    (4) All or substantially all of the underlying exposures are 
financial exposures (such as loans, commitments, credit derivatives, 
guarantees, receivables, asset-backed securities, mortgage-backed 
securities, other debt securities, or equity securities).
    Tangible capital means the amount of core capital (Tier 1 capital), 
as defined in accordance with Sec.  324.2, plus the amount of 
outstanding perpetual preferred stock (including related surplus) not 
included in Tier 1 capital.
    Tangible equity means the amount of Tier 1 capital, as calculated 
in accordance with Sec.  324.2, plus the amount of outstanding 
perpetual preferred stock (including related surplus) not included in 
Tier 1 capital.
    Tier 1 capital means the sum of common equity tier 1 capital and 
additional tier 1 capital.
    Tier 1 minority interest means the tier 1 capital of a consolidated 
subsidiary of an FDIC-supervised institution that is not owned by the 
FDIC-supervised institution.
    Tier 2 capital is defined in Sec.  324.20(d).
    Total capital means the sum of tier 1 capital and tier 2 capital.
    Total capital minority interest means the total capital of a 
consolidated subsidiary of an FDIC-supervised institution that is not 
owned by the FDIC-supervised institution.
    Total leverage exposure means the sum of the following:
    (1) The balance sheet carrying value of all of the FDIC-supervised 
institution's on-balance sheet assets, less amounts deducted from tier 
1 capital under Sec.  324.22(a), (c), and (d);
    (2) The potential future credit exposure (PFE) amount for each 
derivative contract to which the FDIC-supervised institution is a 
counterparty (or each single-product netting set of such transactions) 
determined in accordance with Sec.  324.34, but without regard to Sec.  
324.34(b);
    (3) 10 percent of the notional amount of unconditionally 
cancellable commitments made by the FDIC-supervised institution; and
    (4) The notional amount of all other off-balance sheet exposures of 
the FDIC-supervised institution (excluding securities lending, 
securities borrowing, reverse repurchase transactions, derivatives and 
unconditionally cancellable commitments).
    Traditional securitization means a transaction in which:
    (1) All or a portion of the credit risk of one or more underlying 
exposures is transferred to one or more third parties other than 
through the use of credit derivatives or guarantees;
    (2) The credit risk associated with the underlying exposures has 
been separated into at least two tranches reflecting different levels 
of seniority;
    (3) Performance of the securitization exposures depends upon the 
performance of the underlying exposures;
    (4) All or substantially all of the underlying exposures are 
financial exposures (such as loans, commitments, credit derivatives, 
guarantees, receivables, asset-backed securities, mortgage-backed 
securities, other debt securities, or equity securities);
    (5) The underlying exposures are not owned by an operating company;
    (6) The underlying exposures are not owned by a small business 
investment company defined in section 302 of the Small Business 
Investment Act;
    (7) The underlying exposures are not owned by a firm an investment 
in which qualifies as a community development investment under section 
24 (Eleventh) of the National Bank Act;
    (8) The FDIC may determine that a transaction in which the 
underlying exposures are owned by an investment firm that exercises 
substantially unfettered control over the size and composition of its 
assets, liabilities, and off-balance sheet exposures is not a 
traditional securitization based on the transaction's leverage, risk 
profile, or economic substance;
    (9) The FDIC may deem a transaction that meets the definition of a 
traditional securitization, notwithstanding paragraph (5), (6), or (7) 
of this definition, to be a traditional securitization based on the 
transaction's leverage, risk profile, or economic substance; and
    (10) The transaction is not:
    (i) An investment fund;
    (ii) A collective investment fund (as defined in 12 CFR 344.3 
(state nonmember bank), and 12 CFR 390.203 (state savings association);
    (iii) An employee benefit plan (as defined in paragraphs (3) and 
(32) of section 3 of ERISA), a ``governmental plan'' (as defined in 29 
U.S.C. 1002(32)) that complies with the tax deferral qualification 
requirements provided in the Internal Revenue Code, or any similar 
employee benefit plan established under the laws of a foreign 
jurisdiction;
    (iv) A synthetic exposure to the capital of a financial institution 
to the extent deducted from capital under Sec.  324.22; or
    (v) Registered with the SEC under the Investment Company Act or 
foreign equivalents thereof.
    Tranche means all securitization exposures associated with a 
securitization that have the same seniority level.
    Two-way market means a market where there are independent bona fide 
offers to buy and sell so that a price reasonably related to the last 
sales price or current bona fide competitive bid and offer quotations 
can be determined within one day and settled at that price within a 
relatively short time frame conforming to trade custom.
    Unconditionally cancelable means with respect to a commitment, that 
an FDIC-supervised institution may, at any time, with or without cause, 
refuse to extend credit under the commitment (to the extent permitted 
under applicable law).
    Underlying exposures means one or more exposures that have been 
securitized in a securitization transaction.
    Unregulated financial institution means, for purposes of Sec.  
324.131, a financial institution that is not a regulated financial 
institution, including any financial institution that would meet the 
definition of ``financial institution'' under this section but for the 
ownership interest thresholds set forth in paragraph (4)(i) of that 
definition.
    U.S. Government agency means an instrumentality of the U.S. 
Government whose obligations are fully and explicitly guaranteed as to 
the timely payment of principal and interest by the full faith and 
credit of the U.S. Government.
    Value-at-Risk (VaR) means the estimate of the maximum amount that 
the value of one or more exposures could decline due to market price or 
rate movements during a fixed holding period within a stated confidence 
interval.
    Wrong-way risk means the risk that arises when an exposure to a 
particular counterparty is positively correlated with the probability 
of default of such counterparty itself.


Sec.  324.3  Operational requirements for counterparty credit risk.

    For purposes of calculating risk-weighted assets under subparts D 
and E of this part:
    (a) Cleared transaction. In order to recognize certain exposures as 
cleared transactions pursuant to paragraphs

[[Page 55485]]

(1)(ii), (iii), or (iv) of the definition of ``cleared transaction'' in 
Sec.  324.2, the exposures must meet the applicable requirements set 
forth in this paragraph.
    (1) The offsetting transaction must be identified by the CCP as a 
transaction for the clearing member client.
    (2) The collateral supporting the transaction must be held in a 
manner that prevents the FDIC-supervised institution from facing any 
loss due to an event of default, including from a liquidation, 
receivership, insolvency, or similar proceeding of either the clearing 
member or the clearing member's other clients. Omnibus accounts 
established under 17 CFR parts 190 and 300 satisfy the requirements of 
this paragraph (a).
    (3) The FDIC-supervised institution must conduct sufficient legal 
review to conclude with a well-founded basis (and maintain sufficient 
written documentation of that legal review) that in the event of a 
legal challenge (including one resulting from a default or 
receivership, insolvency, liquidation, or similar proceeding) the 
relevant court and administrative authorities would find the 
arrangements of paragraph (a)(2) of this section to be legal, valid, 
binding and enforceable under the law of the relevant jurisdictions.
    (4) The offsetting transaction with a clearing member must be 
transferable under the transaction documents and applicable laws in the 
relevant jurisdiction(s) to another clearing member should the clearing 
member default, become insolvent, or enter receivership, insolvency, 
liquidation, or similar proceedings.
    (b) Eligible margin loan. In order to recognize an exposure as an 
eligible margin loan as defined in Sec.  324.2, an FDIC-supervised 
institution must conduct sufficient legal review to conclude with a 
well-founded basis (and maintain sufficient written documentation of 
that legal review) that the agreement underlying the exposure:
    (1) Meets the requirements of paragraph (1)(iii) of the definition 
of eligible margin loan in Sec.  324.2, and
    (2) Is legal, valid, binding, and enforceable under applicable law 
in the relevant jurisdictions.
    (c) Qualifying cross-product master netting agreement. In order to 
recognize an agreement as a qualifying cross-product master netting 
agreement as defined in Sec.  324.101, an FDIC-supervised institution 
must obtain a written legal opinion verifying the validity and 
enforceability of the agreement under applicable law of the relevant 
jurisdictions if the counterparty fails to perform upon an event of 
default, including upon receivership, insolvency, liquidation, or 
similar proceeding.
    (d) Qualifying master netting agreement. In order to recognize an 
agreement as a qualifying master netting agreement as defined in Sec.  
324.2, an FDIC-supervised institution must:
    (1) Conduct sufficient legal review to conclude with a well-founded 
basis (and maintain sufficient written documentation of that legal 
review) that:
    (i) The agreement meets the requirements of paragraph (2) of the 
definition of qualifying master netting agreement in Sec.  324.2; and
    (ii) In the event of a legal challenge (including one resulting 
from default or from receivership, insolvency, liquidation, or similar 
proceeding) the relevant court and administrative authorities would 
find the agreement to be legal, valid, binding, and enforceable under 
the law of the relevant jurisdictions; and
    (2) Establish and maintain written procedures to monitor possible 
changes in relevant law and to ensure that the agreement continues to 
satisfy the requirements of the definition of qualifying master netting 
agreement in Sec.  324.2.
    (e) Repo-style transaction. In order to recognize an exposure as a 
repo-style transaction as defined in Sec.  324.2, an FDIC-supervised 
institution must conduct sufficient legal review to conclude with a 
well-founded basis (and maintain sufficient written documentation of 
that legal review) that the agreement underlying the exposure:
    (1) Meets the requirements of paragraph (3) of the definition of 
repo-style transaction in Sec.  324.2, and
    (2) Is legal, valid, binding, and enforceable under applicable law 
in the relevant jurisdictions.
    (f) Failure of a QCCP to satisfy the rule's requirements. If an 
FDIC-supervised institution determines that a CCP ceases to be a QCCP 
due to the failure of the CCP to satisfy one or more of the 
requirements set forth in paragraphs (2)(i) through (2)(iii) of the 
definition of a QCCP in Sec.  324.2, the FDIC-supervised institution 
may continue to treat the CCP as a QCCP for up to three months 
following the determination. If the CCP fails to remedy the relevant 
deficiency within three months after the initial determination, or the 
CCP fails to satisfy the requirements set forth in paragraphs (2)(i) 
through (2)(iii) of the definition of a QCCP continuously for a three-
month period after remedying the relevant deficiency, an FDIC-
supervised institution may not treat the CCP as a QCCP for the purposes 
of this part until after the FDIC-supervised institution has determined 
that the CCP has satisfied the requirements in paragraphs (2)(i) 
through (2)(iii) of the definition of a QCCP for three continuous 
months.


Sec.  324.4  Inadequate capital as an unsafe or unsound practice or 
condition.

    (a) General. As a condition of Federal deposit insurance, all 
insured depository institutions must remain in a safe and sound 
condition.
    (b) Unsafe or unsound practice. Any insured depository institution 
which has less than its minimum leverage capital requirement is deemed 
to be engaged in an unsafe or unsound practice pursuant to section 
8(b)(1) and/or 8(c) of the Federal Deposit Insurance Act (12 U.S.C. 
1818(b)(1) and/or 1818(c)). Except that such an insured depository 
institution which has entered into and is in compliance with a written 
agreement with the FDIC or has submitted to the FDIC and is in 
compliance with a plan approved by the FDIC to increase its leverage 
capital ratio to such level as the FDIC deems appropriate and to take 
such other action as may be necessary for the insured depository 
institution to be operated so as not to be engaged in such an unsafe or 
unsound practice will not be deemed to be engaged in an unsafe or 
unsound practice pursuant to section 8(b)(1) and/or 8(c) of the Federal 
Deposit Insurance Act (12 U.S.C. 1818(b)(1) and/or 1818(c)) on account 
of its capital ratios. The FDIC is not precluded from taking action 
under section 8(b)(1), section 8(c) or any other enforcement action 
against an insured depository institution with capital above the 
minimum requirement if the specific circumstances deem such action to 
be appropriate.
    (c) Unsafe or unsound condition. Any insured depository institution 
with a ratio of tier 1 capital to total assets \6\ that is less than 
two percent is deemed to be operating in an unsafe or unsound condition 
pursuant to section 8(a) of the Federal Deposit Insurance Act (12 
U.S.C. 1818(a)).
---------------------------------------------------------------------------

    \6\ For purposes of this paragraph (c), until January 1, 2015, 
the term total assets shall have the same meaning as provided in 12 
CFR 325.2(x). As of January 1, 2015, the term total assets shall 
have the same meaning as provided in 12 CFR 324.401(g).
---------------------------------------------------------------------------

    (1) An insured depository institution with a ratio of tier 1 
capital to total assets of less than two percent which has entered into 
and is in compliance with a written agreement with the FDIC (or any 
other insured depository institution with a ratio of tier 1 capital to 
total assets of less than two percent which has entered into and is in 
compliance with a written agreement with its primary Federal regulator 
and

[[Page 55486]]

to which agreement the FDIC is a party) to increase its tier 1 leverage 
capital ratio to such level as the FDIC deems appropriate and to take 
such other action as may be necessary for the insured depository 
institution to be operated in a safe and sound manner, will not be 
subject to a proceeding by the FDIC pursuant to 12 U.S.C. 1818(a) on 
account of its capital ratios.
    (2) An insured depository institution with a ratio of tier 1 
capital to total assets that is equal to or greater than two percent 
may be operating in an unsafe or unsound condition. The FDIC is not 
precluded from bringing an action pursuant to 12 U.S.C. 1818(a) where 
an insured depository institution has a ratio of tier 1 capital to 
total assets that is equal to or greater than two percent.


Sec.  324.5  Issuance of directives.

    (a) General. A directive is a final order issued to an FDIC-
supervised institution that fails to maintain capital at or above the 
minimum leverage capital requirement as set forth in Sec. Sec.  324.4 
and 324.10. A directive issued pursuant to this section, including a 
plan submitted under a directive, is enforceable in the same manner and 
to the same extent as a final cease-and-desist order issued under 
section 8(b) of the Federal Deposit Insurance Act (12 U.S.C. 1818(b)).
    (b) Issuance of directives. If an FDIC-supervised institution is 
operating with less than the minimum leverage capital requirement 
established by this regulation, the FDIC Board of Directors, or its 
designee(s), may issue and serve upon any FDIC-supervised institution a 
directive requiring the FDIC-supervised institution to restore its 
capital to the minimum leverage capital requirement within a specified 
time period. The directive may require the FDIC-supervised institution 
to submit to the appropriate FDIC regional director, or other specified 
official, for review and approval, a plan describing the means and 
timing by which the FDIC-supervised institution shall achieve the 
minimum leverage capital requirement. After the FDIC has approved the 
plan, the FDIC-supervised institution may be required under the terms 
of the directive to adhere to and monitor compliance with the plan. The 
directive may be issued during the course of an examination of the 
FDIC-supervised institution, or at any other time that the FDIC deems 
appropriate, if the FDIC-supervised institution is found to be 
operating with less than the minimum leverage capital requirement.
    (c) Notice and opportunity to respond to issuance of a directive. 
(1) If the FDIC makes an initial determination that a directive should 
be issued to an FDIC-supervised institution pursuant to paragraph (b) 
of this section, the FDIC, through the appropriate designated 
official(s), shall serve written notification upon the FDIC-supervised 
institution of its intent to issue a directive. The notice shall 
include the current leverage capital ratio, the basis upon which said 
ratio was calculated, the proposed capital injection, the proposed date 
for achieving the minimum leverage capital requirement and any other 
relevant information concerning the decision to issue a directive. When 
deemed appropriate, specific requirements of a proposed plan for 
meeting the minimum leverage capital requirement may be included in the 
notice.
    (2) Within 14 days of receipt of notification, the FDIC-supervised 
institution may file with the appropriate designated FDIC official(s) a 
written response, explaining why the directive should not be issued, 
seeking modification of its terms, or other appropriate relief. The 
FDIC-supervised institution's response shall include any information, 
mitigating circumstances, documentation, or other relevant evidence 
which supports its position, and may include a plan for attaining the 
minimum leverage capital requirement.
    (3)(i) After considering the FDIC-supervised institution's 
response, the appropriate designated FDIC official(s) shall serve upon 
the FDIC-supervised institution a written determination addressing the 
FDIC-supervised institution's response and setting forth the FDIC's 
findings and conclusions in support of any decision to issue or not to 
issue a directive. The directive may be issued as originally proposed 
or in modified form. The directive may order the FDIC-supervised 
institution to:
    (A) Achieve the minimum leverage capital requirement established by 
this regulation by a certain date;
    (B) Submit for approval and adhere to a plan for achieving the 
minimum leverage capital requirement;
    (C) Take other action as is necessary to achieve the minimum 
leverage capital requirement; or
    (D) A combination of the above actions.
    (ii) If a directive is to be issued, it may be served upon the 
FDIC-supervised institution along with the final determination.
    (4) Any FDIC-supervised institution, upon a change in 
circumstances, may request the FDIC to reconsider the terms of a 
directive and may propose changes in the plan under which it is 
operating to meet the minimum leverage capital requirement. The 
directive and plan continue in effect while such request is pending 
before the FDIC.
    (5) All papers filed with the FDIC must be postmarked or received 
by the appropriate designated FDIC official(s) within the prescribed 
time limit for filing.
    (6) Failure by the FDIC-supervised institution to file a written 
response to notification of intent to issue a directive within the 
specified time period shall constitute consent to the issuance of such 
directive.
    (d) Enforcement of a directive. (1) Whenever an FDIC-supervised 
institution fails to follow the directive or to submit or adhere to its 
capital adequacy plan, the FDIC may seek enforcement of the directive 
in the appropriate United States district court, pursuant to 12 U.S.C. 
3907(b)(2)(B)(ii), in the same manner and to the same extent as if the 
directive were a final cease-and-desist order. In addition to 
enforcement of the directive, the FDIC may seek assessment of civil 
money penalties for violation of the directive against any FDIC-
supervised institution, any officer, director, employee, agent, or 
other person participating in the conduct of the affairs of the FDIC-
supervised institution, pursuant to 12 U.S.C. 3909(d).
    (2) The directive may be issued separately, in conjunction with, or 
in addition to, any other enforcement mechanisms available to the FDIC, 
including cease-and-desist orders, orders of correction, the approval 
or denial of applications, or any other actions authorized by law. In 
addition to addressing an FDIC-supervised institution's minimum 
leverage capital requirement, the capital directive may also address 
minimum risk-based capital requirements that are to be maintained and 
calculated in accordance with Sec.  324.10, and, for state savings 
associations, the minimum tangible capital requirements set for in 
Sec.  324.10.


Sec. Sec.  324.6 through 324.9  [Reserved]

Subpart B--Capital Ratio Requirements and Buffers


Sec.  324.10  Minimum capital requirements.

    (a) Minimum capital requirements. An FDIC-supervised institution 
must maintain the following minimum capital ratios:
    (1) A common equity tier 1 capital ratio of 4.5 percent.
    (2) A tier 1 capital ratio of 6 percent.
    (3) A total capital ratio of 8 percent.
    (4) A leverage ratio of 4 percent.
    (5) For advanced approaches FDIC-supervised institutions, a

[[Page 55487]]

supplementary leverage ratio of 3 percent.
    (6) For state savings associations, a tangible capital ratio of 1.5 
percent.
    (b) Standardized capital ratio calculations. Other than as provided 
in paragraph (c) of this section:
    (1) Common equity tier 1 capital ratio. An FDIC-supervised 
institution's common equity tier 1 capital ratio is the ratio of the 
FDIC-supervised institution's common equity tier 1 capital to 
standardized total risk-weighted assets;
    (2) Tier 1 capital ratio. An FDIC-supervised institution's tier 1 
capital ratio is the ratio of the FDIC-supervised institution's tier 1 
capital to standardized total risk-weighted assets;
    (3) Total capital ratio. An FDIC-supervised institution's total 
capital ratio is the ratio of the FDIC-supervised institution's total 
capital to standardized total risk-weighted assets; and
    (4) Leverage ratio. An FDIC-supervised institution's leverage ratio 
is the ratio of the FDIC-supervised institution's tier 1 capital to the 
FDIC-supervised institution's average total consolidated assets as 
reported on the FDIC-supervised institution's Call Report minus amounts 
deducted from tier 1 capital under Sec. Sec.  324.22(a), (c), and (d).
    (5) State savings association tangible capital ratio. (i) Until 
January 1, 2015, a state savings association shall determine its 
tangible capital ratio in accordance with 12 CFR 390.468.
    (ii) As of January 1, 2015, a state savings association's tangible 
capital ratio is the ratio of the state savings association's core 
capital (tier 1 capital) to total assets. For purposes of this 
paragraph, the term total assets shall have the meaning provided in 
Sec.  324.401(g).
    (c) Advanced approaches capital ratio calculations. An advanced 
approaches FDIC-supervised institution that has completed the parallel 
run process and received notification from the FDIC pursuant to Sec.  
324.121(d) must determine its regulatory capital ratios as described in 
this paragraph (c).
    (1) Common equity tier 1 capital ratio. The FDIC-supervised 
institution's common equity tier 1 capital ratio is the lower of:
    (i) The ratio of the FDIC-supervised institution's common equity 
tier 1 capital to standardized total risk-weighted assets; and
    (ii) The ratio of the FDIC-supervised institution's common equity 
tier 1 capital to advanced approaches total risk-weighted assets.
    (2) Tier 1 capital ratio. The FDIC-supervised institution's tier 1 
capital ratio is the lower of:
    (i) The ratio of the FDIC-supervised institution's tier 1 capital 
to standardized total risk-weighted assets; and
    (ii) The ratio of the FDIC-supervised institution's tier 1 capital 
to advanced approaches total risk-weighted assets.
    (3) Total capital ratio. The FDIC-supervised institution's total 
capital ratio is the lower of:
    (i) The ratio of the FDIC-supervised institution's total capital to 
standardized total risk-weighted assets; and
    (ii) The ratio of the FDIC-supervised institution's advanced-
approaches-adjusted total capital to advanced approaches total risk-
weighted assets. An FDIC-supervised institution's advanced-approaches-
adjusted total capital is the FDIC-supervised institution's total 
capital after being adjusted as follows:
    (A) An advanced approaches FDIC-supervised institution must deduct 
from its total capital any allowance for loan and lease losses included 
in its tier 2 capital in accordance with Sec.  324.20(d)(3); and
    (B) An advanced approaches FDIC-supervised institution must add to 
its total capital any eligible credit reserves that exceed the FDIC-
supervised institution's total expected credit losses to the extent 
that the excess reserve amount does not exceed 0.6 percent of the FDIC-
supervised institution's credit risk-weighted assets.
    (4) Supplementary leverage ratio. An advanced approaches FDIC-
supervised institution's supplementary leverage ratio is the simple 
arithmetic mean of the ratio of its tier 1 capital to total leverage 
exposure calculated as of the last day of each month in the reporting 
quarter.
    (5) State savings association tangible capital ratio. (i) Until 
January 1, 2014, a state savings association shall determine its 
tangible capital ratio in accordance with 12 CFR 390.468.
    (ii) As of January 1, 2014, a state savings association's tangible 
capital ratio is the ratio of the state savings association's core 
capital (tier 1 capital) to total assets. For purposes of this 
paragraph, the term total assets shall have the meaning provided in 12 
CFR 324.401(g).
    (d) Capital adequacy. (1) Notwithstanding the minimum requirements 
in this part, An FDIC-supervised institution must maintain capital 
commensurate with the level and nature of all risks to which the FDIC-
supervised institution is exposed.
    (2) An FDIC-supervised institution must have a process for 
assessing its overall capital adequacy in relation to its risk profile 
and a comprehensive strategy for maintaining an appropriate level of 
capital.
    (3) Insured depository institutions with less than the minimum 
leverage capital requirement. (i) An insured depository institution 
making an application to the FDIC operating with less than the minimum 
leverage capital requirement does not have adequate capital and 
therefore has inadequate financial resources.
    (ii) Any insured depository institution operating with an 
inadequate capital structure, and therefore inadequate financial 
resources, will not receive approval for an application requiring the 
FDIC to consider the adequacy of its capital structure or its financial 
resources.
    (iii) In any merger, acquisition, or other type of business 
combination where the FDIC must give its approval, where it is required 
to consider the adequacy of the financial resources of the existing and 
proposed institutions, and where the resulting entity is either insured 
by the FDIC or not otherwise federally insured, approval will not be 
granted when the resulting entity does not meet the minimum leverage 
capital requirement.
    (iv) Exceptions. Notwithstanding the provisions of paragraphs 
(d)(3)(i), (ii) and (iii) of this section:
    (A) The FDIC, in its discretion, may approve an application 
pursuant to the Federal Deposit Insurance Act where it is required to 
consider the adequacy of capital if it finds that such approval must be 
taken to prevent the closing of a depository institution or to 
facilitate the acquisition of a closed depository institution, or, when 
severe financial conditions exist which threaten the stability of an 
insured depository institution or of a significant number of depository 
institutions insured by the FDIC or of insured depository institutions 
possessing significant financial resources, if such action is taken to 
lessen the risk to the FDIC posed by an insured depository institution 
under such threat of instability.
    (B) The FDIC, in its discretion, may approve an application 
pursuant to the Federal Deposit Insurance Act where it is required to 
consider the adequacy of capital or the financial resources of the 
insured depository institution where it finds that the applicant has 
committed to and is in compliance with a reasonable plan to meet its 
minimum leverage capital requirements within a reasonable period of 
time.

[[Page 55488]]

Sec.  324.11  Capital conservation buffer and countercyclical capital 
buffer amount.

    (a) Capital conservation buffer. (1) Composition of the capital 
conservation buffer. The capital conservation buffer is composed solely 
of common equity tier 1 capital.
    (2) Definitions. For purposes of this section, the following 
definitions apply:
    (i) Eligible retained income. The eligible retained income of an 
FDIC-supervised institution is the FDIC-supervised institution's net 
income for the four calendar quarters preceding the current calendar 
quarter, based on the FDIC-supervised institution's quarterly Call 
Reports, net of any distributions and associated tax effects not 
already reflected in net income.
    (ii) Maximum payout ratio. The maximum payout ratio is the 
percentage of eligible retained income that an FDIC-supervised 
institution can pay out in the form of distributions and discretionary 
bonus payments during the current calendar quarter. The maximum payout 
ratio is based on the FDIC-supervised institution's capital 
conservation buffer, calculated as of the last day of the previous 
calendar quarter, as set forth in Table 1 to Sec.  324.11.
    (iii) Maximum payout amount. An FDIC-supervised institution's 
maximum payout amount for the current calendar quarter is equal to the 
FDIC-supervised institution's eligible retained income, multiplied by 
the applicable maximum payout ratio, as set forth in Table 1 to Sec.  
324.11.
    (iv) Private sector credit exposure. Private sector credit exposure 
means an exposure to a company or an individual that is not an exposure 
to a sovereign, the Bank for International Settlements, the European 
Central Bank, the European Commission, the International Monetary Fund, 
an MDB, a PSE, or a GSE.
    (3) Calculation of capital conservation buffer. (i) An FDIC-
supervised institution's capital conservation buffer is equal to the 
lowest of the following ratios, calculated as of the last day of the 
previous calendar quarter based on the FDIC-supervised institution's 
most recent Call Report:
    (A) The FDIC-supervised institution's common equity tier 1 capital 
ratio minus the FDIC-supervised institution's minimum common equity 
tier 1 capital ratio requirement under Sec.  324.10;
    (B) The FDIC-supervised institution's tier 1 capital ratio minus 
the FDIC-supervised institution's minimum tier 1 capital ratio 
requirement under Sec.  324.10; and
    (C) The FDIC-supervised institution's total capital ratio minus the 
FDIC-supervised institution's minimum total capital ratio requirement 
under Sec.  324.10; or
    (ii) Notwithstanding paragraphs (a)(3)(i)(A)-(C) of this section, 
if the FDIC-supervised institution's common equity tier 1, tier 1 or 
total capital ratio is less than or equal to the FDIC-supervised 
institution's minimum common equity tier 1, tier 1 or total capital 
ratio requirement under Sec.  324.10, respectively, the FDIC-supervised 
institution's capital conservation buffer is zero.
    (4) Limits on distributions and discretionary bonus payments. (i) 
An FDIC-supervised institution shall not make distributions or 
discretionary bonus payments or create an obligation to make such 
distributions or payments during the current calendar quarter that, in 
the aggregate, exceed the maximum payout amount.
    (ii) An FDIC-supervised institution with a capital conservation 
buffer that is greater than 2.5 percent plus 100 percent of its 
applicable countercyclical capital buffer, in accordance with paragraph 
(b) of this section, is not subject to a maximum payout amount under 
this section.
    (iii) Negative eligible retained income. Except as provided in 
paragraph (a)(4)(iv) of this section, an FDIC-supervised institution 
may not make distributions or discretionary bonus payments during the 
current calendar quarter if the FDIC-supervised institution's:
    (A) Eligible retained income is negative; and
    (B) Capital conservation buffer was less than 2.5 percent as of the 
end of the previous calendar quarter.
    (iv) Prior approval. Notwithstanding the limitations in paragraphs 
(a)(4)(i) through (iii) of this section, the FDIC may permit an FDIC-
supervised institution to make a distribution or discretionary bonus 
payment upon a request of the FDIC-supervised institution, if the FDIC 
determines that the distribution or discretionary bonus payment would 
not be contrary to the purposes of this section, or to the safety and 
soundness of the FDIC-supervised institution. In making such a 
determination, the FDIC will consider the nature and extent of the 
request and the particular circumstances giving rise to the request.

     Table 1 to Sec.   324.11--Calculation of Maximum Payout Amount
------------------------------------------------------------------------
                                              Maximum payout ratio (as a
        Capital conservation buffer             percentage of eligible
                                                  retained  income)
------------------------------------------------------------------------
Greater than 2.5 percent plus 100 percent    No payout ratio limitation
 of the FDIC-supervised institution's         applies.
 applicable countercyclical capital buffer
 amount.
Less than or equal to 2.5 percent plus 100   60 percent.
 percent of the FDIC-supervised
 institution's applicable countercyclical
 capital buffer amount, and greater than
 1.875 percent plus 75 percent of the FDIC-
 supervised institution's applicable
 countercyclical capital buffer amount.
Less than or equal to 1.875 percent plus 75  40 percent.
 percent of the FDIC-supervised
 institution's applicable countercyclical
 capital buffer amount, and greater than
 1.25 percent plus 50 percent of the FDIC-
 supervised institution's applicable
 countercyclical capital buffer amount.
Less than or equal to 1.25 percent plus 50   20 percent.
 percent of the FDIC-supervised
 institution's applicable countercyclical
 capital buffer amount, and greater than
 0.625 percent plus 25 percent of the FDIC-
 supervised institution's applicable
 countercyclical capital buffer amount.
Less than or equal to 0.625 percent plus 25  0 percent.
 percent of the FDIC-supervised
 institution's applicable countercyclical
 capital buffer amount.
------------------------------------------------------------------------

    (v) Other limitations on distributions. Additional limitations on 
distributions may apply to an FDIC-supervised institution under 12 CFR 
303.241 and subpart H of this part.
    (b) Countercyclical capital buffer amount--(1) General. An advanced 
approaches FDIC-supervised institution must calculate a countercyclical 
capital buffer amount in accordance with the following paragraphs for 
purposes of determining its maximum payout ratio under Table 1 to Sec.  
324.11.
    (i) Extension of capital conservation buffer. The countercyclical 
capital

[[Page 55489]]

buffer amount is an extension of the capital conservation buffer as 
described in paragraph (a) of this section.
    (ii) Amount. An advanced approaches FDIC-supervised institution has 
a countercyclical capital buffer amount determined by calculating the 
weighted average of the countercyclical capital buffer amounts 
established for the national jurisdictions where the FDIC-supervised 
institution's private sector credit exposures are located, as specified 
in paragraphs (b)(2) and (3) of this section.
    (iii) Weighting. The weight assigned to a jurisdiction's 
countercyclical capital buffer amount is calculated by dividing the 
total risk-weighted assets for the FDIC-supervised institution's 
private sector credit exposures located in the jurisdiction by the 
total risk-weighted assets for all of the FDIC-supervised institution's 
private sector credit exposures. The methodology an FDIC-supervised 
institution uses for determining risk-weighted assets for purposes of 
this paragraph (b) must be the methodology that determines its risk-
based capital ratios under Sec.  324.10. Notwithstanding the previous 
sentence, the risk-weighted asset amount for a private sector credit 
exposure that is a covered position under subpart F of this part is its 
specific risk add-on as determined under Sec.  324.210 multiplied by 
12.5.
    (iv) Location. (A) Except as provided in paragraphs (b)(1)(iv)(B) 
and (b)(1)(iv)(C) of this section, the location of a private sector 
credit exposure is the national jurisdiction where the borrower is 
located (that is, where it is incorporated, chartered, or similarly 
established or, if the borrower is an individual, where the borrower 
resides).
    (B) If, in accordance with subparts D or E of this part, the FDIC-
supervised institution has assigned to a private sector credit exposure 
a risk weight associated with a protection provider on a guarantee or 
credit derivative, the location of the exposure is the national 
jurisdiction where the protection provider is located.
    (C) The location of a securitization exposure is the location of 
the underlying exposures, or, if the underlying exposures are located 
in more than one national jurisdiction, the national jurisdiction where 
the underlying exposures with the largest aggregate unpaid principal 
balance are located. For purposes of this paragraph, the location of an 
underlying exposure shall be the location of the borrower, determined 
consistent with paragraph (b)(1)(iv)(A) of this section.
    (2) Countercyclical capital buffer amount for credit exposures in 
the United States--(i) Initial countercyclical capital buffer amount 
with respect to credit exposures in the United States. The initial 
countercyclical capital buffer amount in the United States is zero.
    (ii) Adjustment of the countercyclical capital buffer amount. The 
FDIC will adjust the countercyclical capital buffer amount for credit 
exposures in the United States in accordance with applicable law.\7\
---------------------------------------------------------------------------

    \7\ The FDIC expects that any adjustment will be based on a 
determination made jointly by the Board, OCC, and FDIC.
---------------------------------------------------------------------------

    (iii) Range of countercyclical capital buffer amount. The FDIC will 
adjust the countercyclical capital buffer amount for credit exposures 
in the United States between zero percent and 2.5 percent of risk-
weighted assets.
    (iv) Adjustment determination. The FDIC will base its decision to 
adjust the countercyclical capital buffer amount under this section on 
a range of macroeconomic, financial, and supervisory information 
indicating an increase in systemic risk including, but not limited to, 
the ratio of credit to gross domestic product, a variety of asset 
prices, other factors indicative of relative credit and liquidity 
expansion or contraction, funding spreads, credit condition surveys, 
indices based on credit default swap spreads, options implied 
volatility, and measures of systemic risk.
    (v) Effective date of adjusted countercyclical capital buffer 
amount--(A) Increase adjustment. A determination by the FDIC under 
paragraph (b)(2)(ii) of this section to increase the countercyclical 
capital buffer amount will be effective 12 months from the date of 
announcement, unless the FDIC establishes an earlier effective date and 
includes a statement articulating the reasons for the earlier effective 
date.
    (B) Decrease adjustment. A determination by the FDIC to decrease 
the established countercyclical capital buffer amount under paragraph 
(b)(2)(ii) of this section will be effective on the day following 
announcement of the final determination or the earliest date 
permissible under applicable law or regulation, whichever is later.
    (vi) Twelve month sunset. The countercyclical capital buffer amount 
will return to zero percent 12 months after the effective date that the 
adjusted countercyclical capital buffer amount is announced, unless the 
FDIC announces a decision to maintain the adjusted countercyclical 
capital buffer amount or adjust it again before the expiration of the 
12-month period.
    (3) Countercyclical capital buffer amount for foreign 
jurisdictions. The FDIC will adjust the countercyclical capital buffer 
amount for private sector credit exposures to reflect decisions made by 
foreign jurisdictions consistent with due process requirements 
described in paragraph (b)(2) of this section.


Sec. Sec.  324.12 through 324.19  [Reserved]

Subpart C--Definition of Capital


Sec.  324.20  Capital components and eligibility criteria for 
regulatory capital instruments.

    (a) Regulatory capital components. An FDIC-supervised institution's 
regulatory capital components are:
    (1) Common equity tier 1 capital;
    (2) Additional tier 1 capital; and
    (3) Tier 2 capital.
    (b) Common equity tier 1 capital. Common equity tier 1 capital is 
the sum of the common equity tier 1 capital elements in this paragraph 
(b), minus regulatory adjustments and deductions in Sec.  324.22. The 
common equity tier 1 capital elements are:
    (1) Any common stock instruments (plus any related surplus) issued 
by the FDIC-supervised institution, net of treasury stock, and any 
capital instruments issued by mutual banking organizations, that meet 
all the following criteria:
    (i) The instrument is paid-in, issued directly by the FDIC-
supervised institution, and represents the most subordinated claim in a 
receivership, insolvency, liquidation, or similar proceeding of the 
FDIC-supervised institution;
    (ii) The holder of the instrument is entitled to a claim on the 
residual assets of the FDIC-supervised institution that is proportional 
with the holder's share of the FDIC-supervised institution's issued 
capital after all senior claims have been satisfied in a receivership, 
insolvency, liquidation, or similar proceeding;
    (iii) The instrument has no maturity date, can only be redeemed via 
discretionary repurchases with the prior approval of the FDIC, and does 
not contain any term or feature that creates an incentive to redeem;
    (iv) The FDIC-supervised institution did not create at issuance of 
the instrument through any action or communication an expectation that 
it will buy back, cancel, or redeem the instrument, and the instrument 
does not include any term or feature that might give rise to such an 
expectation;
    (v) Any cash dividend payments on the instrument are paid out of 
the FDIC-supervised institution's net income and retained earnings and 
are not subject to

[[Page 55490]]

a limit imposed by the contractual terms governing the instrument. An 
FDIC-supervised institution must obtain prior FDIC approval for any 
dividend payment involving a reduction or retirement of capital stock 
in accordance with 12 CFR 303.241;
    (vi) The FDIC-supervised institution has full discretion at all 
times to refrain from paying any dividends and making any other 
distributions on the instrument without triggering an event of default, 
a requirement to make a payment-in-kind, or an imposition of any other 
restrictions on the FDIC-supervised institution;
    (vii) Dividend payments and any other distributions on the 
instrument may be paid only after all legal and contractual obligations 
of the FDIC-supervised institution have been satisfied, including 
payments due on more senior claims;
    (viii) The holders of the instrument bear losses as they occur 
equally, proportionately, and simultaneously with the holders of all 
other common stock instruments before any losses are borne by holders 
of claims on the FDIC-supervised institution with greater priority in a 
receivership, insolvency, liquidation, or similar proceeding;
    (ix) The paid-in amount is classified as equity under GAAP;
    (x) The FDIC-supervised institution, or an entity that the FDIC-
supervised institution controls, did not purchase or directly or 
indirectly fund the purchase of the instrument;
    (xi) The instrument is not secured, not covered by a guarantee of 
the FDIC-supervised institution or of an affiliate of the FDIC-
supervised institution, and is not subject to any other arrangement 
that legally or economically enhances the seniority of the instrument;
    (xii) The instrument has been issued in accordance with applicable 
laws and regulations; and
    (xiii) The instrument is reported on the FDIC-supervised 
institution's regulatory financial statements separately from other 
capital instruments.
    (2) Retained earnings.
    (3) Accumulated other comprehensive income (AOCI) as reported under 
GAAP.\8\
---------------------------------------------------------------------------

    \8\ See Sec.  324.22 for specific adjustments related to AOCI.
---------------------------------------------------------------------------

    (4) Any common equity tier 1 minority interest, subject to the 
limitations in Sec.  324.21(c).
    (5) Notwithstanding the criteria for common stock instruments 
referenced above, an FDIC-supervised institution's common stock issued 
and held in trust for the benefit of its employees as part of an 
employee stock ownership plan does not violate any of the criteria in 
paragraph (b)(1)(iii), paragraph (b)(1)(iv) or paragraph (b)(1)(xi) of 
this section, provided that any repurchase of the stock is required 
solely by virtue of ERISA for an instrument of an FDIC-supervised 
institution that is not publicly-traded. In addition, an instrument 
issued by an FDIC-supervised institution to its employee stock 
ownership plan does not violate the criterion in paragraph (b)(1)(x) of 
this section.
    (c) Additional tier 1 capital. Additional tier 1 capital is the sum 
of additional tier 1 capital elements and any related surplus, minus 
the regulatory adjustments and deductions in Sec.  324.22. Additional 
tier 1 capital elements are:
    (1) Instruments (plus any related surplus) that meet the following 
criteria:
    (i) The instrument is issued and paid-in;
    (ii) The instrument is subordinated to depositors, general 
creditors, and subordinated debt holders of the FDIC-supervised 
institution in a receivership, insolvency, liquidation, or similar 
proceeding;
    (iii) The instrument is not secured, not covered by a guarantee of 
the FDIC-supervised institution or of an affiliate of the FDIC-
supervised institution, and not subject to any other arrangement that 
legally or economically enhances the seniority of the instrument;
    (iv) The instrument has no maturity date and does not contain a 
dividend step-up or any other term or feature that creates an incentive 
to redeem; and
    (v) If callable by its terms, the instrument may be called by the 
FDIC-supervised institution only after a minimum of five years 
following issuance, except that the terms of the instrument may allow 
it to be called earlier than five years upon the occurrence of a 
regulatory event that precludes the instrument from being included in 
additional tier 1 capital, a tax event, or if the issuing entity is 
required to register as an investment company pursuant to the 
Investment Company Act. In addition:
    (A) The FDIC-supervised institution must receive prior approval 
from the FDIC to exercise a call option on the instrument.
    (B) The FDIC-supervised institution does not create at issuance of 
the instrument, through any action or communication, an expectation 
that the call option will be exercised.
    (C) Prior to exercising the call option, or immediately thereafter, 
the FDIC-supervised institution must either: Replace the instrument to 
be called with an equal amount of instruments that meet the criteria 
under paragraph (b) of this section or this paragraph (c); \9\ or 
demonstrate to the satisfaction of the FDIC that following redemption, 
the FDIC-supervised institution will continue to hold capital 
commensurate with its risk.
---------------------------------------------------------------------------

    \9\ Replacement can be concurrent with redemption of existing 
additional tier 1 capital instruments.
---------------------------------------------------------------------------

    (vi) Redemption or repurchase of the instrument requires prior 
approval from the FDIC.
    (vii) The FDIC-supervised institution has full discretion at all 
times to cancel dividends or other distributions on the instrument 
without triggering an event of default, a requirement to make a 
payment-in-kind, or an imposition of other restrictions on the FDIC-
supervised institution except in relation to any distributions to 
holders of common stock or instruments that are pari passu with the 
instrument.
    (viii) Any cash dividend payments on the instrument are paid out of 
the FDIC-supervised institution's net income and retained earnings and 
are not subject to a limit imposed by the contractual terms governing 
the instrument. An FDIC-supervised institution must obtain prior FDIC 
approval for any dividend payment involving a reduction or retirement 
of capital stock in accordance with 12 CFR 303.241.
    (ix) The instrument does not have a credit-sensitive feature, such 
as a dividend rate that is reset periodically based in whole or in part 
on the FDIC-supervised institution's credit quality, but may have a 
dividend rate that is adjusted periodically independent of the FDIC-
supervised institution's credit quality, in relation to general market 
interest rates or similar adjustments.
    (x) The paid-in amount is classified as equity under GAAP.
    (xi) The FDIC-supervised institution, or an entity that the FDIC-
supervised institution controls, did not purchase or directly or 
indirectly fund the purchase of the instrument.
    (xii) The instrument does not have any features that would limit or 
discourage additional issuance of capital by the FDIC-supervised 
institution, such as provisions that require the FDIC-supervised 
institution to compensate holders of the instrument if a new instrument 
is issued at a lower price during a specified time frame.
    (xiii) If the instrument is not issued directly by the FDIC-
supervised institution or by a subsidiary of the FDIC-supervised 
institution that is an operating entity, the only asset of the issuing 
entity is its investment in the

[[Page 55491]]

capital of the FDIC-supervised institution, and proceeds must be 
immediately available without limitation to the FDIC-supervised 
institution or to the FDIC-supervised institution's top-tier holding 
company in a form which meets or exceeds all of the other criteria for 
additional tier 1 capital instruments.\10\
---------------------------------------------------------------------------

    \10\ See 77 FR 52856 (August 30, 2012).
---------------------------------------------------------------------------

    (xiv) For an advanced approaches FDIC-supervised institution, the 
governing agreement, offering circular, or prospectus of an instrument 
issued after the date upon which the FDIC-supervised institution 
becomes subject to this part as set forth in Sec.  324.1(f) must 
disclose that the holders of the instrument may be fully subordinated 
to interests held by the U.S. government in the event that the FDIC-
supervised institution enters into a receivership, insolvency, 
liquidation, or similar proceeding.
    (2) Tier 1 minority interest, subject to the limitations in Sec.  
324.21(d), that is not included in the FDIC-supervised institution's 
common equity tier 1 capital.
    (3) Any and all instruments that qualified as tier 1 capital under 
the FDIC's general risk-based capital rules under 12 CFR part 325, 
appendix A (state nonmember banks) and 12 CFR part 390, subpart Z 
(state savings associations) as then in effect, that were issued under 
the Small Business Jobs Act of 2010 \11\ or prior to October 4, 2010, 
under the Emergency Economic Stabilization Act of 2008.\12\
---------------------------------------------------------------------------

    \11\ Public Law 111-240; 124 Stat. 2504 (2010).
    \12\ Public Law 110-343, 122 Stat. 3765 (2008).
---------------------------------------------------------------------------

    (4) Notwithstanding the criteria for additional tier 1 capital 
instruments referenced above:
    (i) An instrument issued by an FDIC-supervised institution and held 
in trust for the benefit of its employees as part of an employee stock 
ownership plan does not violate any of the criteria in paragraph 
(c)(1)(iii) of this section, provided that any repurchase is required 
solely by virtue of ERISA for an instrument of an FDIC-supervised 
institution that is not publicly-traded. In addition, an instrument 
issued by an FDIC-supervised institution to its employee stock 
ownership plan does not violate the criteria in paragraph (c)(1)(v) or 
paragraph (c)(1)(xi) of this section; and
    (ii) An instrument with terms that provide that the instrument may 
be called earlier than five years upon the occurrence of a rating 
agency event does not violate the criterion in paragraph (c)(1)(v) of 
this section provided that the instrument was issued and included in an 
FDIC-supervised institution's tier 1 capital prior to the January 1, 
2014, and that such instrument satisfies all other criteria under this 
paragraph (c).
    (d) Tier 2 Capital. Tier 2 capital is the sum of tier 2 capital 
elements and any related surplus, minus regulatory adjustments and 
deductions in Sec.  324.22. Tier 2 capital elements are:
    (1) Instruments (plus related surplus) that meet the following 
criteria:
    (i) The instrument is issued and paid-in;
    (ii) The instrument is subordinated to depositors and general 
creditors of the FDIC-supervised institution;
    (iii) The instrument is not secured, not covered by a guarantee of 
the FDIC-supervised institution or of an affiliate of the FDIC-
supervised institution, and not subject to any other arrangement that 
legally or economically enhances the seniority of the instrument in 
relation to more senior claims;
    (iv) The instrument has a minimum original maturity of at least 
five years. At the beginning of each of the last five years of the life 
of the instrument, the amount that is eligible to be included in tier 2 
capital is reduced by 20 percent of the original amount of the 
instrument (net of redemptions) and is excluded from regulatory capital 
when the remaining maturity is less than one year. In addition, the 
instrument must not have any terms or features that require, or create 
significant incentives for, the FDIC-supervised institution to redeem 
the instrument prior to maturity; \13\ and
---------------------------------------------------------------------------

    \13\ An instrument that by its terms automatically converts into 
a tier 1 capital instrument prior to five years after issuance 
complies with the five-year maturity requirement of this criterion.
---------------------------------------------------------------------------

    (v) The instrument, by its terms, may be called by the FDIC-
supervised institution only after a minimum of five years following 
issuance, except that the terms of the instrument may allow it to be 
called sooner upon the occurrence of an event that would preclude the 
instrument from being included in tier 2 capital, a tax event, or if 
the issuing entity is required to register as an investment company 
pursuant to the Investment Company Act. In addition:
    (A) The FDIC-supervised institution must receive the prior approval 
of the FDIC to exercise a call option on the instrument.
    (B) The FDIC-supervised institution does not create at issuance, 
through action or communication, an expectation the call option will be 
exercised.
    (C) Prior to exercising the call option, or immediately thereafter, 
the FDIC-supervised institution must either: Replace any amount called 
with an equivalent amount of an instrument that meets the criteria for 
regulatory capital under this section; \14\ or demonstrate to the 
satisfaction of the FDIC that following redemption, the FDIC-supervised 
institution would continue to hold an amount of capital that is 
commensurate with its risk.
---------------------------------------------------------------------------

    \14\ A FDIC-supervised institution may replace tier 2 capital 
instruments concurrent with the redemption of existing tier 2 
capital instruments.
---------------------------------------------------------------------------

    (vi) The holder of the instrument must have no contractual right to 
accelerate payment of principal or interest on the instrument, except 
in the event of a receivership, insolvency, liquidation, or similar 
proceeding of the FDIC-supervised institution.
    (vii) The instrument has no credit-sensitive feature, such as a 
dividend or interest rate that is reset periodically based in whole or 
in part on the FDIC-supervised institution's credit standing, but may 
have a dividend rate that is adjusted periodically independent of the 
FDIC-supervised institution's credit standing, in relation to general 
market interest rates or similar adjustments.
    (viii) The FDIC-supervised institution, or an entity that the FDIC-
supervised institution controls, has not purchased and has not directly 
or indirectly funded the purchase of the instrument.
    (ix) If the instrument is not issued directly by the FDIC-
supervised institution or by a subsidiary of the FDIC-supervised 
institution that is an operating entity, the only asset of the issuing 
entity is its investment in the capital of the FDIC-supervised 
institution, and proceeds must be immediately available without 
limitation to the FDIC-supervised institution or the FDIC-supervised 
institution's top-tier holding company in a form that meets or exceeds 
all the other criteria for tier 2 capital instruments under this 
section.\15\
---------------------------------------------------------------------------

    \15\ A FDIC-supervised institution may disregard de minimis 
assets related to the operation of the issuing entity for purposes 
of this criterion.
---------------------------------------------------------------------------

    (x) Redemption of the instrument prior to maturity or repurchase 
requires the prior approval of the FDIC.
    (xi) For an advanced approaches FDIC-supervised institution, the 
governing agreement, offering circular, or prospectus of an instrument 
issued after the date on which the advanced approaches FDIC-supervised 
institution becomes subject to this part under Sec.  324.1(f) must 
disclose that the holders of the instrument may be fully subordinated 
to interests held by the U.S. government in the event that the FDIC-
supervised institution enters into a receivership, insolvency, 
liquidation, or similar proceeding.

[[Page 55492]]

    (2) Total capital minority interest, subject to the limitations set 
forth in Sec.  324.21(e), that is not included in the FDIC-supervised 
institution's tier 1 capital.
    (3) ALLL up to 1.25 percent of the FDIC-supervised institution's 
standardized total risk-weighted assets not including any amount of the 
ALLL (and excluding in the case of a market risk FDIC-supervised 
institution, its standardized market risk-weighted assets).
    (4) Any instrument that qualified as tier 2 capital under the 
FDIC's general risk-based capital rules under 12 CFR part 325, appendix 
A (state nonmember banks) and 12 CFR part 390, appendix Z (state saving 
associations) as then in effect, that were issued under the Small 
Business Jobs Act of 2010,\16\ or prior to October 4, 2010, under the 
Emergency Economic Stabilization Act of 2008.\17\
---------------------------------------------------------------------------

    \16\ Public Law 111-240; 124 Stat. 2504 (2010)
    \17\ Public Law 110-343, 122 Stat. 3765 (2008)
---------------------------------------------------------------------------

    (5) For an FDIC-supervised institution that makes an AOCI opt-out 
election (as defined in Sec.  324.22(b)(2), 45 percent of pretax net 
unrealized gains on available-for-sale preferred stock classified as an 
equity security under GAAP and available-for-sale equity exposures.
    (6) Notwithstanding the criteria for tier 2 capital instruments 
referenced above, an instrument with terms that provide that the 
instrument may be called earlier than five years upon the occurrence of 
a rating agency event does not violate the criterion in paragraph 
(d)(1)(v) of this section provided that the instrument was issued and 
included in an FDIC-supervised institution's tier 1 or tier 2 capital 
prior to January 1, 2014, and that such instrument satisfies all other 
criteria under this paragraph (d).
    (e) FDIC approval of a capital element. (1) An FDIC-supervised 
institution must receive FDIC prior approval to include a capital 
element (as listed in this section) in its common equity tier 1 
capital, additional tier 1 capital, or tier 2 capital unless the 
element:
    (i) Was included in an FDIC-supervised institution's tier 1 capital 
or tier 2 capital prior to May 19, 2010, in accordance with the FDIC's 
risk-based capital rules that were effective as of that date and the 
underlying instrument may continue to be included under the criteria 
set forth in this section; or
    (ii) Is equivalent, in terms of capital quality and ability to 
absorb losses with respect to all material terms, to a regulatory 
capital element the FDIC determined may be included in regulatory 
capital pursuant to paragraph (e)(3) of this section.
    (2) When considering whether an FDIC-supervised institution may 
include a regulatory capital element in its common equity tier 1 
capital, additional tier 1 capital, or tier 2 capital, the FDIC will 
consult with the OCC and the Federal Reserve.
    (3) After determining that a regulatory capital element may be 
included in an FDIC-supervised institution's common equity tier 1 
capital, additional tier 1 capital, or tier 2 capital, the FDIC will 
make its decision publicly available, including a brief description of 
the material terms of the regulatory capital element and the rationale 
for the determination.


Sec.  324.21  Minority interest.

    (a) Applicability. For purposes of Sec.  324.20, an FDIC-supervised 
institution is subject to the minority interest limitations in this 
section if:
    (1) A consolidated subsidiary of the FDIC-supervised institution 
has issued regulatory capital that is not owned by the FDIC-supervised 
institution; and
    (2) For each relevant regulatory capital ratio of the consolidated 
subsidiary, the ratio exceeds the sum of the subsidiary's minimum 
regulatory capital requirements plus its capital conservation buffer.
    (b) Difference in capital adequacy standards at the subsidiary 
level. For purposes of the minority interest calculations in this 
section, if the consolidated subsidiary issuing the capital is not 
subject to capital adequacy standards similar to those of the FDIC-
supervised institution, the FDIC-supervised institution must assume 
that the capital adequacy standards of the FDIC-supervised institution 
apply to the subsidiary.
    (c) Common equity tier 1 minority interest includable in the common 
equity tier 1 capital of the FDIC-supervised institution. For each 
consolidated subsidiary of an FDIC-supervised institution, the amount 
of common equity tier 1 minority interest the FDIC-supervised 
institution may include in common equity tier 1 capital is equal to:
    (1) The common equity tier 1 minority interest of the subsidiary; 
minus
    (2) The percentage of the subsidiary's common equity tier 1 capital 
that is not owned by the FDIC-supervised institution, multiplied by the 
difference between the common equity tier 1 capital of the subsidiary 
and the lower of:
    (i) The amount of common equity tier 1 capital the subsidiary must 
hold, or would be required to hold pursuant to paragraph (b) of this 
section, to avoid restrictions on distributions and discretionary bonus 
payments under Sec.  324.11 or equivalent standards established by the 
subsidiary's home country supervisor, or
    (ii)(A) The standardized total risk-weighted assets of the FDIC-
supervised institution that relate to the subsidiary multiplied by
    (B) The common equity tier 1 capital ratio the subsidiary must 
maintain to avoid restrictions on distributions and discretionary bonus 
payments under Sec.  324.11 or equivalent standards established by the 
subsidiary's home country supervisor.
    (d) Tier 1 minority interest includable in the tier 1 capital of 
the FDIC-supervised institution. For each consolidated subsidiary of 
the FDIC-supervised institution, the amount of tier 1 minority interest 
the FDIC-supervised institution may include in tier 1 capital is equal 
to:
    (1) The tier 1 minority interest of the subsidiary; minus
    (2) The percentage of the subsidiary's tier 1 capital that is not 
owned by the FDIC-supervised institution multiplied by the difference 
between the tier 1 capital of the subsidiary and the lower of:
    (i) The amount of tier 1 capital the subsidiary must hold, or would 
be required to hold pursuant to paragraph (b) of this section, to avoid 
restrictions on distributions and discretionary bonus payments under 
Sec.  324.11 or equivalent standards established by the subsidiary's 
home country supervisor, or
    (ii)(A) The standardized total risk-weighted assets of the FDIC-
supervised institution that relate to the subsidiary multiplied by
    (B) The tier 1 capital ratio the subsidiary must maintain to avoid 
restrictions on distributions and discretionary bonus payments under 
Sec.  324.11 or equivalent standards established by the subsidiary's 
home country supervisor.
    (e) Total capital minority interest includable in the total capital 
of the FDIC-supervised institution. For each consolidated subsidiary of 
the FDIC-supervised institution, the amount of total capital minority 
interest the FDIC-supervised institution may include in total capital 
is equal to:
    (1) The total capital minority interest of the subsidiary; minus
    (2) The percentage of the subsidiary's total capital that is not 
owned by the FDIC-supervised institution multiplied by the difference 
between the total capital of the subsidiary and the lower of:
    (i) The amount of total capital the subsidiary must hold, or would 
be

[[Page 55493]]

required to hold pursuant to paragraph (b) of this section, to avoid 
restrictions on distributions and discretionary bonus payments under 
Sec.  324.11 or equivalent standards established by the subsidiary's 
home country supervisor, or
    (ii)(A) The standardized total risk-weighted assets of the FDIC-
supervised institution that relate to the subsidiary multiplied by
    (B) The total capital ratio the subsidiary must maintain to avoid 
restrictions on distributions and discretionary bonus payments under 
Sec.  324.11 or equivalent standards established by the subsidiary's 
home country supervisor.


Sec.  324.22  Regulatory capital adjustments and deductions.

    (a) Regulatory capital deductions from common equity tier 1 
capital. An FDIC-supervised institution must deduct from the sum of its 
common equity tier 1 capital elements the items set forth in this 
paragraph:
    (1) Goodwill, net of associated deferred tax liabilities (DTLs) in 
accordance with paragraph (e) of this section, including goodwill that 
is embedded in the valuation of a significant investment in the capital 
of an unconsolidated financial institution in the form of common stock 
(and that is reflected in the consolidated financial statements of the 
FDIC-supervised institution), in accordance with paragraph (d) of this 
section;
    (2) Intangible assets, other than MSAs, net of associated DTLs in 
accordance with paragraph (e) of this section;
    (3) Deferred tax assets (DTAs) that arise from net operating loss 
and tax credit carryforwards net of any related valuation allowances 
and net of DTLs in accordance with paragraph (e) of this section;
    (4) Any gain-on-sale in connection with a securitization exposure;
    (5)(i) Any defined benefit pension fund net asset, net of any 
associated DTL in accordance with paragraph (e) of this section, held 
by a depository institution holding company. With the prior approval of 
the FDIC, this deduction is not required for any defined benefit 
pension fund net asset to the extent the depository institution holding 
company has unrestricted and unfettered access to the assets in that 
fund.
    (ii) For an insured depository institution, no deduction is 
required.
    (iii) An FDIC-supervised institution must risk weight any portion 
of the defined benefit pension fund asset that is not deducted under 
paragraphs (a)(5)(i) or (a)(5)(ii) of this section as if the FDIC-
supervised institution directly holds a proportional ownership share of 
each exposure in the defined benefit pension fund.
    (6) For an advanced approaches FDIC-supervised institution that has 
completed the parallel run process and that has received notification 
from the FDIC pursuant to Sec.  324.121(d), the amount of expected 
credit loss that exceeds its eligible credit reserves; and
    (7) With respect to a financial subsidiary, the aggregate amount of 
the FDIC-supervised institution's outstanding equity investment, 
including retained earnings, in its financial subsidiaries (as defined 
in 12 CFR 362.17). An FDIC-supervised institution must not consolidate 
the assets and liabilities of a financial subsidiary with those of the 
parent bank, and no other deduction is required under paragraph (c) of 
this section for investments in the capital instruments of financial 
subsidiaries.
    (8) (i) A state savings association must deduct the aggregate 
amount of its outstanding investments, (both equity and debt) in, and 
extensions of credit to, subsidiaries that are not includable 
subsidiaries as defined in paragraph (a)(8)(iv) of this section and may 
not consolidate the assets and liabilities of the subsidiary with those 
of the state savings association. Any such deductions shall be from 
assets and common equity tier 1 capital, except as provided in 
paragraphs (a)(8)(ii) and (iii) of this section.
    (ii) If a state savings association has any investments (both debt 
and equity) in, or extensions of credit to, one or more subsidiaries 
engaged in any activity that would not fall within the scope of 
activities in which includable subsidiaries as defined in paragraph 
(a)(8)(iv) of this section may engage, it must deduct such investments 
and extensions of credit from assets and, thus, common equity tier 1 
capital in accordance with paragraph (a)(8)(i) of this section.
    (iii) If a state savings association holds a subsidiary (either 
directly or through a subsidiary) that is itself a domestic depository 
institution, the FDIC may, in its sole discretion upon determining that 
the amount of common equity tier 1 capital that would be required would 
be higher if the assets and liabilities of such subsidiary were 
consolidated with those of the parent state savings association than 
the amount that would be required if the parent state savings 
association's investment were deducted pursuant to paragraphs (a)(8)(i) 
and (ii) of this section, consolidate the assets and liabilities of 
that subsidiary with those of the parent state savings association in 
calculating the capital adequacy of the parent state savings 
association, regardless of whether the subsidiary would otherwise be an 
includable subsidiary as defined in paragraph (a)(8)(iv) of this 
section.
    (iv) For purposes of this section, the term includable subsidiary 
means a subsidiary of a state savings association that is:
    (A) Engaged solely in activities that are permissible for a 
national bank;
    (B) Engaged in activities not permissible for a national bank, but 
only if acting solely as agent for its customers and such agency 
position is clearly documented in the state savings association's 
files;
    (C) Engaged solely in mortgage-banking activities;
    (D)(1) Itself an insured depository institution or a company the 
sole investment of which is an insured depository institution, and
    (2) Was acquired by the parent state savings association prior to 
May 1, 1989; or
    (E) A subsidiary of any state savings association existing as a 
state savings association on August 9, 1989 that--
    (1) Was chartered prior to October 15, 1982, as a savings bank or a 
cooperative bank under state law, or
    (2) Acquired its principal assets from an association that was 
chartered prior to October 15, 1982, as a savings bank or a cooperative 
bank under state law.
    (9) Identified losses. An FDIC-supervised institution must deduct 
identified losses (to the extent that common equity tier 1 capital 
would have been reduced if the appropriate accounting entries to 
reflect the identified losses had been recorded on the FDIC-supervised 
institution's books).
    (b) Regulatory adjustments to common equity tier 1 capital. (1) An 
FDIC-supervised institution must adjust the sum of common equity tier 1 
capital elements pursuant to the requirements set forth in this 
paragraph. Such adjustments to common equity tier 1 capital must be 
made net of the associated deferred tax effects.
    (i) An FDIC-supervised institution that makes an AOCI opt-out 
election (as defined in paragraph (b)(2) of this section) must make the 
adjustments required under Sec.  324.22(b)(2)(i).
    (ii) An FDIC-supervised institution that is an advanced approaches 
FDIC-supervised institution, and an FDIC-supervised institution that 
has not made an AOCI opt-out election (as defined in paragraph (b)(2) 
of this section), must deduct any accumulated net gains and add any 
accumulated net losses on cash flow hedges included in AOCI that

[[Page 55494]]

relate to the hedging of items that are not recognized at fair value on 
the balance sheet.
    (iii) An FDIC-supervised institution must deduct any net gain and 
add any net loss related to changes in the fair value of liabilities 
that are due to changes in the FDIC-supervised institution's own credit 
risk. An advanced approaches FDIC-supervised institution also must 
deduct the credit spread premium over the risk free rate for 
derivatives that are liabilities.
    (2) AOCI opt-out election. (i) An FDIC-supervised institution that 
is not an advanced approaches FDIC-supervised institution may make a 
one-time election to opt out of the requirement to include all 
components of AOCI (with the exception of accumulated net gains and 
losses on cash flow hedges related to items that are not fair-valued on 
the balance sheet) in common equity tier 1 capital (AOCI opt-out 
election). An FDIC-supervised institution that makes an AOCI opt-out 
election in accordance with this paragraph (b)(2) must adjust common 
equity tier 1 capital as follows:
    (A) Subtract any net unrealized gains and add any net unrealized 
losses on available-for-sale securities;
    (B) Subtract any net unrealized losses on available-for-sale 
preferred stock classified as an equity security under GAAP and 
available-for-sale equity exposures;
    (C) Subtract any accumulated net gains and add any accumulated net 
losses on cash flow hedges;
    (D) Subtract any amounts recorded in AOCI attributed to defined 
benefit postretirement plans resulting from the initial and subsequent 
application of the relevant GAAP standards that pertain to such plans 
(excluding, at the FDIC-supervised institution's option, the portion 
relating to pension assets deducted under paragraph (a)(5) of this 
section); and
    (E) Subtract any net unrealized gains and add any net unrealized 
losses on held-to-maturity securities that are included in AOCI.
    (ii) An FDIC-supervised institution that is not an advanced 
approaches FDIC-supervised institution must make its AOCI opt-out 
election in its Call Report filed for the first reporting period after 
the date required for such FDIC-supervised institution to comply with 
subpart A of this part as set forth in Sec.  324.1(f).
    (iii) With respect to an FDIC-supervised institution that is not an 
advanced approaches FDIC-supervised institution, each of its subsidiary 
banking organizations that is subject to regulatory capital 
requirements issued by the Federal Reserve, the FDIC, or the OCC \18\ 
must elect the same option as the FDIC-supervised institution pursuant 
to this paragraph (b)(2).
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    \18\ These rules include the regulatory capital requirements set 
forth at 12 CFR part 3 (OCC); 12 CFR part 225 (Board); 12 CFR part 
325, and 12 CFR part 390 (FDIC).
---------------------------------------------------------------------------

    (iv) With prior notice to the FDIC, an FDIC-supervised institution 
resulting from a merger, acquisition, or purchase transaction and that 
is not an advanced approaches FDIC-supervised institution may change 
its AOCI opt-out election in its Call Report filed for the first 
reporting period after the date required for such FDIC-supervised 
institution to comply with subpart A of this part as set forth in Sec.  
324.1(f) if:
    (A) Other than as set forth in paragraph (b)(2)(iv)(C) of this 
section, the merger, acquisition, or purchase transaction involved the 
acquisition or purchase of all or substantially all of either the 
assets or voting stock of another banking organization that is subject 
to regulatory capital requirements issued by the Federal Reserve, the 
FDIC, or the OCC;
    (B) Prior to the merger, acquisition, or purchase transaction, only 
one of the banking organizations involved in the transaction made an 
AOCI opt-out election under this section; and
    (C) An FDIC-supervised institution may, with the prior approval of 
the FDIC, change its AOCI opt-out election under this paragraph in the 
case of a merger, acquisition, or purchase transaction that meets the 
requirements set forth at paragraph (b)(2)(iv)(B) of this section, but 
does not meet the requirements of paragraph (b)(2)(iv)(A). In making 
such a determination, the FDIC may consider the terms of the merger, 
acquisition, or purchase transaction, as well as the extent of any 
changes to the risk profile, complexity, and scope of operations of the 
FDIC-supervised institution resulting from the merger, acquisition, or 
purchase transaction.
    (c) Deductions from regulatory capital related to investments in 
capital instruments--\19\ (1) Investment in the FDIC-supervised 
institution's own capital instruments. An FDIC-supervised institution 
must deduct an investment in the FDIC-supervised institution's own 
capital instruments as follows:
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    \19\ The FDIC-supervised institution must calculate amounts 
deducted under paragraphs (c) through (f) of this section after it 
calculates the amount of ALLL includable in tier 2 capital under 
Sec.  324.20(d)(3).
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    (i) An FDIC-supervised institution must deduct an investment in the 
FDIC-supervised institution's own common stock instruments from its 
common equity tier 1 capital elements to the extent such instruments 
are not excluded from regulatory capital under Sec.  324.20(b)(1);
    (ii) An FDIC-supervised institution must deduct an investment in 
the FDIC-supervised institution's own additional tier 1 capital 
instruments from its additional tier 1 capital elements; and
    (iii) An FDIC-supervised institution must deduct an investment in 
the FDIC-supervised institution's own tier 2 capital instruments from 
its tier 2 capital elements.
    (2) Corresponding deduction approach. For purposes of subpart C of 
this part, the corresponding deduction approach is the methodology used 
for the deductions from regulatory capital related to reciprocal cross 
holdings (as described in paragraph (c)(3) of this section), non-
significant investments in the capital of unconsolidated financial 
institutions (as described in paragraph (c)(4) of this section), and 
non-common stock significant investments in the capital of 
unconsolidated financial institutions (as described in paragraph (c)(5) 
of this section). Under the corresponding deduction approach, an FDIC-
supervised institution must make deductions from the component of 
capital for which the underlying instrument would qualify if it were 
issued by the FDIC-supervised institution itself, as described in 
paragraphs (c)(2)(i)-(iii) of this section. If the FDIC-supervised 
institution does not have a sufficient amount of a specific component 
of capital to effect the required deduction, the shortfall must be 
deducted according to paragraph (f) of this section.
    (i) If an investment is in the form of an instrument issued by a 
financial institution that is not a regulated financial institution, 
the FDIC-supervised institution must treat the instrument as:
    (A) A common equity tier 1 capital instrument if it is common stock 
or represents the most subordinated claim in liquidation of the 
financial institution; and
    (B) An additional tier 1 capital instrument if it is subordinated 
to all creditors of the financial institution and is senior in 
liquidation only to common shareholders.
    (ii) If an investment is in the form of an instrument issued by a 
regulated financial institution and the instrument does not meet the 
criteria for common equity tier 1, additional tier 1 or tier 2 capital 
instruments under Sec.  324.20, the FDIC-supervised institution must 
treat the instrument as:

[[Page 55495]]

    (A) A common equity tier 1 capital instrument if it is common stock 
included in GAAP equity or represents the most subordinated claim in 
liquidation of the financial institution;
    (B) An additional tier 1 capital instrument if it is included in 
GAAP equity, subordinated to all creditors of the financial 
institution, and senior in a receivership, insolvency, liquidation, or 
similar proceeding only to common shareholders; and
    (C) A tier 2 capital instrument if it is not included in GAAP 
equity but considered regulatory capital by the primary supervisor of 
the financial institution.
    (iii) If an investment is in the form of a non-qualifying capital 
instrument (as defined in Sec.  324.300(c)), the FDIC-supervised 
institution must treat the instrument as:
    (A) An additional tier 1 capital instrument if such instrument was 
included in the issuer's tier 1 capital prior to May 19, 2010; or
    (B) A tier 2 capital instrument if such instrument was included in 
the issuer's tier 2 capital (but not includable in tier 1 capital) 
prior to May 19, 2010.
    (3) Reciprocal cross holdings in the capital of financial 
institutions. An FDIC-supervised institution must deduct investments in 
the capital of other financial institutions it holds reciprocally, 
where such reciprocal cross holdings result from a formal or informal 
arrangement to swap, exchange, or otherwise intend to hold each other's 
capital instruments, by applying the corresponding deduction approach.
    (4) Non-significant investments in the capital of unconsolidated 
financial institutions. (i) An FDIC-supervised institution must deduct 
its non-significant investments in the capital of unconsolidated 
financial institutions (as defined in Sec.  324.2) that, in the 
aggregate, exceed 10 percent of the sum of the FDIC-supervised 
institution's common equity tier 1 capital elements minus all 
deductions from and adjustments to common equity tier 1 capital 
elements required under paragraphs (a) through (c)(3) of this section 
(the 10 percent threshold for non-significant investments) by applying 
the corresponding deduction approach.\20\ The deductions described in 
this section are net of associated DTLs in accordance with paragraph 
(e) of this section. In addition, an FDIC-supervised institution that 
underwrites a failed underwriting, with the prior written approval of 
the FDIC, for the period of time stipulated by the FDIC, is not 
required to deduct a non-significant investment in the capital of an 
unconsolidated financial institution pursuant to this paragraph to the 
extent the investment is related to the failed underwriting.\21\
---------------------------------------------------------------------------

    \20\ With the prior written approval of the FDIC, for the period 
of time stipulated by the FDIC, a FDIC-supervised institution is not 
required to deduct a non-significant investment in the capital 
instrument of an unconsolidated financial institution pursuant to 
this paragraph if the financial institution is in distress and if 
such investment is made for the purpose of providing financial 
support to the financial institution, as determined by the FDIC.
    \21\ Any non-significant investments in the capital of 
unconsolidated financial institutions that do not exceed the 10 
percent threshold for non-significant investments under this section 
must be assigned the appropriate risk weight under subparts D, E, or 
F of this part, as applicable.
---------------------------------------------------------------------------

    (ii) The amount to be deducted under this section from a specific 
capital component is equal to:
    (A) The FDIC-supervised institution's non-significant investments 
in the capital of unconsolidated financial institutions exceeding the 
10 percent threshold for non-significant investments, multiplied by
    (B) The ratio of the FDIC-supervised institution's non-significant 
investments in the capital of unconsolidated financial institutions in 
the form of such capital component to the FDIC-supervised institution's 
total non-significant investments in unconsolidated financial 
institutions.
    (5) Significant investments in the capital of unconsolidated 
financial institutions that are not in the form of common stock. An 
FDIC-supervised institution must deduct its significant investments in 
the capital of unconsolidated financial institutions that are not in 
the form of common stock by applying the corresponding deduction 
approach.\22\ The deductions described in this section are net of 
associated DTLs in accordance with paragraph (e) of this section. In 
addition, with the prior written approval of the FDIC, for the period 
of time stipulated by the FDIC, an FDIC-supervised institution that 
underwrites a failed underwriting is not required to deduct a 
significant investment in the capital of an unconsolidated financial 
institution pursuant to this paragraph if such investment is related to 
such failed underwriting.
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    \22\ With prior written approval of the FDIC, for the period of 
time stipulated by the FDIC, a FDIC-supervised institution is not 
required to deduct a significant investment in the capital 
instrument of an unconsolidated financial institution in distress 
which is not in the form of common stock pursuant to this section if 
such investment is made for the purpose of providing financial 
support to the financial institution as determined by the FDIC.
---------------------------------------------------------------------------

    (d) Items subject to the 10 and 15 percent common equity tier 1 
capital deduction thresholds. (1) An FDIC-supervised institution must 
deduct from common equity tier 1 capital elements the amount of each of 
the items set forth in this paragraph that, individually, exceeds 10 
percent of the sum of the FDIC-supervised institution's common equity 
tier 1 capital elements, less adjustments to and deductions from common 
equity tier 1 capital required under paragraphs (a) through (c) of this 
section (the 10 percent common equity tier 1 capital deduction 
threshold).
    (i) DTAs arising from temporary differences that the FDIC-
supervised institution could not realize through net operating loss 
carrybacks, net of any related valuation allowances and net of DTLs, in 
accordance with paragraph (e) of this section. An FDIC-supervised 
institution is not required to deduct from the sum of its common equity 
tier 1 capital elements DTAs (net of any related valuation allowances 
and net of DTLs, in accordance with Sec.  324.22(e)) arising from 
timing differences that the FDIC-supervised institution could realize 
through net operating loss carrybacks. The FDIC-supervised institution 
must risk weight these assets at 100 percent. For an FDIC-supervised 
institution that is a member of a consolidated group for tax purposes, 
the amount of DTAs that could be realized through net operating loss 
carrybacks may not exceed the amount that the FDIC-supervised 
institution could reasonably expect to have refunded by its parent 
holding company.
    (ii) MSAs net of associated DTLs, in accordance with paragraph (e) 
of this section.
    (iii) Significant investments in the capital of unconsolidated 
financial institutions in the form of common stock, net of associated 
DTLs in accordance with paragraph (e) of this section.\23\ Significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock subject to the 10 percent common equity tier 1 
capital deduction threshold may be reduced by any goodwill embedded in 
the valuation of such investments deducted by the FDIC-supervised 
institution pursuant to paragraph (a)(1) of this section. In addition, 
with the prior written approval of the FDIC, for the period of time 
stipulated by the FDIC, an FDIC-supervised institution that underwrites

[[Page 55496]]

a failed underwriting is not required to deduct a significant 
investment in the capital of an unconsolidated financial institution in 
the form of common stock pursuant to this paragraph (d) if such 
investment is related to such failed underwriting.
---------------------------------------------------------------------------

    \23\ With the prior written approval of the FDIC, for the period 
of time stipulated by the FDIC, a FDIC-supervised institution is not 
required to deduct a significant investment in the capital 
instrument of an unconsolidated financial institution in distress in 
the form of common stock pursuant to this section if such investment 
is made for the purpose of providing financial support to the 
financial institution as determined by the FDIC.
---------------------------------------------------------------------------

    (2) An FDIC-supervised institution must deduct from common equity 
tier 1 capital elements the items listed in paragraph (d)(1) of this 
section that are not deducted as a result of the application of the 10 
percent common equity tier 1 capital deduction threshold, and that, in 
aggregate, exceed 17.65 percent of the sum of the FDIC-supervised 
institution's common equity tier 1 capital elements, minus adjustments 
to and deductions from common equity tier 1 capital required under 
paragraphs (a) through (c) of this section, minus the items listed in 
paragraph (d)(1) of this section (the 15 percent common equity tier 1 
capital deduction threshold). Any goodwill that has been deducted under 
paragraph (a)(1) of this section can be excluded from the significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock.\24\
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    \24\ The amount of the items in paragraph (d) of this section 
that is not deducted from common equity tier 1 capital pursuant to 
this section must be included in the risk-weighted assets of the 
FDIC-supervised institution and assigned a 250 percent risk weight.
---------------------------------------------------------------------------

    (3) For purposes of calculating the amount of DTAs subject to the 
10 and 15 percent common equity tier 1 capital deduction thresholds, an 
FDIC-supervised institution may exclude DTAs and DTLs relating to 
adjustments made to common equity tier 1 capital under Sec.  paragraph 
(b) of this section. An FDIC-supervised institution that elects to 
exclude DTAs relating to adjustments under paragraph (b) of this 
section also must exclude DTLs and must do so consistently in all 
future calculations. An FDIC-supervised institution may change its 
exclusion preference only after obtaining the prior approval of the 
FDIC.
    (e) Netting of DTLs against assets subject to deduction. (1) Except 
as described in paragraph (e)(3) of this section, netting of DTLs 
against assets that are subject to deduction under this section is 
permitted, but not required, if the following conditions are met:
    (i) The DTL is associated with the asset; and
    (ii) The DTL would be extinguished if the associated asset becomes 
impaired or is derecognized under GAAP.
    (2) A DTL may only be netted against a single asset.
    (3) For purposes of calculating the amount of DTAs subject to the 
threshold deduction in paragraph (d) of this section, the amount of 
DTAs that arise from net operating loss and tax credit carryforwards, 
net of any related valuation allowances, and of DTAs arising from 
temporary differences that the FDIC-supervised institution could not 
realize through net operating loss carrybacks, net of any related 
valuation allowances, may be offset by DTLs (that have not been netted 
against assets subject to deduction pursuant to paragraph (e)(1) of 
this section) subject to the conditions set forth in this paragraph.
    (i) Only the DTAs and DTLs that relate to taxes levied by the same 
taxation authority and that are eligible for offsetting by that 
authority may be offset for purposes of this deduction.
    (ii) The amount of DTLs that the FDIC-supervised institution nets 
against DTAs that arise from net operating loss and tax credit 
carryforwards, net of any related valuation allowances, and against 
DTAs arising from temporary differences that the FDIC-supervised 
institution could not realize through net operating loss carrybacks, 
net of any related valuation allowances, must be allocated in 
proportion to the amount of DTAs that arise from net operating loss and 
tax credit carryforwards (net of any related valuation allowances, but 
before any offsetting of DTLs) and of DTAs arising from temporary 
differences that the FDIC-supervised institution could not realize 
through net operating loss carrybacks (net of any related valuation 
allowances, but before any offsetting of DTLs), respectively.
    (4) An FDIC-supervised institution may offset DTLs embedded in the 
carrying value of a leveraged lease portfolio acquired in a business 
combination that are not recognized under GAAP against DTAs that are 
subject to paragraph (d) of this section in accordance with this 
paragraph (e).
    (5) An FDIC-supervised institution must net DTLs against assets 
subject to deduction under this section in a consistent manner from 
reporting period to reporting period. An FDIC-supervised institution 
may change its preference regarding the manner in which it nets DTLs 
against specific assets subject to deduction under Sec.  324.22 only 
after obtaining the prior approval of the FDIC.
    (f) Insufficient amounts of a specific regulatory capital component 
to effect deductions. Under the corresponding deduction approach, if an 
FDIC-supervised institution does not have a sufficient amount of a 
specific component of capital to effect the required deduction after 
completing the deductions required under paragraph (d) of this section, 
the FDIC-supervised institution must deduct the shortfall from the next 
higher (that is, more subordinated) component of regulatory capital.
    (g) Treatment of assets that are deducted. An FDIC-supervised 
institution must exclude from standardized total risk-weighted assets 
and, as applicable, advanced approaches total risk-weighted assets any 
item deducted from regulatory capital under paragraphs (a), (c), and 
(d) of this section.
    (h) Net long position. (1) For purposes of calculating an 
investment in the FDIC-supervised institution's own capital instrument 
and an investment in the capital of an unconsolidated financial 
institution under this section, the net long position is the gross long 
position in the underlying instrument determined in accordance with 
paragraph (h)(2) of this section, as adjusted to recognize a short 
position in the same instrument calculated in accordance with paragraph 
(h)(3) of this section.
    (2) Gross long position. The gross long position is determined as 
follows:
    (i) For an equity exposure that is held directly, the adjusted 
carrying value as that term is defined in Sec.  324.51(b);
    (ii) For an exposure that is held directly and is not an equity 
exposure or a securitization exposure, the exposure amount as that term 
is defined in Sec.  324.2;
    (iii) For an indirect exposure, the FDIC-supervised institution's 
carrying value of the investment in the investment fund, provided that, 
alternatively:
    (A) An FDIC-supervised institution may, with the prior approval of 
the FDIC, use a conservative estimate of the amount of its investment 
in its own capital instruments or the capital of an unconsolidated 
financial institution held through a position in an index; or
    (B) An FDIC-supervised institution may calculate the gross long 
position for the FDIC-supervised institution's own capital instruments 
or the capital of an unconsolidated financial institution by 
multiplying the FDIC-supervised institution's carrying value of its 
investment in the investment fund by either:
    (1) The highest stated investment limit (in percent) for 
investments in the FDIC-supervised institution's own capital 
instruments or the capital of unconsolidated financial institutions as 
stated in the prospectus, partnership agreement, or similar contract 
defining

[[Page 55497]]

permissible investments of the investment fund or
    (2) The investment fund's actual holdings of own capital 
instruments or the capital of unconsolidated financial institutions.
    (iv) For a synthetic exposure, the amount of the FDIC-supervised 
institution's loss on the exposure if the reference capital instrument 
were to have a value of zero.
    (3) Adjustments to reflect a short position. In order to adjust the 
gross long position to recognize a short position in the same 
instrument, the following criteria must be met:
    (i) The maturity of the short position must match the maturity of 
the long position, or the short position has a residual maturity of at 
least one year (maturity requirement), or
    (ii) For a position that is a trading asset or trading liability 
(whether on- or off-balance sheet) as reported on the FDIC-supervised 
institution's Call Report, if the FDIC-supervised institution has a 
contractual right or obligation to sell the long position at a specific 
point in time and the counterparty to the contract has an obligation to 
purchase the long position if the FDIC-supervised institution exercises 
its right to sell, this point in time may be treated as the maturity of 
the long position such that the maturity of the long position and short 
position are deemed to match for purposes of the maturity requirement, 
even if the maturity of the short position is less than one year; and
    (iii) For an investment in the FDIC-supervised institution's own 
capital instrument under paragraph (c)(1) of this section or an 
investment in a capital of an unconsolidated financial institution 
under paragraphs (c)(4), (c)(5), and (d)(1)(iii) of this section:
    (A) An FDIC-supervised institution may only net a short position 
against a long position in the FDIC-supervised institution's own 
capital instrument under paragraph (c)(1) if the short position 
involves no counterparty credit risk.
    (B) A gross long position in an FDIC-supervised institution's own 
capital instrument or in a capital instrument of an unconsolidated 
financial institution resulting from a position in an index may be 
netted against a short position in the same index. Long and short 
positions in the same index without maturity dates are considered to 
have matching maturities.
    (C) A short position in an index that is hedging a long cash or 
synthetic position in an FDIC-supervised institution's own capital 
instrument or in a capital instrument of an unconsolidated financial 
institution can be decomposed to provide recognition of the hedge. More 
specifically, the portion of the index that is composed of the same 
underlying instrument that is being hedged may be used to offset the 
long position if both the long position being hedged and the short 
position in the index are reported as a trading asset or trading 
liability (whether on- or off-balance sheet) on the FDIC-supervised 
institution's Call Report, and the hedge is deemed effective by the 
FDIC-supervised institution's internal control processes, which have 
not been found to be inadequate by the FDIC.


Sec. Sec.  324.23 through 324.29  [Reserved]

Subpart D--Risk-Weighted Assets--Standardized Approach


Sec.  324.30  Applicability.

    (a) This subpart sets forth methodologies for determining risk-
weighted assets for purposes of the generally applicable risk-based 
capital requirements for all FDIC-supervised institutions.
    (b) Notwithstanding paragraph (a) of this section, a market risk 
FDIC-supervised institution must exclude from its calculation of risk-
weighted assets under this subpart the risk-weighted asset amounts of 
all covered positions, as defined in subpart F of this part (except 
foreign exchange positions that are not trading positions, OTC 
derivative positions, cleared transactions, and unsettled 
transactions).

Risk-Weighted Assets for General Credit Risk


Sec.  324.31  Mechanics for calculating risk-weighted assets for 
general credit risk.

    (a) General risk-weighting requirements. An FDIC-supervised 
institution must apply risk weights to its exposures as follows:
    (1) An FDIC-supervised institution must determine the exposure 
amount of each on-balance sheet exposure, each OTC derivative contract, 
and each off-balance sheet commitment, trade and transaction-related 
contingency, guarantee, repo-style transaction, financial standby 
letter of credit, forward agreement, or other similar transaction that 
is not:
    (i) An unsettled transaction subject to Sec.  324.38;
    (ii) A cleared transaction subject to Sec.  324.35;
    (iii) A default fund contribution subject to Sec.  324.35;
    (iv) A securitization exposure subject to Sec. Sec.  324.41 through 
324.45; or
    (v) An equity exposure (other than an equity OTC derivative 
contract) subject to Sec. Sec.  324.51 through 324.53.
    (2) The FDIC-supervised institution must multiply each exposure 
amount by the risk weight appropriate to the exposure based on the 
exposure type or counterparty, eligible guarantor, or financial 
collateral to determine the risk-weighted asset amount for each 
exposure.
    (b) Total risk-weighted assets for general credit risk equals the 
sum of the risk-weighted asset amounts calculated under this section.


Sec.  324.32  General risk weights.

    (a) Sovereign exposures--(1) Exposures to the U.S. government. (i) 
Notwithstanding any other requirement in this subpart, an FDIC-
supervised institution must assign a zero percent risk weight to:
    (A) An exposure to the U.S. government, its central bank, or a U.S. 
government agency; and
    (B) The portion of an exposure that is directly and unconditionally 
guaranteed by the U.S. government, its central bank, or a U.S. 
government agency. This includes a deposit or other exposure, or the 
portion of a deposit or other exposure, that is insured or otherwise 
unconditionally guaranteed by the FDIC or National Credit Union 
Administration.
    (ii) An FDIC-supervised institution must assign a 20 percent risk 
weight to the portion of an exposure that is conditionally guaranteed 
by the U.S. government, its central bank, or a U.S. government agency. 
This includes an exposure, or the portion of an exposure, that is 
conditionally guaranteed by the FDIC or National Credit Union 
Administration.
    (2) Other sovereign exposures. In accordance with Table 1 to Sec.  
324.32, an FDIC-supervised institution must assign a risk weight to a 
sovereign exposure based on the CRC applicable to the sovereign or the 
sovereign's OECD membership status if there is no CRC applicable to the 
sovereign.

     Table 1 to Sec.   324.32--Risk Weights for Sovereign Exposures
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                                           Risk Weight
                                                           (in percent)
------------------------------------------------------------------------
CRC............................................    0-1                0
                                                     2               20
                                                     3               50
                                                   4-6              100
                                                     7              150
------------------------------------------------------------------------
OECD Member with No CRC................................               0
Non-OECD Member with No CRC............................             100

[[Page 55498]]

 
Sovereign Default......................................             150
------------------------------------------------------------------------

    (3) Certain sovereign exposures. Notwithstanding paragraph (a)(2) 
of this section, an FDIC-supervised institution may assign to a 
sovereign exposure a risk weight that is lower than the applicable risk 
weight in Table 1 to Sec.  324.32 if:
    (i) The exposure is denominated in the sovereign's currency;
    (ii) The FDIC-supervised institution has at least an equivalent 
amount of liabilities in that currency; and
    (iii) The risk weight is not lower than the risk weight that the 
home country supervisor allows FDIC-supervised institutions under its 
jurisdiction to assign to the same exposures to the sovereign.
    (4) Exposures to a non-OECD member sovereign with no CRC. Except as 
provided in paragraphs (a)(3), (a)(5) and (a)(6) of this section, an 
FDIC-supervised institution must assign a 100 percent risk weight to an 
exposure to a sovereign if the sovereign does not have a CRC.
    (5) Exposures to an OECD member sovereign with no CRC. Except as 
provided in paragraph (a)(6) of this section, an FDIC-supervised 
institution must assign a 0 percent risk weight to an exposure to a 
sovereign that is a member of the OECD if the sovereign does not have a 
CRC.
    (6) Sovereign default. An FDIC-supervised institution must assign a 
150 percent risk weight to a sovereign exposure immediately upon 
determining that an event of sovereign default has occurred, or if an 
event of sovereign default has occurred during the previous five years.
    (b) Certain supranational entities and multilateral development 
banks (MDBs). An FDIC-supervised institution must assign a zero percent 
risk weight to an exposure to the Bank for International Settlements, 
the European Central Bank, the European Commission, the International 
Monetary Fund, or an MDB.
    (c) Exposures to GSEs. (1) An FDIC-supervised institution must 
assign a 20 percent risk weight to an exposure to a GSE other than an 
equity exposure or preferred stock.
    (2) An FDIC-supervised institution must assign a 100 percent risk 
weight to preferred stock issued by a GSE.
    (d) Exposures to depository institutions, foreign banks, and credit 
unions--(1) Exposures to U.S. depository institutions and credit 
unions. An FDIC-supervised institution must assign a 20 percent risk 
weight to an exposure to a depository institution or credit union that 
is organized under the laws of the United States or any state thereof, 
except as otherwise provided under paragraph (d)(3) of this section.
    (2) Exposures to foreign banks. (i) Except as otherwise provided 
under paragraphs (d)(2)(iv) and (d)(3) of this section, an FDIC-
supervised institution must assign a risk weight to an exposure to a 
foreign bank, in accordance with Table 2 to Sec.  324.32, based on the 
CRC that corresponds to the foreign bank's home country or the OECD 
membership status of the foreign bank's home country if there is no CRC 
applicable to the foreign bank's home country.

  Table 2 to Sec.   324.32--Risk Weights for Exposures to Foreign Banks
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                                           Risk Weight
                                                           (in percent)
------------------------------------------------------------------------
CRC............................................    0-1               20
                                                     2               50
                                                     3              100
                                                   4-7              150
------------------------------------------------------------------------
OECD Member with No CRC................................              20
Non-OECD Member with No CRC............................             100
Sovereign Default......................................             150
------------------------------------------------------------------------

    (ii) An FDIC-supervised institution must assign a 20 percent risk 
weight to an exposure to a foreign bank whose home country is a member 
of the OECD and does not have a CRC.
    (iii) An FDIC-supervised institution must assign a 100 percent risk 
weight to an exposure to a foreign bank whose home country is not a 
member of the OECD and does not have a CRC, with the exception of self-
liquidating, trade-related contingent items that arise from the 
movement of goods, and that have a maturity of three months or less, 
which may be assigned a 20 percent risk weight.
    (iv) An FDIC-supervised institution must assign a 150 percent risk 
weight to an exposure to a foreign bank immediately upon determining 
that an event of sovereign default has occurred in the bank's home 
country, or if an event of sovereign default has occurred in the 
foreign bank's home country during the previous five years.
    (3) An FDIC-supervised institution must assign a 100 percent risk 
weight to an exposure to a financial institution if the exposure may be 
included in that financial institution's capital unless the exposure 
is:
    (i) An equity exposure;
    (ii) A significant investment in the capital of an unconsolidated 
financial institution in the form of common stock pursuant to Sec.  
324.22(d)(iii);
    (iii) Deducted from regulatory capital under Sec.  324.22; or
    (iv) Subject to a 150 percent risk weight under paragraph 
(d)(2)(iv) or Table 2 of paragraph (d)(2) of this section.
    (e) Exposures to public sector entities (PSEs)--(1) Exposures to 
U.S. PSEs. (i) An FDIC-supervised institution must assign a 20 percent 
risk weight to a general obligation exposure to a PSE that is organized 
under the laws of the United States or any state or political 
subdivision thereof.
    (ii) An FDIC-supervised institution must assign a 50 percent risk 
weight to a revenue obligation exposure to a PSE that is organized 
under the laws of the United States or any state or political 
subdivision thereof.
    (2) Exposures to foreign PSEs. (i) Except as provided in paragraphs 
(e)(1) and (e)(3) of this section, an FDIC-supervised institution must 
assign a risk weight to a general obligation exposure to a PSE, in 
accordance with Table 3 to Sec.  324.32, based on the CRC that 
corresponds to the PSE's home country or the OECD membership status of 
the PSE's home country if there is no CRC applicable to the PSE's home 
country.
    (ii) Except as provided in paragraphs (e)(1) and (e)(3) of this 
section, an FDIC-supervised institution must assign a risk weight to a 
revenue obligation exposure to a PSE, in accordance with Table 4 to 
Sec.  324.32, based on the CRC that corresponds to the PSE's home 
country; or the OECD membership status of the PSE's home country if 
there is no CRC applicable to the PSE's home country.
    (3) An FDIC-supervised institution may assign a lower risk weight 
than would otherwise apply under Tables 3 or 4 to Sec.  324.32 to an 
exposure to a foreign PSE if:
    (i) The PSE's home country supervisor allows banks under its 
jurisdiction to assign a lower risk weight to such exposures; and
    (ii) The risk weight is not lower than the risk weight that 
corresponds to the PSE's home country in accordance with Table 1 to 
Sec.  324.32.

     Table 3 to Sec.   324.32--Risk Weights for non-U.S. PSE General
                               Obligations
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                                           Risk Weight
                                                           (in percent)
------------------------------------------------------------------------
CRC............................................    0-1               20
                                                     2               50
                                                     3              100

[[Page 55499]]

 
                                                   4-7              150
------------------------------------------------------------------------
OECD Member with No CRC................................              20
Non-OECD Member with No CRC............................             100
Sovereign Default......................................             150
------------------------------------------------------------------------


     Table 4 to Sec.   324.32--Risk Weights for non-U.S. PSE Revenue
                               Obligations
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                                           Risk Weight
                                                           (in percent)
------------------------------------------------------------------------
CRC............................................    0-1               50
                                                   2-3               50
                                                   4-7              150
OECD Member with No CRC................................              50
Non-OECD Member with No CRC............................             100
Sovereign Default......................................             150
------------------------------------------------------------------------

    (4) Exposures to PSEs from an OECD member sovereign with no CRC. 
(i) An FDIC-supervised institution must assign a 20 percent risk weight 
to a general obligation exposure to a PSE whose home country is an OECD 
member sovereign with no CRC.
    (ii) An FDIC-supervised institution must assign a 50 percent risk 
weight to a revenue obligation exposure to a PSE whose home country is 
an OECD member sovereign with no CRC.
    (5) Exposures to PSEs whose home country is not an OECD member 
sovereign with no CRC. An FDIC-supervised institution must assign a 100 
percent risk weight to an exposure to a PSE whose home country is not a 
member of the OECD and does not have a CRC.
    (6) An FDIC-supervised institution must assign a 150 percent risk 
weight to a PSE exposure immediately upon determining that an event of 
sovereign default has occurred in a PSE's home country or if an event 
of sovereign default has occurred in the PSE's home country during the 
previous five years.
    (f) Corporate exposures. An FDIC-supervised institution must assign 
a 100 percent risk weight to all its corporate exposures.
    (g) Residential mortgage exposures. (1) An FDIC-supervised 
institution must assign a 50 percent risk weight to a first-lien 
residential mortgage exposure that:
    (i) Is secured by a property that is either owner-occupied or 
rented;
    (ii) Is made in accordance with prudent underwriting standards, 
including standards relating to the loan amount as a percent of the 
appraised value of the property;
    (iii) Is not 90 days or more past due or carried in nonaccrual 
status; and
    (iv) Is not restructured or modified.
    (2) An FDIC-supervised institution must assign a 100 percent risk 
weight to a first-lien residential mortgage exposure that does not meet 
the criteria in paragraph (g)(1) of this section, and to junior-lien 
residential mortgage exposures.
    (3) For the purpose of this paragraph (g), if an FDIC-supervised 
institution holds the first-lien and junior-lien(s) residential 
mortgage exposures, and no other party holds an intervening lien, the 
FDIC-supervised institution must combine the exposures and treat them 
as a single first-lien residential mortgage exposure.
    (4) A loan modified or restructured solely pursuant to the U.S. 
Treasury's Home Affordable Mortgage Program is not modified or 
restructured for purposes of this section.
    (h) Pre-sold construction loans. An FDIC-supervised institution 
must assign a 50 percent risk weight to a pre-sold construction loan 
unless the purchase contract is cancelled, in which case an FDIC-
supervised institution must assign a 100 percent risk weight.
    (i) Statutory multifamily mortgages. An FDIC-supervised institution 
must assign a 50 percent risk weight to a statutory multifamily 
mortgage.
    (j) High-volatility commercial real estate (HVCRE) exposures. An 
FDIC-supervised institution must assign a 150 percent risk weight to an 
HVCRE exposure.
    (k) Past due exposures. Except for a sovereign exposure or a 
residential mortgage exposure, an FDIC-supervised institution must 
determine a risk weight for an exposure that is 90 days or more past 
due or on nonaccrual according to the requirements set forth in this 
paragraph.
    (1) An FDIC-supervised institution must assign a 150 percent risk 
weight to the portion of the exposure that is not guaranteed or that is 
unsecured.
    (2) An FDIC-supervised institution may assign a risk weight to the 
guaranteed portion of a past due exposure based on the risk weight that 
applies under Sec.  324.36 if the guarantee or credit derivative meets 
the requirements of that section.
    (3) An FDIC-supervised institution may assign a risk weight to the 
collateralized portion of a past due exposure based on the risk weight 
that applies under Sec.  324.37 if the collateral meets the 
requirements of that section.
    (l) Other assets. (1) An FDIC-supervised institution must assign a 
zero percent risk weight to cash owned and held in all offices of the 
FDIC-supervised institution or in transit; to gold bullion held in the 
FDIC-supervised institution's own vaults or held in another depository 
institution's vaults on an allocated basis, to the extent the gold 
bullion assets are offset by gold bullion liabilities; and to exposures 
that arise from the settlement of cash transactions (such as equities, 
fixed income, spot foreign exchange and spot commodities) with a 
central counterparty where there is no assumption of ongoing 
counterparty credit risk by the central counterparty after settlement 
of the trade and associated default fund contributions.
    (2) An FDIC-supervised institution must assign a 20 percent risk 
weight to cash items in the process of collection.
    (3) An FDIC-supervised institution must assign a 100 percent risk 
weight to DTAs arising from temporary differences that the FDIC-
supervised institution could realize through net operating loss 
carrybacks.
    (4) An FDIC-supervised institution must assign a 250 percent risk 
weight to the portion of each of the following items that is not 
deducted from common equity tier 1 capital pursuant to Sec.  324.22(d):
    (i) MSAs; and
    (ii) DTAs arising from temporary differences that the FDIC-
supervised institution could not realize through net operating loss 
carrybacks.
    (5) An FDIC-supervised institution must assign a 100 percent risk 
weight to all assets not specifically assigned a different risk weight 
under this subpart and that are not deducted from tier 1 or tier 2 
capital pursuant to Sec.  324.22.
    (6) Notwithstanding the requirements of this section, an FDIC-
supervised institution may assign an asset that is not included in one 
of the categories provided in this section to the risk weight category 
applicable under the capital rules applicable to bank holding companies 
and savings and loan holding companies at 12 CFR part 217, provided 
that all of the following conditions apply:
    (i) The FDIC-supervised institution is not authorized to hold the 
asset under applicable law other than debt previously contracted or 
similar authority; and
    (ii) The risks associated with the asset are substantially similar 
to the risks of assets that are otherwise assigned to a risk weight 
category of less than 100 percent under this subpart.


Sec.  324.33  Off-balance sheet exposures.

    (a) General. (1) An FDIC-supervised institution must calculate the 
exposure amount of an off-balance sheet exposure

[[Page 55500]]

using the credit conversion factors (CCFs) in paragraph (b) of this 
section.
    (2) Where an FDIC-supervised institution commits to provide a 
commitment, the FDIC-supervised institution may apply the lower of the 
two applicable CCFs.
    (3) Where an FDIC-supervised institution provides a commitment 
structured as a syndication or participation, the FDIC-supervised 
institution is only required to calculate the exposure amount for its 
pro rata share of the commitment.
    (4) Where an FDIC-supervised institution provides a commitment, 
enters into a repurchase agreement, or provides a credit-enhancing 
representation and warranty, and such commitment, repurchase agreement, 
or credit-enhancing representation and warranty is not a securitization 
exposure, the exposure amount shall be no greater than the maximum 
contractual amount of the commitment, repurchase agreement, or credit-
enhancing representation and warranty, as applicable.
    (b) Credit conversion factors--(1) Zero percent CCF. An FDIC-
supervised institution must apply a zero percent CCF to the unused 
portion of a commitment that is unconditionally cancelable by the FDIC-
supervised institution.
    (2) 20 percent CCF. An FDIC-supervised institution must apply a 20 
percent CCF to the amount of:
    (i) Commitments with an original maturity of one year or less that 
are not unconditionally cancelable by the FDIC-supervised institution; 
and
    (ii) Self-liquidating, trade-related contingent items that arise 
from the movement of goods, with an original maturity of one year or 
less.
    (3) 50 percent CCF. An FDIC-supervised institution must apply a 50 
percent CCF to the amount of:
    (i) Commitments with an original maturity of more than one year 
that are not unconditionally cancelable by the FDIC-supervised 
institution; and
    (ii) Transaction-related contingent items, including performance 
bonds, bid bonds, warranties, and performance standby letters of 
credit.
    (4) 100 percent CCF. An FDIC-supervised institution must apply a 
100 percent CCF to the amount of the following off-balance-sheet items 
and other similar transactions:
    (i) Guarantees;
    (ii) Repurchase agreements (the off-balance sheet component of 
which equals the sum of the current fair values of all positions the 
FDIC-supervised institution has sold subject to repurchase);
    (iii) Credit-enhancing representations and warranties that are not 
securitization exposures;
    (iv) Off-balance sheet securities lending transactions (the off-
balance sheet component of which equals the sum of the current fair 
values of all positions the FDIC-supervised institution has lent under 
the transaction);
    (v) Off-balance sheet securities borrowing transactions (the off-
balance sheet component of which equals the sum of the current fair 
values of all non-cash positions the FDIC-supervised institution has 
posted as collateral under the transaction);
    (vi) Financial standby letters of credit; and
    (vii) Forward agreements.


Sec.  324.34  OTC derivative contracts.

    (a) Exposure amount--(1) Single OTC derivative contract. Except as 
modified by paragraph (b) of this section, the exposure amount for a 
single OTC derivative contract that is not subject to a qualifying 
master netting agreement is equal to the sum of the FDIC-supervised 
institution's current credit exposure and potential future credit 
exposure (PFE) on the OTC derivative contract.
    (i) Current credit exposure. The current credit exposure for a 
single OTC derivative contract is the greater of the mark-to-fair value 
of the OTC derivative contract or zero.
    (ii) PFE. (A) The PFE for a single OTC derivative contract, 
including an OTC derivative contract with a negative mark-to-fair 
value, is calculated by multiplying the notional principal amount of 
the OTC derivative contract by the appropriate conversion factor in 
Table 1 to Sec.  324.34.
    (B) For purposes of calculating either the PFE under this paragraph 
or the gross PFE under paragraph (a)(2) of this section for exchange 
rate contracts and other similar contracts in which the notional 
principal amount is equivalent to the cash flows, notional principal 
amount is the net receipts to each party falling due on each value date 
in each currency.
    (C) For an OTC derivative contract that does not fall within one of 
the specified categories in Table 1 to Sec.  324.34, the PFE must be 
calculated using the appropriate ``other'' conversion factor.
    (D) An FDIC-supervised institution must use an OTC derivative 
contract's effective notional principal amount (that is, the apparent 
or stated notional principal amount multiplied by any multiplier in the 
OTC derivative contract) rather than the apparent or stated notional 
principal amount in calculating PFE.
    (E) The PFE of the protection provider of a credit derivative is 
capped at the net present value of the amount of unpaid premiums.

                                     Table 1 to Sec.   324.34--Conversion Factor Matrix for Derivative Contracts \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Credit       Credit (non-
                                                              Foreign       (investment     investment-                      Precious
         Remaining maturity \2\            Interest rate   exchange rate       grade           grade          Equity      metals (except       Other
                                                             and gold        reference       reference                         gold)
                                                                            asset) \3\        asset)
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year or less........................            0.00            0.01            0.05            0.10            0.06            0.07            0.10
Greater than one year and less than or             0.005            0.05            0.05            0.10            0.08            0.07            0.12
 equal to five years....................
Greater than five years.................           0.015           0.075            0.05            0.10            0.10            0.08            0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For a derivative contract with multiple exchanges of principal, the conversion factor is multiplied by the number of remaining payments in the
  derivative contract.
\2\ For an OTC derivative contract that is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that
  the fair value of the contract is zero, the remaining maturity equals the time until the next reset date. For an interest rate derivative contract
  with a remaining maturity of greater than one year that meets these criteria, the minimum conversion factor is 0.005.
\3\ An FDIC-supervised institution must use the column labeled ``Credit (investment-grade reference asset)'' for a credit derivative whose reference
  asset is an outstanding unsecured long-term debt security without credit enhancement that is investment grade. An FDIC-supervised institution must use
  the column labeled ``Credit (non-investment-grade reference asset)'' for all other credit derivatives.

    (2) Multiple OTC derivative contracts subject to a qualifying 
master netting agreement. Except as modified by paragraph (b) of this 
section, the exposure amount for multiple OTC derivative contracts 
subject to a qualifying master netting agreement is equal to the sum of 
the net current credit exposure and the adjusted sum of the PFE amounts 
for all OTC derivative contracts subject to the qualifying master 
netting agreement.
    (i) Net current credit exposure. The net current credit exposure is 
the greater of the net sum of all positive and

[[Page 55501]]

negative mark-to-fair values of the individual OTC derivative contracts 
subject to the qualifying master netting agreement or zero.
    (ii) Adjusted sum of the PFE amounts. The adjusted sum of the PFE 
amounts, Anet, is calculated as Anet = (0.4 x Agross) + (0.6 x NGR x 
Agross), where:
    (A) Agross equals the gross PFE (that is, the sum of the PFE 
amounts as determined under paragraph (a)(1)(ii) of this section for 
each individual derivative contract subject to the qualifying master 
netting agreement); and
    (B) Net-to-gross Ratio (NGR) equals the ratio of the net current 
credit exposure to the gross current credit exposure. In calculating 
the NGR, the gross current credit exposure equals the sum of the 
positive current credit exposures (as determined under paragraph 
(a)(1)(i) of this section) of all individual derivative contracts 
subject to the qualifying master netting agreement.
    (b) Recognition of credit risk mitigation of collateralized OTC 
derivative contracts. (1) An FDIC-supervised institution may recognize 
the credit risk mitigation benefits of financial collateral that 
secures an OTC derivative contract or multiple OTC derivative contracts 
subject to a qualifying master netting agreement (netting set) by using 
the simple approach in Sec.  324.37(b).
    (2) As an alternative to the simple approach, an FDIC-supervised 
institution may recognize the credit risk mitigation benefits of 
financial collateral that secures such a contract or netting set if the 
financial collateral is marked-to-fair value on a daily basis and 
subject to a daily margin maintenance requirement by applying a risk 
weight to the exposure as if it were uncollateralized and adjusting the 
exposure amount calculated under paragraph (a)(1) or (2) of this 
section using the collateral haircut approach in Sec.  324.37(c). The 
FDIC-supervised institution must substitute the exposure amount 
calculated under paragraph (a)(1) or (2) of this section for [sum]E in 
the equation in Sec.  324.37(c)(2).
    (c) Counterparty credit risk for OTC credit derivatives--(1) 
Protection purchasers. An FDIC-supervised institution that purchases an 
OTC credit derivative that is recognized under Sec.  324.36 as a credit 
risk mitigant for an exposure that is not a covered position under 
subpart F is not required to compute a separate counterparty credit 
risk capital requirement under Sec.  324.32 provided that the FDIC-
supervised institution does so consistently for all such credit 
derivatives. The FDIC-supervised institution must either include all or 
exclude all such credit derivatives that are subject to a qualifying 
master netting agreement from any measure used to determine 
counterparty credit risk exposure to all relevant counterparties for 
risk-based capital purposes.
    (2) Protection providers. (i) An FDIC-supervised institution that 
is the protection provider under an OTC credit derivative must treat 
the OTC credit derivative as an exposure to the underlying reference 
asset. The FDIC-supervised institution is not required to compute a 
counterparty credit risk capital requirement for the OTC credit 
derivative under Sec.  324.32, provided that this treatment is applied 
consistently for all such OTC credit derivatives. The FDIC-supervised 
institution must either include all or exclude all such OTC credit 
derivatives that are subject to a qualifying master netting agreement 
from any measure used to determine counterparty credit risk exposure.
    (ii) The provisions of this paragraph (c)(2) apply to all relevant 
counterparties for risk-based capital purposes unless the FDIC-
supervised institution is treating the OTC credit derivative as a 
covered position under subpart F, in which case the FDIC-supervised 
institution must compute a supplemental counterparty credit risk 
capital requirement under this section.
    (d) Counterparty credit risk for OTC equity derivatives. (1) An 
FDIC-supervised institution must treat an OTC equity derivative 
contract as an equity exposure and compute a risk-weighted asset amount 
for the OTC equity derivative contract under Sec. Sec.  324.51 through 
324.53 (unless the FDIC-supervised institution is treating the contract 
as a covered position under subpart F of this part).
    (2) In addition, the FDIC-supervised institution must also 
calculate a risk-based capital requirement for the counterparty credit 
risk of an OTC equity derivative contract under this section if the 
FDIC-supervised institution is treating the contract as a covered 
position under subpart F of this part.
    (3) If the FDIC-supervised institution risk weights the contract 
under the Simple Risk-Weight Approach (SRWA) in Sec.  324.52, the FDIC-
supervised institution may choose not to hold risk-based capital 
against the counterparty credit risk of the OTC equity derivative 
contract, as long as it does so for all such contracts. Where the OTC 
equity derivative contracts are subject to a qualified master netting 
agreement, an FDIC-supervised institution using the SRWA must either 
include all or exclude all of the contracts from any measure used to 
determine counterparty credit risk exposure.
    (e) Clearing member FDIC-supervised institution's exposure amount. 
A clearing member FDIC-supervised institution's exposure amount for an 
OTC derivative contract or netting set of OTC derivative contracts 
where the FDIC-supervised institution is either acting as a financial 
intermediary and enters into an offsetting transaction with a QCCP or 
where the FDIC-supervised institution provides a guarantee to the QCCP 
on the performance of the client equals the exposure amount calculated 
according to paragraph (a)(1) or (2) of this section multiplied by the 
scaling factor 0.71. If the FDIC-supervised institution determines that 
a longer period is appropriate, the FDIC-supervised institution must 
use a larger scaling factor to adjust for a longer holding period as 
follows:
[GRAPHIC] [TIFF OMITTED] TR10SE13.014


where H equals the holding period greater than five days. Additionally, 
the FDIC may require the FDIC-supervised institution to set a longer 
holding period if the FDIC determines that a longer period is 
appropriate due to the nature, structure, or characteristics of the 
transaction or is commensurate with the risks associated with the 
transaction.


Sec.  324.35  Cleared transactions.

    (a) General requirements--(1) Clearing member clients. An FDIC-
supervised institution that is a clearing member client must use the 
methodologies described in paragraph (b) of this section to calculate 
risk-weighted assets for a cleared transaction.
    (2) Clearing members. An FDIC-supervised institution that is a 
clearing member must use the methodologies described in paragraph (c) 
of this section to calculate its risk-weighted assets for a cleared 
transaction and paragraph (d) of this section to calculate its risk-
weighted assets for its default fund contribution to a CCP.
    (b) Clearing member client FDIC-supervised institutions--(1) Risk-
weighted assets for cleared transactions. (i) To determine the risk-
weighted asset amount for a cleared transaction, an FDIC-supervised 
institution that is a clearing member client must multiply the trade 
exposure amount for the cleared transaction, calculated in accordance 
with paragraph (b)(2) of this section, by the risk weight appropriate 
for the cleared transaction, determined

[[Page 55502]]

in accordance with paragraph (b)(3) of this section.
    (ii) A clearing member client FDIC-supervised institution's total 
risk-weighted assets for cleared transactions is the sum of the risk-
weighted asset amounts for all its cleared transactions.
    (2) Trade exposure amount. (i) For a cleared transaction that is 
either a derivative contract or a netting set of derivative contracts, 
the trade exposure amount equals:
    (A) The exposure amount for the derivative contract or netting set 
of derivative contracts, calculated using the methodology used to 
calculate exposure amount for OTC derivative contracts under Sec.  
324.34, plus
    (B) The fair value of the collateral posted by the clearing member 
client FDIC-supervised institution and held by the CCP, clearing 
member, or custodian in a manner that is not bankruptcy remote.
    (ii) For a cleared transaction that is a repo-style transaction or 
netting set of repo-style transactions, the trade exposure amount 
equals:
    (A) The exposure amount for the repo-style transaction calculated 
using the methodologies under Sec.  324.37(c), plus
    (B) The fair value of the collateral posted by the clearing member 
client FDIC-supervised institution and held by the CCP, clearing 
member, or custodian in a manner that is not bankruptcy remote.
    (3) Cleared transaction risk weights. (i) For a cleared transaction 
with a QCCP, a clearing member client FDIC-supervised institution must 
apply a risk weight of:
    (A) 2 percent if the collateral posted by the FDIC-supervised 
institution to the QCCP or clearing member is subject to an arrangement 
that prevents any losses to the clearing member client FDIC-supervised 
institution due to the joint default or a concurrent insolvency, 
liquidation, or receivership proceeding of the clearing member and any 
other clearing member clients of the clearing member; and the clearing 
member client FDIC-supervised institution has conducted sufficient 
legal review to conclude with a well-founded basis (and maintains 
sufficient written documentation of that legal review) that in the 
event of a legal challenge (including one resulting from an event of 
default or from liquidation, insolvency, or receivership proceedings) 
the relevant court and administrative authorities would find the 
arrangements to be legal, valid, binding and enforceable under the law 
of the relevant jurisdictions; or
    (B) 4 percent if the requirements of Sec.  324.35(b)(3)(A) are not 
met.
    (ii) For a cleared transaction with a CCP that is not a QCCP, a 
clearing member client FDIC-supervised institution must apply the risk 
weight appropriate for the CCP according to Sec.  324.32.
    (4) Collateral. (i) Notwithstanding any other requirements in this 
section, collateral posted by a clearing member client FDIC-supervised 
institution that is held by a custodian (in its capacity as custodian) 
in a manner that is bankruptcy remote from the CCP, the custodian, 
clearing member and other clearing member clients of the clearing 
member, is not subject to a capital requirement under this section.
    (ii) A clearing member client FDIC-supervised institution must 
calculate a risk-weighted asset amount for any collateral provided to a 
CCP, clearing member, or custodian in connection with a cleared 
transaction in accordance with the requirements under Sec.  324.32.
    (c) Clearing member FDIC-supervised institutions--(1) Risk-weighted 
assets for cleared transactions. (i) To determine the risk-weighted 
asset amount for a cleared transaction, a clearing member FDIC-
supervised institution must multiply the trade exposure amount for the 
cleared transaction, calculated in accordance with paragraph (c)(2) of 
this section, by the risk weight appropriate for the cleared 
transaction, determined in accordance with paragraph (c)(3) of this 
section.
    (ii) A clearing member FDIC-supervised institution's total risk-
weighted assets for cleared transactions is the sum of the risk-
weighted asset amounts for all of its cleared transactions.
    (2) Trade exposure amount. A clearing member FDIC-supervised 
institution must calculate its trade exposure amount for a cleared 
transaction as follows:
    (i) For a cleared transaction that is either a derivative contract 
or a netting set of derivative contracts, the trade exposure amount 
equals:
    (A) The exposure amount for the derivative contract, calculated 
using the methodology to calculate exposure amount for OTC derivative 
contracts under Sec.  324.34, plus
    (B) The fair value of the collateral posted by the clearing member 
FDIC-supervised institution and held by the CCP in a manner that is not 
bankruptcy remote.
    (ii) For a cleared transaction that is a repo-style transaction or 
netting set of repo-style transactions, trade exposure amount equals:
    (A) The exposure amount for repo-style transactions calculated 
using methodologies under Sec.  324.37(c), plus
    (B) The fair value of the collateral posted by the clearing member 
FDIC-supervised institution and held by the CCP in a manner that is not 
bankruptcy remote.
    (3) Cleared transaction risk weight. (i) A clearing member FDIC-
supervised institution must apply a risk weight of 2 percent to the 
trade exposure amount for a cleared transaction with a QCCP.
    (ii) For a cleared transaction with a CCP that is not a QCCP, a 
clearing member FDIC-supervised institution must apply the risk weight 
appropriate for the CCP according to Sec.  324.32.
    (4) Collateral. (i) Notwithstanding any other requirement in this 
section, collateral posted by a clearing member FDIC-supervised 
institution that is held by a custodian in a manner that is bankruptcy 
remote from the CCP is not subject to a capital requirement under this 
section.
    (ii) A clearing member FDIC-supervised institution must calculate a 
risk-weighted asset amount for any collateral provided to a CCP, 
clearing member, or a custodian in connection with a cleared 
transaction in accordance with requirements under Sec.  324.32.
    (d) Default fund contributions--(1) General requirement. A clearing 
member FDIC-supervised institution must determine the risk-weighted 
asset amount for a default fund contribution to a CCP at least 
quarterly, or more frequently if, in the opinion of the FDIC-supervised 
institution or the FDIC, there is a material change in the financial 
condition of the CCP.
    (2) Risk-weighted asset amount for default fund contributions to 
non-qualifying CCPs. A clearing member FDIC-supervised institution's 
risk-weighted asset amount for default fund contributions to CCPs that 
are not QCCPs equals the sum of such default fund contributions 
multiplied by 1,250 percent, or an amount determined by the FDIC, based 
on factors such as size, structure and membership characteristics of 
the CCP and riskiness of its transactions, in cases where such default 
fund contributions may be unlimited.
    (3) Risk-weighted asset amount for default fund contributions to 
QCCPs. A clearing member FDIC-supervised institution's risk-weighted 
asset amount for default fund contributions to QCCPs equals the sum of 
its capital requirement, KCM for each QCCP, as calculated 
under the methodology set forth in paragraphs (d)(3)(i) through (iii) 
of this section (Method 1), multiplied by

[[Page 55503]]

1,250 percent or in paragraph (d)(3)(iv) of this section (Method 2).
    (i) Method 1. The hypothetical capital requirement of a QCCP 
(KCCP) equals:
[GRAPHIC] [TIFF OMITTED] TR10SE13.015

Where

(A) EBRMi equals the exposure amount for each transaction 
cleared through the QCCP by clearing member i, calculated in 
accordance with Sec.  324.34 for OTC derivative contracts and Sec.  
324.37(c)(2) for repo-style transactions, provided that:
(1) For purposes of this section, in calculating the exposure amount 
the FDIC-supervised institution may replace the formula provided in 
Sec.  324.34(a)(2)(ii) with the following: Anet = (0.15 x Agross) + 
(0.85 x NGR x Agross); and
(2) For option derivative contracts that are cleared transactions, 
the PFE described in Sec.  324.34(a)(1)(ii) must be adjusted by 
multiplying the notional principal amount of the derivative contract 
by the appropriate conversion factor in Table 1 to Sec.  324.34 and 
the absolute value of the option's delta, that is, the ratio of the 
change in the value of the derivative contract to the corresponding 
change in the price of the underlying asset.
(3) For repo-style transactions, when applying Sec.  324.37(c)(2), 
the FDIC-supervised institution must use the methodology in Sec.  
324.37(c)(3);
(B) VMi equals any collateral posted by clearing member i 
to the QCCP that it is entitled to receive from the QCCP, but has 
not yet received, and any collateral that the QCCP has actually 
received from clearing member i;
(C) IMi equals the collateral posted as initial margin by 
clearing member i to the QCCP;
(D) DFi equals the funded portion of clearing member i's 
default fund contribution that will be applied to reduce the QCCP's 
loss upon a default by clearing member i;
(E) RW equals 20 percent, except when the FDIC has determined that a 
higher risk weight is more appropriate based on the specific 
characteristics of the QCCP and its clearing members; and
(F) Where a QCCP has provided its KCCP, an FDIC-
supervised institution must rely on such disclosed figure instead of 
calculating KCCP under this paragraph, unless the FDIC-
supervised institution determines that a more conservative figure is 
appropriate based on the nature, structure, or characteristics of 
the QCCP.

    (ii) For an FDIC-supervised institution that is a clearing member 
of a QCCP with a default fund supported by funded commitments, 
KCM equals:
[GRAPHIC] [TIFF OMITTED] TR10SE13.016

    Subscripts 1 and 2 denote the clearing members with the two largest 
ANet values. For purposes of this paragraph, for derivatives 
ANet is defined in Sec.  324.34(a)(2)(ii) and for repo-style 
transactions, ANet means the exposure amount as defined in 
Sec.  324.37(c)(2) using the methodology in Sec.  324.37(c)(3);
    (B) N equals the number of clearing members in the QCCP;
    (C) DFCCP equals the QCCP's own funds and other 
financial resources that would be used to cover its losses before 
clearing members' default fund contributions are used to cover losses;
    (D) DFCM equals funded default fund contributions from 
all clearing members and any other clearing member contributed 
financial resources that are available to absorb mutualized QCCP 
losses;
    (E) DF = DFCCP + DFCM (that is, the total 
funded default fund contribution);

[[Page 55504]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.017

Where

(1) DFi equals the FDIC-supervised institution's unfunded 
commitment to the default fund;
(2) DFCM equals the total of all clearing members' 
unfunded commitment to the default fund; and
(3) K*CM as defined in paragraph (d)(3)(ii) of this section.

    (B) For an FDIC-supervised institution that is a clearing member of 
a QCCP with a default fund supported by unfunded commitments and is 
unable to calculate KCM using the methodology described in 
paragraph (d)(3)(iii) of this section, KCM equals:
[GRAPHIC] [TIFF OMITTED] TR10SE13.018

Where

(1) IMi = the FDIC-supervised institution's initial 
margin posted to the QCCP;
(2) IMCM equals the total of initial margin posted to the 
QCCP; and
(3) K*CM as defined in paragraph (d)(3)(ii) of this section.

    (iv) Method 2. A clearing member FDIC-supervised institution's 
risk-weighted asset amount for its default fund contribution to a QCCP, 
RWADF, equals:


RWADF = Min {12.5 * DF; 0.18 * TE{time} 
Where

[[Page 55505]]

(A) TE equals the FDIC-supervised institution's trade exposure 
amount to the QCCP, calculated according to Sec.  324.35(c)(2);
(B) DF equals the funded portion of the FDIC-supervised 
institution's default fund contribution to the QCCP.

    (4) Total risk-weighted assets for default fund contributions. 
Total risk-weighted assets for default fund contributions is the sum of 
a clearing member FDIC-supervised institution's risk-weighted assets 
for all of its default fund contributions to all CCPs of which the 
FDIC-supervised institution is a clearing member.


Sec.  324.36  Guarantees and credit derivatives: Substitution 
treatment.

    (a) Scope. (1) General. An FDIC-supervised institution may 
recognize the credit risk mitigation benefits of an eligible guarantee 
or eligible credit derivative by substituting the risk weight 
associated with the protection provider for the risk weight assigned to 
an exposure, as provided under this section.
    (2) This section applies to exposures for which:
    (i) Credit risk is fully covered by an eligible guarantee or 
eligible credit derivative; or
    (ii) Credit risk is covered on a pro rata basis (that is, on a 
basis in which the FDIC-supervised institution and the protection 
provider share losses proportionately) by an eligible guarantee or 
eligible credit derivative.
    (3) Exposures on which there is a tranching of credit risk 
(reflecting at least two different levels of seniority) generally are 
securitization exposures subject to Sec. Sec.  324.41 through 324.45.
    (4) If multiple eligible guarantees or eligible credit derivatives 
cover a single exposure described in this section, an FDIC-supervised 
institution may treat the hedged exposure as multiple separate 
exposures each covered by a single eligible guarantee or eligible 
credit derivative and may calculate a separate risk-weighted asset 
amount for each separate exposure as described in paragraph (c) of this 
section.
    (5) If a single eligible guarantee or eligible credit derivative 
covers multiple hedged exposures described in paragraph (a)(2) of this 
section, an FDIC-supervised institution must treat each hedged exposure 
as covered by a separate eligible guarantee or eligible credit 
derivative and must calculate a separate risk-weighted asset amount for 
each exposure as described in paragraph (c) of this section.
    (b) Rules of recognition. (1) An FDIC-supervised institution may 
only recognize the credit risk mitigation benefits of eligible 
guarantees and eligible credit derivatives.
    (2) An FDIC-supervised institution may only recognize the credit 
risk mitigation benefits of an eligible credit derivative to hedge an 
exposure that is different from the credit derivative's reference 
exposure used for determining the derivative's cash settlement value, 
deliverable obligation, or occurrence of a credit event if:
    (i) The reference exposure ranks pari passu with, or is 
subordinated to, the hedged exposure; and
    (ii) The reference exposure and the hedged exposure are to the same 
legal entity, and legally enforceable cross-default or cross-
acceleration clauses are in place to ensure payments under the credit 
derivative are triggered when the obligated party of the hedged 
exposure fails to pay under the terms of the hedged exposure.
    (c) Substitution approach--(1) Full coverage. If an eligible 
guarantee or eligible credit derivative meets the conditions in 
paragraphs (a) and (b) of this section and the protection amount (P) of 
the guarantee or credit derivative is greater than or equal to the 
exposure amount of the hedged exposure, an FDIC-supervised institution 
may recognize the guarantee or credit derivative in determining the 
risk-weighted asset amount for the hedged exposure by substituting the 
risk weight applicable to the guarantor or credit derivative protection 
provider under Sec.  324.32 for the risk weight assigned to the 
exposure.
    (2) Partial coverage. If an eligible guarantee or eligible credit 
derivative meets the conditions in paragraphs(a) and (b) of this 
section and the protection amount (P) of the guarantee or credit 
derivative is less than the exposure amount of the hedged exposure, the 
FDIC-supervised institution must treat the hedged exposure as two 
separate exposures (protected and unprotected) in order to recognize 
the credit risk mitigation benefit of the guarantee or credit 
derivative.
    (i) The FDIC-supervised institution may calculate the risk-weighted 
asset amount for the protected exposure under Sec.  324.32, where the 
applicable risk weight is the risk weight applicable to the guarantor 
or credit derivative protection provider.
    (ii) The FDIC-supervised institution must calculate the risk-
weighted asset amount for the unprotected exposure under Sec.  324.32, 
where the applicable risk weight is that of the unprotected portion of 
the hedged exposure.
    (iii) The treatment provided in this section is applicable when the 
credit risk of an exposure is covered on a partial pro rata basis and 
may be applicable when an adjustment is made to the effective notional 
amount of the guarantee or credit derivative under paragraphs (d), (e), 
or (f) of this section.
    (d) Maturity mismatch adjustment. (1) An FDIC-supervised 
institution that recognizes an eligible guarantee or eligible credit 
derivative in determining the risk-weighted asset amount for a hedged 
exposure must adjust the effective notional amount of the credit risk 
mitigant to reflect any maturity mismatch between the hedged exposure 
and the credit risk mitigant.
    (2) A maturity mismatch occurs when the residual maturity of a 
credit risk mitigant is less than that of the hedged exposure(s).
    (3) The residual maturity of a hedged exposure is the longest 
possible remaining time before the obligated party of the hedged 
exposure is scheduled to fulfil its obligation on the hedged exposure. 
If a credit risk mitigant has embedded options that may reduce its 
term, the FDIC-supervised institution (protection purchaser) must use 
the shortest possible residual maturity for the credit risk mitigant. 
If a call is at the discretion of the protection provider, the residual 
maturity of the credit risk mitigant is at the first call date. If the 
call is at the discretion of the FDIC-supervised institution 
(protection purchaser), but the terms of the arrangement at origination 
of the credit risk mitigant contain a positive incentive for the FDIC-
supervised institution to call the transaction before contractual 
maturity, the remaining time to the first call date is the residual 
maturity of the credit risk mitigant.
    (4) A credit risk mitigant with a maturity mismatch may be 
recognized only if its original maturity is greater than or equal to 
one year and its residual maturity is greater than three months.
    (5) When a maturity mismatch exists, the FDIC-supervised 
institution must apply the following adjustment to reduce the effective 
notional amount of the credit risk mitigant: Pm = E x (t-0.25)/(T-
0.25), where:
    (i) Pm equals effective notional amount of the credit risk 
mitigant, adjusted for maturity mismatch;
    (ii) E equals effective notional amount of the credit risk 
mitigant;
    (iii) t equals the lesser of T or the residual maturity of the 
credit risk mitigant, expressed in years; and
    (iv) T equals the lesser of five or the residual maturity of the 
hedged exposure, expressed in years.
    (e) Adjustment for credit derivatives without restructuring as a 
credit event.

[[Page 55506]]

If an FDIC-supervised institution recognizes an eligible credit 
derivative that does not include as a credit event a restructuring of 
the hedged exposure involving forgiveness or postponement of principal, 
interest, or fees that results in a credit loss event (that is, a 
charge-off, specific provision, or other similar debit to the profit 
and loss account), the FDIC-supervised institution must apply the 
following adjustment to reduce the effective notional amount of the 
credit derivative: Pr = Pm x 0.60, where:
    (1) Pr equals effective notional amount of the credit risk 
mitigant, adjusted for lack of restructuring event (and maturity 
mismatch, if applicable); and
    (2) Pm equals effective notional amount of the credit risk mitigant 
(adjusted for maturity mismatch, if applicable).
    (f) Currency mismatch adjustment. (1) If an FDIC-supervised 
institution recognizes an eligible guarantee or eligible credit 
derivative that is denominated in a currency different from that in 
which the hedged exposure is denominated, the FDIC-supervised 
institution must apply the following formula to the effective notional 
amount of the guarantee or credit derivative: Pc = Pr x (1-
HFX), where:
    (i) Pc equals effective notional amount of the credit risk 
mitigant, adjusted for currency mismatch (and maturity mismatch and 
lack of restructuring event, if applicable);
    (ii) Pr equals effective notional amount of the credit risk 
mitigant (adjusted for maturity mismatch and lack of restructuring 
event, if applicable); and
    (iii) HFX equals haircut appropriate for the currency 
mismatch between the credit risk mitigant and the hedged exposure.
    (2) An FDIC-supervised institution must set HFX equal to 
eight percent unless it qualifies for the use of and uses its own 
internal estimates of foreign exchange volatility based on a ten-
business-day holding period. An FDIC-supervised institution qualifies 
for the use of its own internal estimates of foreign exchange 
volatility if it qualifies for the use of its own-estimates haircuts in 
Sec.  324.37(c)(4).
    (3) An FDIC-supervised institution must adjust HFX 
calculated in paragraph (f)(2) of this section upward if the FDIC-
supervised institution revalues the guarantee or credit derivative less 
frequently than once every 10 business days using the following square 
root of time formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.019

Sec.  324.37  Collateralized transactions.

    (a) General. (1) To recognize the risk-mitigating effects of 
financial collateral, an FDIC-supervised institution may use:
    (i) The simple approach in paragraph (b) of this section for any 
exposure; or
    (ii) The collateral haircut approach in paragraph (c) of this 
section for repo-style transactions, eligible margin loans, 
collateralized derivative contracts, and single-product netting sets of 
such transactions.
    (2) An FDIC-supervised institution may use any approach described 
in this section that is valid for a particular type of exposure or 
transaction; however, it must use the same approach for similar 
exposures or transactions.
    (b) The simple approach. (1) General requirements. (i) An FDIC-
supervised institution may recognize the credit risk mitigation 
benefits of financial collateral that secures any exposure.
    (ii) To qualify for the simple approach, the financial collateral 
must meet the following requirements:
    (A) The collateral must be subject to a collateral agreement for at 
least the life of the exposure;
    (B) The collateral must be revalued at least every six months; and
    (C) The collateral (other than gold) and the exposure must be 
denominated in the same currency.
    (2) Risk weight substitution. (i) An FDIC-supervised institution 
may apply a risk weight to the portion of an exposure that is secured 
by the fair value of financial collateral (that meets the requirements 
of paragraph (b)(1) of this section) based on the risk weight assigned 
to the collateral under Sec.  324.32. For repurchase agreements, 
reverse repurchase agreements, and securities lending and borrowing 
transactions, the collateral is the instruments, gold, and cash the 
FDIC-supervised institution has borrowed, purchased subject to resale, 
or taken as collateral from the counterparty under the transaction. 
Except as provided in paragraph (b)(3) of this section, the risk weight 
assigned to the collateralized portion of the exposure may not be less 
than 20 percent.
    (ii) An FDIC-supervised institution must apply a risk weight to the 
unsecured portion of the exposure based on the risk weight applicable 
to the exposure under this subpart.
    (3) Exceptions to the 20 percent risk-weight floor and other 
requirements. Notwithstanding paragraph (b)(2)(i) of this section:
    (i) An FDIC-supervised institution may assign a zero percent risk 
weight to an exposure to an OTC derivative contract that is marked-to-
market on a daily basis and subject to a daily margin maintenance 
requirement, to the extent the contract is collateralized by cash on 
deposit.
    (ii) An FDIC-supervised institution may assign a 10 percent risk 
weight to an exposure to an OTC derivative contract that is marked-to-
market daily and subject to a daily margin maintenance requirement, to 
the extent that the contract is collateralized by an exposure to a 
sovereign that qualifies for a zero percent risk weight under Sec.  
324.32.
    (iii) An FDIC-supervised institution may assign a zero percent risk 
weight to the collateralized portion of an exposure where:
    (A) The financial collateral is cash on deposit; or
    (B) The financial collateral is an exposure to a sovereign that 
qualifies for a zero percent risk weight under Sec.  324.32, and the 
FDIC-supervised institution has discounted the fair value of the 
collateral by 20 percent.
    (c) Collateral haircut approach--(1) General. An FDIC-supervised 
institution may recognize the credit risk mitigation benefits of 
financial collateral that secures an eligible margin loan, repo-style 
transaction, collateralized derivative contract, or single-product 
netting set of such transactions, and of any collateral that secures a 
repo-style transaction that is included in the FDIC-supervised 
institution's VaR-based measure under subpart F of this part by using 
the collateral haircut approach in this section. An FDIC-supervised

[[Page 55507]]

institution may use the standard supervisory haircuts in paragraph 
(c)(3) of this section or, with prior written approval of the FDIC, its 
own estimates of haircuts according to paragraph (c)(4) of this 
section.
    (2) Exposure amount equation. An FDIC-supervised institution must 
determine the exposure amount for an eligible margin loan, repo-style 
transaction, collateralized derivative contract, or a single-product 
netting set of such transactions by setting the exposure amount equal 
to max {0, [([sum]E - [sum]C) + [sum](Es x Hs) + [sum](Efx x 
Hfx)]{time} , where:
    (i)(A) For eligible margin loans and repo-style transactions and 
netting sets thereof, [sum]E equals the value of the exposure (the sum 
of the current fair values of all instruments, gold, and cash the FDIC-
supervised institution has lent, sold subject to repurchase, or posted 
as collateral to the counterparty under the transaction (or netting 
set)); and
    (B) For collateralized derivative contracts and netting sets 
thereof, [sum]E equals the exposure amount of the OTC derivative 
contract (or netting set) calculated under Sec.  324.34 (a)(1) or (2).
    (ii) [sum]C equals the value of the collateral (the sum of the 
current fair values of all instruments, gold and cash the FDIC-
supervised institution has borrowed, purchased subject to resale, or 
taken as collateral from the counterparty under the transaction (or 
netting set));
    (iii) Es equals the absolute value of the net position in a given 
instrument or in gold (where the net position in the instrument or gold 
equals the sum of the current fair values of the instrument or gold the 
FDIC-supervised institution has lent, sold subject to repurchase, or 
posted as collateral to the counterparty minus the sum of the current 
fair values of that same instrument or gold the FDIC-supervised 
institution has borrowed, purchased subject to resale, or taken as 
collateral from the counterparty);
    (iv) Hs equals the market price volatility haircut appropriate to 
the instrument or gold referenced in Es;
    (v) Efx equals the absolute value of the net position of 
instruments and cash in a currency that is different from the 
settlement currency (where the net position in a given currency equals 
the sum of the current fair values of any instruments or cash in the 
currency the FDIC-supervised institution has lent, sold subject to 
repurchase, or posted as collateral to the counterparty minus the sum 
of the current fair values of any instruments or cash in the currency 
the FDIC-supervised institution has borrowed, purchased subject to 
resale, or taken as collateral from the counterparty); and
    (vi) Hfx equals the haircut appropriate to the mismatch between the 
currency referenced in Efx and the settlement currency.
    (3) Standard supervisory haircuts. (i) An FDIC-supervised 
institution must use the haircuts for market price volatility (Hs) 
provided in Table 1 to Sec.  324.37, as adjusted in certain 
circumstances in accordance with the requirements of paragraphs 
(c)(3)(iii) and (iv) of this section.

                                   Table 1 to Sec.   324.37--Standard Supervisory Market Price Volatility Haircuts\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Haircut (in percent) assigned based on:
                                                              ------------------------------------------------------------------------
                                                                  Sovereign issuers risk weight     Non-sovereign issuers risk weight   Investment grade
                      Residual maturity                         under Sec.   324.32 (in percent)    under Sec.   324.32  (in percent)    securitization
                                                                               \2\                ------------------------------------   exposures (in
                                                              ------------------------------------                                          percent)
                                                                  Zero      20 or 50       100         20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than or equal to 1 year.................................         0.5         1.0        15.0         1.0         2.0         4.0                4.0
Greater than 1 year and less than or equal to 5 years........         2.0         3.0        15.0         4.0         6.0         8.0               12.0
Greater than 5 years.........................................         4.0         6.0        15.0         8.0        12.0        16.0               24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Main index equities (including convertible bonds) and gold..........................15.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other publicly traded equities (including convertible bonds)........................25.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mutual funds....................................................Highest haircut applicable to any security in
                                                                         which the fund can invest.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cash collateral held................................................................Zero.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other exposure types................................................................25.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The market price volatility haircuts in Table 1 to Sec.   324.37 are based on a 10 business-day holding period.
\2\ Includes a foreign PSE that receives a zero percent risk weight.

    (ii) For currency mismatches, an FDIC-supervised institution must 
use a haircut for foreign exchange rate volatility (Hfx) of 8.0 
percent, as adjusted in certain circumstances under paragraphs 
(c)(3)(iii) and (iv) of this section.
    (iii) For repo-style transactions, an FDIC-supervised institution 
may multiply the standard supervisory haircuts provided in paragraphs 
(c)(3)(i) and (ii) of this section by the square root of \1/2\ (which 
equals 0.707107).
    (iv) If the number of trades in a netting set exceeds 5,000 at any 
time during a quarter, an FDIC-supervised institution must adjust the 
supervisory haircuts provided in paragraphs (c)(3)(i) and (ii) of this 
section upward on the basis of a holding period of twenty business days 
for the following quarter except in the calculation of the exposure 
amount for purposes of Sec.  324.35. If a netting set contains one or 
more trades involving illiquid collateral or an OTC derivative that 
cannot be easily replaced, an FDIC-supervised institution must adjust 
the supervisory haircuts upward on the basis of a holding period of 
twenty business days. If over the two previous quarters more than two 
margin disputes on a netting set have occurred that lasted more than 
the holding period, then the FDIC-supervised institution must adjust 
the supervisory haircuts upward for that netting set on the basis of a 
holding period that is at least two times the minimum holding period 
for that netting set. An FDIC-

[[Page 55508]]

supervised institution must adjust the standard supervisory haircuts 
upward using the following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.020


(A) TM equals a holding period of longer than 10 business 
days for eligible margin loans and derivative contracts or longer 
than 5 business days for repo-style transactions;
(B) HS equals the standard supervisory haircut; and
(C) TS equals 10 business days for eligible margin loans 
and derivative contracts or 5 business days for repo-style 
transactions.

    (v) If the instrument an FDIC-supervised institution has lent, sold 
subject to repurchase, or posted as collateral does not meet the 
definition of financial collateral, the FDIC-supervised institution 
must use a 25.0 percent haircut for market price volatility 
(Hs).
    (4) Own internal estimates for haircuts. With the prior written 
approval of the FDIC, an FDIC-supervised institution may calculate 
haircuts (Hs and Hfx) using its own internal estimates of the 
volatilities of market prices and foreign exchange rates:
    (i) To receive FDIC approval to use its own internal estimates, an 
FDIC-supervised institution must satisfy the following minimum 
standards:
    (A) An FDIC-supervised institution must use a 99th percentile one-
tailed confidence interval;
    (B) The minimum holding period for a repo-style transaction is five 
business days and for an eligible margin loan is ten business days 
except for transactions or netting sets for which paragraph 
(c)(4)(i)(C) of this section applies. When an FDIC-supervised 
institution calculates an own-estimates haircut on a TN-day 
holding period, which is different from the minimum holding period for 
the transaction type, the applicable haircut (HM) is 
calculated using the following square root of time formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.021


(1) TM equals 5 for repo-style transactions and 10 for 
eligible margin loans;
(2) TN equals the holding period used by the FDIC-
supervised institution to derive HN; and
(3) HN equals the haircut based on the holding period 
TN.
    (C) If the number of trades in a netting set exceeds 5,000 at any 
time during a quarter, an FDIC-supervised institution must calculate 
the haircut using a minimum holding period of twenty business days for 
the following quarter except in the calculation of the exposure amount 
for purposes of Sec.  324.35. If a netting set contains one or more 
trades involving illiquid collateral or an OTC derivative that cannot 
be easily replaced, an FDIC-supervised institution must calculate the 
haircut using a minimum holding period of twenty business days. If over 
the two previous quarters more than two margin disputes on a netting 
set have occurred that lasted more than the holding period, then the 
FDIC-supervised institution must calculate the haircut for transactions 
in that netting set on the basis of a holding period that is at least 
two times the minimum holding period for that netting set.
    (D) An FDIC-supervised institution is required to calculate its own 
internal estimates with inputs calibrated to historical data from a 
continuous 12-month period that reflects a period of significant 
financial stress appropriate to the security or category of securities.
    (E) An FDIC-supervised institution must have policies and 
procedures that describe how it determines the period of significant 
financial stress used to calculate the FDIC-supervised institution's 
own internal estimates for haircuts under this section and must be able 
to provide empirical support for the period used. The FDIC-supervised 
institution must obtain the prior approval of the FDIC for, and notify 
the FDIC if the FDIC-supervised institution makes any material changes 
to, these policies and procedures.
    (F) Nothing in this section prevents the FDIC from requiring an 
FDIC-supervised institution to use a different period of significant 
financial stress in the calculation of own internal estimates for 
haircuts.
    (G) An FDIC-supervised institution must update its data sets and 
calculate haircuts no less frequently than quarterly and must also 
reassess data sets and haircuts whenever market prices change 
materially.
    (ii) With respect to debt securities that are investment grade, an 
FDIC-supervised institution may calculate haircuts for categories of 
securities. For a category of securities, the FDIC-supervised 
institution must calculate the haircut on the basis of internal 
volatility estimates for securities in that category that are 
representative of the securities in that category that the FDIC-
supervised institution has lent, sold subject to repurchase, posted as 
collateral, borrowed, purchased subject to resale, or taken as 
collateral. In determining relevant categories, the FDIC-supervised 
institution must at a minimum take into account:
    (A) The type of issuer of the security;
    (B) The credit quality of the security;
    (C) The maturity of the security; and
    (D) The interest rate sensitivity of the security.
    (iii) With respect to debt securities that are not investment grade 
and equity securities, an FDIC-supervised institution must calculate a 
separate haircut for each individual security.
    (iv) Where an exposure or collateral (whether in the form of cash 
or securities) is denominated in a currency that differs from the 
settlement currency, the FDIC-supervised institution must calculate a 
separate currency mismatch haircut for its net position in each 
mismatched currency based on estimated volatilities of foreign exchange 
rates between the mismatched currency and the settlement currency.
    (v) An FDIC-supervised institution's own estimates of market price 
and foreign exchange rate volatilities may not take into account the 
correlations among securities and foreign exchange rates on either the 
exposure or collateral side of a transaction (or netting set) or the 
correlations among securities and foreign exchange rates between the 
exposure and collateral sides of the transaction (or netting set).

Risk-Weighted Assets for Unsettled Transactions


Sec.  324.38  Unsettled transactions.

    (a) Definitions. For purposes of this section:
    (1) Delivery-versus-payment (DvP) transaction means a securities or 
commodities transaction in which the buyer is obligated to make payment 
only if the seller has made delivery of the securities or commodities 
and the seller is obligated to deliver the securities or commodities 
only if the buyer has made payment.
    (2) Payment-versus-payment (PvP) transaction means a foreign 
exchange transaction in which each counterparty is obligated to make a 
final transfer of one or more currencies only if the other counterparty 
has made a final transfer of one or more currencies.
    (3) A transaction has a normal settlement period if the contractual 
settlement period for the transaction is equal to or less than the 
market standard for the instrument underlying the transaction and equal 
to or less than five business days.
    (4) Positive current exposure of an FDIC-supervised institution for 
a transaction is the difference between the transaction value at the 
agreed settlement price and the current market

[[Page 55509]]

price of the transaction, if the difference results in a credit 
exposure of the FDIC-supervised institution to the counterparty.
    (b) Scope. This section applies to all transactions involving 
securities, foreign exchange instruments, and commodities that have a 
risk of delayed settlement or delivery. This section does not apply to:
    (1) Cleared transactions that are marked-to-market daily and 
subject to daily receipt and payment of variation margin;
    (2) Repo-style transactions, including unsettled repo-style 
transactions;
    (3) One-way cash payments on OTC derivative contracts; or
    (4) Transactions with a contractual settlement period that is 
longer than the normal settlement period (which are treated as OTC 
derivative contracts as provided in Sec.  324.34).
    (c) System-wide failures. In the case of a system-wide failure of a 
settlement, clearing system or central counterparty, the FDIC may waive 
risk-based capital requirements for unsettled and failed transactions 
until the situation is rectified.
    (d) Delivery-versus-payment (DvP) and payment-versus-payment (PvP) 
transactions. An FDIC-supervised institution must hold risk-based 
capital against any DvP or PvP transaction with a normal settlement 
period if the FDIC-supervised institution's counterparty has not made 
delivery or payment within five business days after the settlement 
date. The FDIC-supervised institution must determine its risk-weighted 
asset amount for such a transaction by multiplying the positive current 
exposure of the transaction for the FDIC-supervised institution by the 
appropriate risk weight in Table 1 to Sec.  324.38.

    Table 1 to Sec.   324.38--Risk Weights for Unsettled DvP and PvP
                              Transactions
------------------------------------------------------------------------
                                                          Risk weight to
                                                           be applied to
  Number of business days after contractual settlement       positive
                          date                                current
                                                           exposure (in
                                                             percent)
------------------------------------------------------------------------
From 5 to 15............................................           100.0
From 16 to 30...........................................           625.0
From 31 to 45...........................................           937.5
46 or more..............................................         1,250.0
------------------------------------------------------------------------

    (e) Non-DvP/non-PvP (non-delivery-versus-payment/non-payment-
versus-payment) transactions. (1) An FDIC-supervised institution must 
hold risk-based capital against any non-DvP/non-PvP transaction with a 
normal settlement period if the FDIC-supervised institution has 
delivered cash, securities, commodities, or currencies to its 
counterparty but has not received its corresponding deliverables by the 
end of the same business day. The FDIC-supervised institution must 
continue to hold risk-based capital against the transaction until the 
FDIC-supervised institution has received its corresponding 
deliverables.
    (2) From the business day after the FDIC-supervised institution has 
made its delivery until five business days after the counterparty 
delivery is due, the FDIC-supervised institution must calculate the 
risk-weighted asset amount for the transaction by treating the current 
fair value of the deliverables owed to the FDIC-supervised institution 
as an exposure to the counterparty and using the applicable 
counterparty risk weight under Sec.  324.32.
    (3) If the FDIC-supervised institution has not received its 
deliverables by the fifth business day after counterparty delivery was 
due, the FDIC-supervised institution must assign a 1,250 percent risk 
weight to the current fair value of the deliverables owed to the FDIC-
supervised institution.
    (f) Total risk-weighted assets for unsettled transactions. Total 
risk-weighted assets for unsettled transactions is the sum of the risk-
weighted asset amounts of all DvP, PvP, and non-DvP/non-PvP 
transactions.


Sec. Sec.  324.39 through 324.40  [Reserved]

Risk-Weighted Assets for Securitization Exposures


Sec.  324.41  Operational requirements for securitization exposures.

    (a) Operational criteria for traditional securitizations. An FDIC-
supervised institution that transfers exposures it has originated or 
purchased to a securitization SPE or other third party in connection 
with a traditional securitization may exclude the exposures from the 
calculation of its risk-weighted assets only if each condition in this 
section is satisfied. An FDIC-supervised institution that meets these 
conditions must hold risk-based capital against any credit risk it 
retains in connection with the securitization. An FDIC-supervised 
institution that fails to meet these conditions must hold risk-based 
capital against the transferred exposures as if they had not been 
securitized and must deduct from common equity tier 1 capital any 
after-tax gain-on-sale resulting from the transaction. The conditions 
are:
    (1) The exposures are not reported on the FDIC-supervised 
institution's consolidated balance sheet under GAAP;
    (2) The FDIC-supervised institution has transferred to one or more 
third parties credit risk associated with the underlying exposures;
    (3) Any clean-up calls relating to the securitization are eligible 
clean-up calls; and
    (4) The securitization does not:
    (i) Include one or more underlying exposures in which the borrower 
is permitted to vary the drawn amount within an agreed limit under a 
line of credit; and
    (ii) Contain an early amortization provision.
    (b) Operational criteria for synthetic securitizations. For 
synthetic securitizations, an FDIC-supervised institution may recognize 
for risk-based capital purposes the use of a credit risk mitigant to 
hedge underlying exposures only if each condition in this paragraph is 
satisfied. An FDIC-supervised institution that meets these conditions 
must hold risk-based capital against any credit risk of the exposures 
it retains in connection with the synthetic securitization. An FDIC-
supervised institution that fails to meet these conditions or chooses 
not to recognize the credit risk mitigant for purposes of this section 
must instead hold risk-based capital against the underlying exposures 
as if they had not been synthetically securitized. The conditions are:
    (1) The credit risk mitigant is:
    (i) Financial collateral;
    (ii) A guarantee that meets all criteria as set forth in the 
definition of ``eligible guarantee'' in Sec.  324.2, except for the 
criteria in paragraph (3) of that definition; or
    (iii) A credit derivative that meets all criteria as set forth in 
the definition of ``eligible credit derivative'' in Sec.  324.2, except 
for the criteria in paragraph (3) of the definition of ``eligible 
guarantee'' in Sec.  324.2.
    (2) The FDIC-supervised institution transfers credit risk 
associated with the underlying exposures to one or more third parties, 
and the terms and conditions in the credit risk mitigants employed do 
not include provisions that:
    (i) Allow for the termination of the credit protection due to 
deterioration in the credit quality of the underlying exposures;
    (ii) Require the FDIC-supervised institution to alter or replace 
the underlying exposures to improve the credit quality of the 
underlying exposures;
    (iii) Increase the FDIC-supervised institution's cost of credit 
protection in response to deterioration in the credit quality of the 
underlying exposures;

[[Page 55510]]

    (iv) Increase the yield payable to parties other than the FDIC-
supervised institution in response to a deterioration in the credit 
quality of the underlying exposures; or
    (v) Provide for increases in a retained first loss position or 
credit enhancement provided by the FDIC-supervised institution after 
the inception of the securitization;
    (3) The FDIC-supervised institution obtains a well-reasoned opinion 
from legal counsel that confirms the enforceability of the credit risk 
mitigant in all relevant jurisdictions; and
    (4) Any clean-up calls relating to the securitization are eligible 
clean-up calls.
    (c) Due diligence requirements for securitization exposures. (1) 
Except for exposures that are deducted from common equity tier 1 
capital and exposures subject to Sec.  324.42(h), if an FDIC-supervised 
institution is unable to demonstrate to the satisfaction of the FDIC a 
comprehensive understanding of the features of a securitization 
exposure that would materially affect the performance of the exposure, 
the FDIC-supervised institution must assign the securitization exposure 
a risk weight of 1,250 percent. The FDIC-supervised institution's 
analysis must be commensurate with the complexity of the securitization 
exposure and the materiality of the exposure in relation to its 
capital.
    (2) An FDIC-supervised institution must demonstrate its 
comprehensive understanding of a securitization exposure under 
paragraph (c)(1) of this section, for each securitization exposure by:
    (i) Conducting an analysis of the risk characteristics of a 
securitization exposure prior to acquiring the exposure, and 
documenting such analysis within three business days after acquiring 
the exposure, considering:
    (A) Structural features of the securitization that would materially 
impact the performance of the exposure, for example, the contractual 
cash flow waterfall, waterfall-related triggers, credit enhancements, 
liquidity enhancements, fair value triggers, the performance of 
organizations that service the exposure, and deal-specific definitions 
of default;
    (B) Relevant information regarding the performance of the 
underlying credit exposure(s), for example, the percentage of loans 30, 
60, and 90 days past due; default rates; prepayment rates; loans in 
foreclosure; property types; occupancy; average credit score or other 
measures of creditworthiness; average LTV ratio; and industry and 
geographic diversification data on the underlying exposure(s);
    (C) Relevant market data of the securitization, for example, bid-
ask spread, most recent sales price and historic price volatility, 
trading volume, implied market rating, and size, depth and 
concentration level of the market for the securitization; and
    (D) For resecuritization exposures, performance information on the 
underlying securitization exposures, for example, the issuer name and 
credit quality, and the characteristics and performance of the 
exposures underlying the securitization exposures; and
    (ii) On an on-going basis (no less frequently than quarterly), 
evaluating, reviewing, and updating as appropriate the analysis 
required under paragraph (c)(1) of this section for each securitization 
exposure.


Sec.  324.42  Risk-weighted assets for securitization exposures.

    (a) Securitization risk weight approaches. Except as provided 
elsewhere in this section or in Sec.  324.41:
    (1) An FDIC-supervised institution must deduct from common equity 
tier 1 capital any after-tax gain-on-sale resulting from a 
securitization and apply a 1,250 percent risk weight to the portion of 
a CEIO that does not constitute after-tax gain-on-sale.
    (2) If a securitization exposure does not require deduction under 
paragraph (a)(1) of this section, an FDIC-supervised institution may 
assign a risk weight to the securitization exposure using the 
simplified supervisory formula approach (SSFA) in accordance with 
Sec. Sec.  324.43(a) through 324.43(d) and subject to the limitation 
under paragraph (e) of this section. Alternatively, an FDIC-supervised 
institution that is not subject to subpart F of this part may assign a 
risk weight to the securitization exposure using the gross-up approach 
in accordance with Sec.  324.43(e), provided, however, that such FDIC-
supervised institution must apply either the SSFA or the gross-up 
approach consistently across all of its securitization exposures, 
except as provided in paragraphs (a)(1), (a)(3), and (a)(4) of this 
section.
    (3) If a securitization exposure does not require deduction under 
paragraph (a)(1) of this section and the FDIC-supervised institution 
cannot, or chooses not to apply the SSFA or the gross-up approach to 
the exposure, the FDIC-supervised institution must assign a risk weight 
to the exposure as described in Sec.  324.44.
    (4) If a securitization exposure is a derivative contract (other 
than protection provided by an FDIC-supervised institution in the form 
of a credit derivative) that has a first priority claim on the cash 
flows from the underlying exposures (notwithstanding amounts due under 
interest rate or currency derivative contracts, fees due, or other 
similar payments), an FDIC-supervised institution may choose to set the 
risk-weighted asset amount of the exposure equal to the amount of the 
exposure as determined in paragraph (c) of this section.
    (b) Total risk-weighted assets for securitization exposures. An 
FDIC-supervised institution's total risk-weighted assets for 
securitization exposures equals the sum of the risk-weighted asset 
amount for securitization exposures that the FDIC-supervised 
institution risk weights under Sec. Sec.  324.41(c), 324.42(a)(1), and 
324.43, 324.44, or 324.45, and paragraphs (e) through (j) of this 
section, as applicable.
    (c) Exposure amount of a securitization exposure--(1) On-balance 
sheet securitization exposures. The exposure amount of an on-balance 
sheet securitization exposure (excluding an available-for-sale or held-
to-maturity security where the FDIC-supervised institution has made an 
AOCI opt-out election under Sec.  324.22(b)(2), a repo-style 
transaction, eligible margin loan, OTC derivative contract, or cleared 
transaction) is equal to the carrying value of the exposure.
    (2) On-balance sheet securitization exposures held by an FDIC-
supervised institution that has made an AOCI opt-out election. The 
exposure amount of an on-balance sheet securitization exposure that is 
an available-for-sale or held-to-maturity security held by an FDIC-
supervised institution that has made an AOCI opt-out election under 
Sec.  324.22(b)(2) is the FDIC-supervised institution's carrying value 
(including net accrued but unpaid interest and fees), less any net 
unrealized gains on the exposure and plus any net unrealized losses on 
the exposure.
    (3) Off-balance sheet securitization exposures. (i) Except as 
provided in paragraph (j) of this section, the exposure amount of an 
off-balance sheet securitization exposure that is not a repo-style 
transaction, eligible margin loan, cleared transaction (other than a 
credit derivative), or an OTC derivative contract (other than a credit 
derivative) is the notional amount of the exposure. For an off-balance 
sheet securitization exposure to an ABCP program, such as an eligible 
ABCP liquidity facility, the notional amount may be reduced to the 
maximum potential amount that the FDIC-supervised institution could be 
required to fund given the ABCP program's current underlying assets

[[Page 55511]]

(calculated without regard to the current credit quality of those 
assets).
    (ii) An FDIC-supervised institution must determine the exposure 
amount of an eligible ABCP liquidity facility for which the SSFA does 
not apply by multiplying the notional amount of the exposure by a CCF 
of 50 percent.
    (iii) An FDIC-supervised institution must determine the exposure 
amount of an eligible ABCP liquidity facility for which the SSFA 
applies by multiplying the notional amount of the exposure by a CCF of 
100 percent.
    (4) Repo-style transactions, eligible margin loans, and derivative 
contracts. The exposure amount of a securitization exposure that is a 
repo-style transaction, eligible margin loan, or derivative contract 
(other than a credit derivative) is the exposure amount of the 
transaction as calculated under Sec.  324.34 or Sec.  324.37, as 
applicable.
    (d) Overlapping exposures. If an FDIC-supervised institution has 
multiple securitization exposures that provide duplicative coverage to 
the underlying exposures of a securitization (such as when an FDIC-
supervised institution provides a program-wide credit enhancement and 
multiple pool-specific liquidity facilities to an ABCP program), the 
FDIC-supervised institution is not required to hold duplicative risk-
based capital against the overlapping position. Instead, the FDIC-
supervised institution may apply to the overlapping position the 
applicable risk-based capital treatment that results in the highest 
risk-based capital requirement.
    (e) Implicit support. If an FDIC-supervised institution provides 
support to a securitization in excess of the FDIC-supervised 
institution's contractual obligation to provide credit support to the 
securitization (implicit support):
    (1) The FDIC-supervised institution must include in risk-weighted 
assets all of the underlying exposures associated with the 
securitization as if the exposures had not been securitized and must 
deduct from common equity tier 1 capital any after-tax gain-on-sale 
resulting from the securitization; and
    (2) The FDIC-supervised institution must disclose publicly:
    (i) That it has provided implicit support to the securitization; 
and
    (ii) The risk-based capital impact to the FDIC-supervised 
institution of providing such implicit support.
    (f) Undrawn portion of a servicer cash advance facility. (1) 
Notwithstanding any other provision of this subpart, an FDIC-supervised 
institution that is a servicer under an eligible servicer cash advance 
facility is not required to hold risk-based capital against potential 
future cash advance payments that it may be required to provide under 
the contract governing the facility.
    (2) For an FDIC-supervised institution that acts as a servicer, the 
exposure amount for a servicer cash advance facility that is not an 
eligible servicer cash advance facility is equal to the amount of all 
potential future cash advance payments that the FDIC-supervised 
institution may be contractually required to provide during the 
subsequent 12 month period under the contract governing the facility.
    (g) Interest-only mortgage-backed securities. Regardless of any 
other provisions in this subpart, the risk weight for a non-credit-
enhancing interest-only mortgage-backed security may not be less than 
100 percent.
    (h) Small-business loans and leases on personal property 
transferred with retained contractual exposure. (1) Regardless of any 
other provision of this subpart, an FDIC-supervised institution that 
has transferred small-business loans and leases on personal property 
(small-business obligations) with recourse must include in risk-
weighted assets only its contractual exposure to the small-business 
obligations if all the following conditions are met:
    (i) The transaction must be treated as a sale under GAAP.
    (ii) The FDIC-supervised institution establishes and maintains, 
pursuant to GAAP, a non-capital reserve sufficient to meet the FDIC-
supervised institution's reasonably estimated liability under the 
contractual obligation.
    (iii) The small-business obligations are to businesses that meet 
the criteria for a small-business concern established by the Small 
Business Administration under section 3(a) of the Small Business Act 
(15 U.S.C. 632 et seq.).
    (iv) The FDIC-supervised institution is well capitalized, as 
defined in subpart H of this part. For purposes of determining whether 
an FDIC-supervised institution is well capitalized for purposes of this 
paragraph, the FDIC-supervised institution's capital ratios must be 
calculated without regard to the capital treatment for transfers of 
small-business obligations under this paragraph.
    (2) The total outstanding amount of contractual exposure retained 
by an FDIC-supervised institution on transfers of small-business 
obligations receiving the capital treatment specified in paragraph 
(h)(1) of this section cannot exceed 15 percent of the FDIC-supervised 
institution's total capital.
    (3) If an FDIC-supervised institution ceases to be well capitalized 
under subpart H of this part or exceeds the 15 percent capital 
limitation provided in paragraph (h)(2) of this section, the capital 
treatment under paragraph (h)(1) of this section will continue to apply 
to any transfers of small-business obligations with retained 
contractual exposure that occurred during the time that the FDIC-
supervised institution was well capitalized and did not exceed the 
capital limit.
    (4) The risk-based capital ratios of the FDIC-supervised 
institution must be calculated without regard to the capital treatment 
for transfers of small-business obligations specified in paragraph 
(h)(1) of this section for purposes of:
    (i) Determining whether an FDIC-supervised institution is 
adequately capitalized, undercapitalized, significantly 
undercapitalized, or critically undercapitalized under subpart H of 
this part; and
    (ii) Reclassifying a well-capitalized FDIC-supervised institution 
to adequately capitalized and requiring an adequately capitalized FDIC-
supervised institution to comply with certain mandatory or 
discretionary supervisory actions as if the FDIC-supervised institution 
were in the next lower prompt-corrective-action category.
    (i) Nth-to-default credit derivatives--(1) Protection provider. An 
FDIC-supervised institution may assign a risk weight using the SSFA in 
Sec.  324.43 to an nth-to-default credit derivative in accordance with 
this paragraph. An FDIC-supervised institution must determine its 
exposure in the nth-to-default credit derivative as the largest 
notional amount of all the underlying exposures.
    (2) For purposes of determining the risk weight for an nth-to-
default credit derivative using the SSFA, the FDIC-supervised 
institution must calculate the attachment point and detachment point of 
its exposure as follows:
    (i) The attachment point (parameter A) is the ratio of the sum of 
the notional amounts of all underlying exposures that are subordinated 
to the FDIC-supervised institution's exposure to the total notional 
amount of all underlying exposures. The ratio is expressed as a decimal 
value between zero and one. In the case of a first-to-default credit 
derivative, there are no underlying exposures that are subordinated to 
the FDIC-supervised institution's exposure. In the case of a second-or-
subsequent-to-default credit derivative, the smallest (n-1) notional 
amounts of the underlying exposure(s) are subordinated to the FDIC-
supervised institution's exposure.
    (ii) The detachment point (parameter D) equals the sum of parameter 
A plus the ratio of the notional amount of the FDIC-supervised 
institution's exposure

[[Page 55512]]

in the nth-to-default credit derivative to the total notional amount of 
all underlying exposures. The ratio is expressed as a decimal value 
between zero and one.
    (3) An FDIC-supervised institution that does not use the SSFA to 
determine a risk weight for its nth-to-default credit derivative must 
assign a risk weight of 1,250 percent to the exposure.
    (4) Protection purchaser--(i) First-to-default credit derivatives. 
An FDIC-supervised institution that obtains credit protection on a 
group of underlying exposures through a first-to-default credit 
derivative that meets the rules of recognition of Sec.  324.36(b) must 
determine its risk-based capital requirement for the underlying 
exposures as if the FDIC-supervised institution synthetically 
securitized the underlying exposure with the smallest risk-weighted 
asset amount and had obtained no credit risk mitigant on the other 
underlying exposures. An FDIC-supervised institution must calculate a 
risk-based capital requirement for counterparty credit risk according 
to Sec.  324.34 for a first-to-default credit derivative that does not 
meet the rules of recognition of Sec.  324.36(b).
    (ii) Second-or-subsequent-to-default credit derivatives. (A) An 
FDIC-supervised institution that obtains credit protection on a group 
of underlying exposures through a nth-to-default credit derivative that 
meets the rules of recognition of Sec.  324.36(b) (other than a first-
to-default credit derivative) may recognize the credit risk mitigation 
benefits of the derivative only if:
    (1) The FDIC-supervised institution also has obtained credit 
protection on the same underlying exposures in the form of first-
through-(n-1)-to-default credit derivatives; or
    (2) If n-1 of the underlying exposures have already defaulted.
    (B) If an FDIC-supervised institution satisfies the requirements of 
paragraph (i)(4)(ii)(A) of this section, the FDIC-supervised 
institution must determine its risk-based capital requirement for the 
underlying exposures as if the FDIC-supervised institution had only 
synthetically securitized the underlying exposure with the nth smallest 
risk-weighted asset amount and had obtained no credit risk mitigant on 
the other underlying exposures.
    (C) An FDIC-supervised institution must calculate a risk-based 
capital requirement for counterparty credit risk according to Sec.  
324.34 for a nth-to-default credit derivative that does not meet the 
rules of recognition of Sec.  324.36(b).
    (j) Guarantees and credit derivatives other than nth-to-default 
credit derivatives--(1) Protection provider. For a guarantee or credit 
derivative (other than an nth-to-default credit derivative) provided by 
an FDIC-supervised institution that covers the full amount or a pro 
rata share of a securitization exposure's principal and interest, the 
FDIC-supervised institution must risk weight the guarantee or credit 
derivative as if it holds the portion of the reference exposure covered 
by the guarantee or credit derivative.
    (2) Protection purchaser. (i) An FDIC-supervised institution that 
purchases a guarantee or OTC credit derivative (other than an nth-to-
default credit derivative) that is recognized under Sec.  324.45 as a 
credit risk mitigant (including via collateral recognized under Sec.  
324.37) is not required to compute a separate counterparty credit risk 
capital requirement under Sec.  324.31, in accordance with Sec.  
324.34(c).
    (ii) If an FDIC-supervised institution cannot, or chooses not to, 
recognize a purchased credit derivative as a credit risk mitigant under 
Sec.  324.45, the FDIC-supervised institution must determine the 
exposure amount of the credit derivative under Sec.  324.34.
    (A) If the FDIC-supervised institution purchases credit protection 
from a counterparty that is not a securitization SPE, the FDIC-
supervised institution must determine the risk weight for the exposure 
according to general risk weights under Sec.  324.32.
    (B) If the FDIC-supervised institution purchases the credit 
protection from a counterparty that is a securitization SPE, the FDIC-
supervised institution must determine the risk weight for the exposure 
according to section Sec.  324.42, including Sec.  324.42(a)(4) for a 
credit derivative that has a first priority claim on the cash flows 
from the underlying exposures of the securitization SPE 
(notwithstanding amounts due under interest rate or currency derivative 
contracts, fees due, or other similar payments).


Sec.  324.43  Simplified supervisory formula approach (SSFA) and the 
gross-up approach.

    (a) General requirements for the SSFA. To use the SSFA to determine 
the risk weight for a securitization exposure, an FDIC-supervised 
institution must have data that enables it to assign accurately the 
parameters described in paragraph (b) of this section. Data used to 
assign the parameters described in paragraph (b) of this section must 
be the most currently available data; if the contracts governing the 
underlying exposures of the securitization require payments on a 
monthly or quarterly basis, the data used to assign the parameters 
described in paragraph (b) of this section must be no more than 91 
calendar days old. An FDIC-supervised institution that does not have 
the appropriate data to assign the parameters described in paragraph 
(b) of this section must assign a risk weight of 1,250 percent to the 
exposure.
    (b) SSFA parameters. To calculate the risk weight for a 
securitization exposure using the SSFA, an FDIC-supervised institution 
must have accurate information on the following five inputs to the SSFA 
calculation:
    (1) KG is the weighted-average (with unpaid principal 
used as the weight for each exposure) total capital requirement of the 
underlying exposures calculated using this subpart. KG is 
expressed as a decimal value between zero and one (that is, an average 
risk weight of 100 percent represents a value of KG equal to 
0.08).
    (2) Parameter W is expressed as a decimal value between zero and 
one. Parameter W is the ratio of the sum of the dollar amounts of any 
underlying exposures of the securitization that meet any of the 
criteria as set forth in paragraphs (b)(2)(i) through (vi) of this 
section to the balance, measured in dollars, of underlying exposures:
    (i) Ninety days or more past due;
    (ii) Subject to a bankruptcy or insolvency proceeding;
    (iii) In the process of foreclosure;
    (iv) Held as real estate owned;
    (v) Has contractually deferred payments for 90 days or more, other 
than principal or interest payments deferred on:
    (A) Federally-guaranteed student loans, in accordance with the 
terms of those guarantee programs; or
    (B) Consumer loans, including non-federally-guaranteed student 
loans, provided that such payments are deferred pursuant to provisions 
included in the contract at the time funds are disbursed that provide 
for period(s) of deferral that are not initiated based on changes in 
the creditworthiness of the borrower; or
    (vi) Is in default.
    (3) Parameter A is the attachment point for the exposure, which 
represents the threshold at which credit losses will first be allocated 
to the exposure. Except as provided in Sec.  324.42(i) for n\th\-to-
default credit derivatives, parameter A equals the ratio of the current 
dollar amount of underlying exposures that are subordinated to the 
exposure of the FDIC-supervised institution to the current dollar 
amount of underlying exposures. Any reserve account funded by the 
accumulated cash flows from the underlying exposures that is 
subordinated to the FDIC-supervised institution's securitization 
exposure

[[Page 55513]]

may be included in the calculation of parameter A to the extent that 
cash is present in the account. Parameter A is expressed as a decimal 
value between zero and one.
    (4) Parameter D is the detachment point for the exposure, which 
represents the threshold at which credit losses of principal allocated 
to the exposure would result in a total loss of principal. Except as 
provided in Sec.  324.42(i) for n\th\-to-default credit derivatives, 
parameter D equals parameter A plus the ratio of the current dollar 
amount of the securitization exposures that are pari passu with the 
exposure (that is, have equal seniority with respect to credit risk) to 
the current dollar amount of the underlying exposures. Parameter D is 
expressed as a decimal value between zero and one.
    (5) A supervisory calibration parameter, p, is equal to 0.5 for 
securitization exposures that are not resecuritization exposures and 
equal to 1.5 for resecuritization exposures.
    (c) Mechanics of the SSFA. KG and W are used to 
calculate KA, the augmented value of KG, which 
reflects the observed credit quality of the underlying exposures. 
KA is defined in paragraph (d) of this section. The values 
of parameters A and D, relative to KA determine the risk 
weight assigned to a securitization exposure as described in paragraph 
(d) of this section. The risk weight assigned to a securitization 
exposure, or portion of a securitization exposure, as appropriate, is 
the larger of the risk weight determined in accordance with this 
paragraph or paragraph (d) of this section and a risk weight of 20 
percent.
    (1) When the detachment point, parameter D, for a securitization 
exposure is less than or equal to KA, the exposure must be 
assigned a risk weight of 1,250 percent.
    (2) When the attachment point, parameter A, for a securitization 
exposure is greater than or equal to KA, the FDIC-supervised 
institution must calculate the risk weight in accordance with paragraph 
(d) of this section.
    (3) When A is less than KA and D is greater than 
KA, the risk weight is a weighted-average of 1,250 percent 
and 1,250 percent times KSSFA calculated in accordance with 
paragraph (d) of this section. For the purpose of this weighted-average 
calculation:
BILLING CODE 6714-01-P

[[Page 55514]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.022

BILLING CODE 6714-01-C
    (e) Gross-up approach--(1) Applicability. An FDIC-supervised 
institution that is not subject to subpart F of this part may apply the 
gross-up approach set forth in this section instead of the SSFA to 
determine the risk weight of its securitization exposures, provided 
that it applies the gross-up approach to all of its securitization 
exposures, except as otherwise provided for certain securitization 
exposures in Sec. Sec.  324.44 and 324.45.
    (2) To use the gross-up approach, an FDIC-supervised institution 
must calculate the following four inputs:
    (i) Pro rata share, which is the par value of the FDIC-supervised 
institution's securitization exposure as a percent of the par value of 
the tranche in which the securitization exposure resides;
    (ii) Enhanced amount, which is the par value of tranches that are 
more senior to the tranche in which the FDIC-supervised institution's 
securitization resides;
    (iii) Exposure amount of the FDIC-supervised institution's 
securitization exposure calculated under Sec.  324.42(c); and
    (iv) Risk weight, which is the weighted-average risk weight of 
underlying exposures of the securitization as calculated under this 
subpart.
    (3) Credit equivalent amount. The credit equivalent amount of a 
securitization exposure under this section equals the sum of:

[[Page 55515]]

    (i) The exposure amount of the FDIC-supervised institution's 
securitization exposure and
    (ii) The pro rata share multiplied by the enhanced amount, each 
calculated in accordance with paragraph (e)(2) of this section.
    (4) Risk-weighted assets. To calculate risk-weighted assets for a 
securitization exposure under the gross-up approach, an FDIC-supervised 
institution must apply the risk weight required under paragraph (e)(2) 
of this section to the credit equivalent amount calculated in paragraph 
(e)(3) of this section.
    (f) Limitations. Notwithstanding any other provision of this 
section, an FDIC-supervised institution must assign a risk weight of 
not less than 20 percent to a securitization exposure.


Sec.  324.44  Securitization exposures to which the SSFA and gross-up 
approach do not apply.

    (a) General Requirement. An FDIC-supervised institution must assign 
a 1,250 percent risk weight to all securitization exposures to which 
the FDIC-supervised institution does not apply the SSFA or the gross-up 
approach under Sec.  324.43, except as set forth in this section.
    (b) Eligible ABCP liquidity facilities. An FDIC-supervised 
institution may determine the risk-weighted asset amount of an eligible 
ABCP liquidity facility by multiplying the exposure amount by the 
highest risk weight applicable to any of the individual underlying 
exposures covered by the facility.
    (c) A securitization exposure in a second loss position or better 
to an ABCP program--(1) Risk weighting. An FDIC-supervised institution 
may determine the risk-weighted asset amount of a securitization 
exposure that is in a second loss position or better to an ABCP program 
that meets the requirements of paragraph (c)(2) of this section by 
multiplying the exposure amount by the higher of the following risk 
weights:
    (i) 100 percent; and
    (ii) The highest risk weight applicable to any of the individual 
underlying exposures of the ABCP program.
    (2) Requirements. (i) The exposure is not an eligible ABCP 
liquidity facility;
    (ii) The exposure must be economically in a second loss position or 
better, and the first loss position must provide significant credit 
protection to the second loss position;
    (iii) The exposure qualifies as investment grade; and
    (iv) The FDIC-supervised institution holding the exposure must not 
retain or provide protection to the first loss position.


Sec.  324.45  Recognition of credit risk mitigants for securitization 
exposures.

    (a) General. (1) An originating FDIC-supervised institution that 
has obtained a credit risk mitigant to hedge its exposure to a 
synthetic or traditional securitization that satisfies the operational 
criteria provided in Sec.  324.41 may recognize the credit risk 
mitigant under Sec. Sec.  324.36 or 324.37, but only as provided in 
this section.
    (2) An investing FDIC-supervised institution that has obtained a 
credit risk mitigant to hedge a securitization exposure may recognize 
the credit risk mitigant under Sec. Sec.  324.36 or 324.37, but only as 
provided in this section.
    (b) Mismatches. An FDIC-supervised institution must make any 
applicable adjustment to the protection amount of an eligible guarantee 
or credit derivative as required in Sec.  324.36(d), (e), and (f) for 
any hedged securitization exposure. In the context of a synthetic 
securitization, when an eligible guarantee or eligible credit 
derivative covers multiple hedged exposures that have different 
residual maturities, the FDIC-supervised institution must use the 
longest residual maturity of any of the hedged exposures as the 
residual maturity of all hedged exposures.


Sec. Sec.  324.46 through 324.50   [Reserved]

Risk-Weighted Assets for Equity Exposures


Sec.  324.51  Introduction and exposure measurement.

    (a) General. (1) To calculate its risk-weighted asset amounts for 
equity exposures that are not equity exposures to an investment fund, 
an FDIC-supervised institution must use the Simple Risk-Weight Approach 
(SRWA) provided in Sec.  324.52. An FDIC-supervised institution must 
use the look-through approaches provided in Sec.  324.53 to calculate 
its risk-weighted asset amounts for equity exposures to investment 
funds.
    (2) An FDIC-supervised institution must treat an investment in a 
separate account (as defined in Sec.  324.2) as if it were an equity 
exposure to an investment fund as provided in Sec.  324.53.
    (3) Stable value protection. (i) Stable value protection means a 
contract where the provider of the contract is obligated to pay:
    (A) The policy owner of a separate account an amount equal to the 
shortfall between the fair value and cost basis of the separate account 
when the policy owner of the separate account surrenders the policy, or
    (B) The beneficiary of the contract an amount equal to the 
shortfall between the fair value and book value of a specified 
portfolio of assets.
    (ii) An FDIC-supervised institution that purchases stable value 
protection on its investment in a separate account must treat the 
portion of the carrying value of its investment in the separate account 
attributable to the stable value protection as an exposure to the 
provider of the protection and the remaining portion of the carrying 
value of its separate account as an equity exposure to an investment 
fund.
    (iii) An FDIC-supervised institution that provides stable value 
protection must treat the exposure as an equity derivative with an 
adjusted carrying value determined as the sum of paragraphs (b)(1) and 
(3) of this section.
    (b) Adjusted carrying value. For purposes of Sec. Sec.  324.51 
through 324.53, the adjusted carrying value of an equity exposure is:
    (1) For the on-balance sheet component of an equity exposure (other 
than an equity exposure that is classified as available-for-sale where 
the FDIC-supervised institution has made an AOCI opt-out election under 
Sec.  324.22(b)(2)), the FDIC-supervised institution's carrying value 
of the exposure;
    (2) For the on-balance sheet component of an equity exposure that 
is classified as available-for-sale where the FDIC-supervised 
institution has made an AOCI opt-out election under Sec.  324.22(b)(2), 
the FDIC-supervised institution's carrying value of the exposure less 
any net unrealized gains on the exposure that are reflected in such 
carrying value but excluded from the FDIC-supervised institution's 
regulatory capital components;
    (3) For the off-balance sheet component of an equity exposure that 
is not an equity commitment, the effective notional principal amount of 
the exposure, the size of which is equivalent to a hypothetical on-
balance sheet position in the underlying equity instrument that would 
evidence the same change in fair value (measured in dollars) given a 
small change in the price of the underlying equity instrument, minus 
the adjusted carrying value of the on-balance sheet component of the 
exposure as calculated in paragraph (b)(1) of this section; and
    (4) For a commitment to acquire an equity exposure (an equity 
commitment), the effective notional principal amount of the exposure is 
multiplied by the following conversion factors (CFs):
    (i) Conditional equity commitments with an original maturity of one 
year or less receive a CF of 20 percent.

[[Page 55516]]

    (ii) Conditional equity commitments with an original maturity of 
over one year receive a CF of 50 percent.
    (iii) Unconditional equity commitments receive a CF of 100 percent.


Sec.  324.52  Simple risk-weight approach (SRWA).

    (a) General. Under the SRWA, an FDIC-supervised institution's total 
risk-weighted assets for equity exposures equals the sum of the risk-
weighted asset amounts for each of the FDIC-supervised institution's 
individual equity exposures (other than equity exposures to an 
investment fund) as determined under this section and the risk-weighted 
asset amounts for each of the FDIC-supervised institution's individual 
equity exposures to an investment fund as determined under Sec.  
324.53.
    (b) SRWA computation for individual equity exposures. An FDIC-
supervised institution must determine the risk-weighted asset amount 
for an individual equity exposure (other than an equity exposure to an 
investment fund) by multiplying the adjusted carrying value of the 
equity exposure or the effective portion and ineffective portion of a 
hedge pair (as defined in paragraph (c) of this section) by the lowest 
applicable risk weight in this paragraph (b).
    (1) Zero percent risk weight equity exposures. An equity exposure 
to a sovereign, the Bank for International Settlements, the European 
Central Bank, the European Commission, the International Monetary Fund, 
an MDB, and any other entity whose credit exposures receive a zero 
percent risk weight under Sec.  324.32 may be assigned a zero percent 
risk weight.
    (2) 20 percent risk weight equity exposures. An equity exposure to 
a PSE, Federal Home Loan Bank or the Federal Agricultural Mortgage 
Corporation (Farmer Mac) must be assigned a 20 percent risk weight.
    (3) 100 percent risk weight equity exposures. The equity exposures 
set forth in this paragraph (b)(3) must be assigned a 100 percent risk 
weight.
    (i) Community development equity exposures. An equity exposure that 
qualifies as a community development investment under section 24 
(Eleventh) of the National Bank Act, excluding equity exposures to an 
unconsolidated small business investment company and equity exposures 
held through a consolidated small business investment company described 
in section 302 of the Small Business Investment Act.
    (ii) Effective portion of hedge pairs. The effective portion of a 
hedge pair.
    (iii) Non-significant equity exposures. Equity exposures, excluding 
significant investments in the capital of an unconsolidated financial 
institution in the form of common stock and exposures to an investment 
firm that would meet the definition of a traditional securitization 
were it not for the application of paragraph (8) of that definition in 
Sec.  324.2 and has greater than immaterial leverage, to the extent 
that the aggregate adjusted carrying value of the exposures does not 
exceed 10 percent of the FDIC-supervised institution's total capital.
    (A) To compute the aggregate adjusted carrying value of an FDIC-
supervised institution's equity exposures for purposes of this section, 
the FDIC-supervised institution may exclude equity exposures described 
in paragraphs (b)(1), (b)(2), (b)(3)(i), and (b)(3)(ii) of this 
section, the equity exposure in a hedge pair with the smaller adjusted 
carrying value, and a proportion of each equity exposure to an 
investment fund equal to the proportion of the assets of the investment 
fund that are not equity exposures or that meet the criterion of 
paragraph (b)(3)(i) of this section. If an FDIC-supervised institution 
does not know the actual holdings of the investment fund, the FDIC-
supervised institution may calculate the proportion of the assets of 
the fund that are not equity exposures based on the terms of the 
prospectus, partnership agreement, or similar contract that defines the 
fund's permissible investments. If the sum of the investment limits for 
all exposure classes within the fund exceeds 100 percent, the FDIC-
supervised institution must assume for purposes of this section that 
the investment fund invests to the maximum extent possible in equity 
exposures.
    (B) When determining which of an FDIC-supervised institution's 
equity exposures qualify for a 100 percent risk weight under this 
paragraph (b), an FDIC-supervised institution first must include equity 
exposures to unconsolidated small business investment companies or held 
through consolidated small business investment companies described in 
section 302 of the Small Business Investment Act, then must include 
publicly traded equity exposures (including those held indirectly 
through investment funds), and then must include non-publicly traded 
equity exposures (including those held indirectly through investment 
funds).
    (4) 250 percent risk weight equity exposures. Significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock that are not deducted from capital pursuant to 
Sec.  324.22(d) are assigned a 250 percent risk weight.
    (5) 300 percent risk weight equity exposures. A publicly traded 
equity exposure (other than an equity exposure described in paragraph 
(b)(7) of this section and including the ineffective portion of a hedge 
pair) must be assigned a 300 percent risk weight.
    (6) 400 percent risk weight equity exposures. An equity exposure 
(other than an equity exposure described in paragraph (b)(7) of this 
section) that is not publicly traded must be assigned a 400 percent 
risk weight.
    (7) 600 percent risk weight equity exposures. An equity exposure to 
an investment firm must be assigned a 600 percent risk weight, provided 
that the investment firm:
    (i) Would meet the definition of a traditional securitization were 
it not for the application of paragraph (8) of that definition; and
    (ii) Has greater than immaterial leverage.
    (c) Hedge transactions--(1) Hedge pair. A hedge pair is two equity 
exposures that form an effective hedge so long as each equity exposure 
is publicly traded or has a return that is primarily based on a 
publicly traded equity exposure.
    (2) Effective hedge. Two equity exposures form an effective hedge 
if the exposures either have the same remaining maturity or each has a 
remaining maturity of at least three months; the hedge relationship is 
formally documented in a prospective manner (that is, before the FDIC-
supervised institution acquires at least one of the equity exposures); 
the documentation specifies the measure of effectiveness (E) the FDIC-
supervised institution will use for the hedge relationship throughout 
the life of the transaction; and the hedge relationship has an E 
greater than or equal to 0.8. An FDIC-supervised institution must 
measure E at least quarterly and must use one of three alternative 
measures of E as set forth in this paragraph (c).
    (i) Under the dollar-offset method of measuring effectiveness, the 
FDIC-supervised institution must determine the ratio of value change 
(RVC). The RVC is the ratio of the cumulative sum of the changes in 
value of one equity exposure to the cumulative sum of the changes in 
the value of the other equity exposure. If RVC is positive, the hedge 
is not effective and E equals 0. If RVC is negative and greater than or 
equal to -1 (that is, between zero and -1), then E equals the absolute 
value of RVC. If RVC is negative and less than -1, then E equals 2 plus 
RVC.

[[Page 55517]]

    (ii) Under the variability-reduction method of measuring 
effectiveness:
[GRAPHIC] [TIFF OMITTED] TR10SE13.023

    (iii) Under the regression method of measuring effectiveness, E 
equals the coefficient of determination of a regression in which the 
change in value of one exposure in a hedge pair is the dependent 
variable and the change in value of the other exposure in a hedge pair 
is the independent variable. However, if the estimated regression 
coefficient is positive, then E equals zero.
    (3) The effective portion of a hedge pair is E multiplied by the 
greater of the adjusted carrying values of the equity exposures forming 
a hedge pair.
    (4) The ineffective portion of a hedge pair is (1-E) multiplied by 
the greater of the adjusted carrying values of the equity exposures 
forming a hedge pair.


Sec.  324.53  Equity exposures to investment funds.

    (a) Available approaches. (1) Unless the exposure meets the 
requirements for a community development equity exposure under Sec.  
324.52(b)(3)(i), an FDIC-supervised institution must determine the 
risk-weighted asset amount of an equity exposure to an investment fund 
under the full look-through approach described in paragraph (b) of this 
section, the simple modified look-through approach described in 
paragraph (c) of this section, or the alterative modified look-through 
approach described paragraph (d) of this section, provided, however, 
that the minimum risk weight that may be assigned to an equity exposure 
under this section is 20 percent.
    (2) The risk-weighted asset amount of an equity exposure to an 
investment fund that meets the requirements for a community development 
equity exposure in Sec.  324.52(b)(3)(i) is its adjusted carrying 
value.
    (3) If an equity exposure to an investment fund is part of a hedge 
pair and the FDIC-supervised institution does not use the full look-
through approach, the FDIC-supervised institution must use the 
ineffective portion of the hedge pair as determined under Sec.  
324.52(c) as the adjusted carrying value for the equity exposure to the 
investment fund. The risk-weighted asset amount of the effective 
portion of the hedge pair is equal to its adjusted carrying value.
    (b) Full look-through approach. An FDIC-supervised institution that 
is able to calculate a risk-weighted asset amount for its proportional 
ownership share of each exposure held by the investment fund (as 
calculated under this subpart as if the proportional ownership share of 
the adjusted carrying value of each exposure were held directly by the 
FDIC-supervised institution) may set the risk-weighted asset amount of 
the FDIC-supervised institution's exposure to the fund equal to the 
product of:
    (1) The aggregate risk-weighted asset amounts of the exposures held 
by the fund as if they were held directly by the FDIC-supervised 
institution; and
    (2) The FDIC-supervised institution's proportional ownership share 
of the fund.
    (c) Simple modified look-through approach. Under the simple 
modified look-through approach, the risk-weighted asset amount for an 
FDIC-supervised institution's equity exposure to an investment fund 
equals the adjusted carrying value of the equity exposure multiplied by 
the highest risk weight that applies to any exposure the fund is 
permitted to hold under the prospectus, partnership agreement, or 
similar agreement that defines the fund's permissible investments 
(excluding derivative contracts that are used for hedging rather than 
speculative purposes and that do not constitute a material portion of 
the fund's exposures).
    (d) Alternative modified look-through approach. Under the 
alternative modified look-through approach, an FDIC-supervised 
institution may assign the adjusted carrying value of an equity 
exposure to an investment fund on a pro rata basis to different risk 
weight categories under this subpart based on the investment limits in 
the fund's prospectus, partnership agreement, or similar contract that 
defines the fund's permissible investments. The risk-weighted asset 
amount for the FDIC-supervised institution's equity exposure to the 
investment fund equals the sum of each portion of the adjusted carrying 
value assigned to an exposure type multiplied by the applicable risk 
weight under this subpart. If the sum of the investment limits for all 
exposure types within the fund exceeds 100 percent, the FDIC-supervised 
institution must assume that the fund invests to the maximum extent 
permitted under its investment limits in the exposure type with the 
highest applicable risk weight under this subpart and continues to make 
investments in order of the exposure type with the next highest 
applicable risk weight under this subpart until the maximum total 
investment level is reached. If more than one exposure type applies to 
an exposure, the FDIC-supervised institution must use the highest 
applicable risk weight. An FDIC-supervised institution may exclude 
derivative contracts held by the fund that are used for hedging rather 
than for speculative purposes and do not constitute a material portion 
of the fund's exposures.

[[Page 55518]]

Sec. Sec.  324.54 through 324.60   [Reserved]

Disclosures


Sec.  324.61  Purpose and scope.

    Sections 324.61-324.63 of this subpart establish public disclosure 
requirements related to the capital requirements described in subpart B 
of this part for an FDIC-supervised institution with total consolidated 
assets of $50 billion or more as reported on the FDIC-supervised 
institution's most recent year-end Call Report that is not an advanced 
approaches FDIC-supervised institution making public disclosures 
pursuant to Sec.  324.172. An advanced approaches FDIC-supervised 
institution that has not received approval from the FDIC to exit 
parallel run pursuant to Sec.  324.121(d) is subject to the disclosure 
requirements described in Sec. Sec.  324.62 and 324.63. Such an FDIC-
supervised institution must comply with Sec.  324.62 unless it is a 
consolidated subsidiary of a bank holding company, savings and loan 
holding company, or depository institution that is subject to these 
disclosure requirements or a subsidiary of a non-U.S. banking 
organization that is subject to comparable public disclosure 
requirements in its home jurisdiction. For purposes of this section, 
total consolidated assets are determined based on the average of the 
FDIC-supervised institution's total consolidated assets in the four 
most recent quarters as reported on the Call Report; or the average of 
the FDIC-supervised institution's total consolidated assets in the most 
recent consecutive quarters as reported quarterly on the FDIC-
supervised institution's Call Report if the FDIC-supervised institution 
has not filed such a report for each of the most recent four quarters.


Sec.  324.62  Disclosure requirements.

    (a) An FDIC-supervised institution described in Sec.  324.61 must 
provide timely public disclosures each calendar quarter of the 
information in the applicable tables in Sec.  324.63. If a significant 
change occurs, such that the most recent reported amounts are no longer 
reflective of the FDIC-supervised institution's capital adequacy and 
risk profile, then a brief discussion of this change and its likely 
impact must be disclosed as soon as practicable thereafter. Qualitative 
disclosures that typically do not change each quarter (for example, a 
general summary of the FDIC-supervised institution's risk management 
objectives and policies, reporting system, and definitions) may be 
disclosed annually after the end of the fourth calendar quarter, 
provided that any significant changes are disclosed in the interim. The 
FDIC-supervised institution's management may provide all of the 
disclosures required by Sec. Sec.  324.61 through 324.63 in one place 
on the FDIC-supervised institution's public Web site or may provide the 
disclosures in more than one public financial report or other 
regulatory reports, provided that the FDIC-supervised institution 
publicly provides a summary table specifically indicating the 
location(s) of all such disclosures.
    (b) An FDIC-supervised institution described in Sec.  324.61 must 
have a formal disclosure policy approved by the board of directors that 
addresses its approach for determining the disclosures it makes. The 
policy must address the associated internal controls and disclosure 
controls and procedures. The board of directors and senior management 
are responsible for establishing and maintaining an effective internal 
control structure over financial reporting, including the disclosures 
required by this subpart, and must ensure that appropriate review of 
the disclosures takes place. One or more senior officers of the FDIC-
supervised institution must attest that the disclosures meet the 
requirements of this subpart.
    (c) If an FDIC-supervised institution described in Sec.  324.61 
concludes that specific commercial or financial information that it 
would otherwise be required to disclose under this section would be 
exempt from disclosure by the FDIC under the Freedom of Information Act 
(5 U.S.C. 552), then the FDIC-supervised institution is not required to 
disclose that specific information pursuant to this section, but must 
disclose more general information about the subject matter of the 
requirement, together with the fact that, and the reason why, the 
specific items of information have not been disclosed.


Sec.  324.63  Disclosures by FDIC-supervised institutions described in 
Sec.  324.61.

    (a) Except as provided in Sec.  324.62, an FDIC-supervised 
institution described in Sec.  324.61 must make the disclosures 
described in Tables 1 through 10 of this section. The FDIC-supervised 
institution must make these disclosures publicly available for each of 
the last three years (that is, twelve quarters) or such shorter period 
beginning on January 1, 2014.
    (b) An FDIC-supervised institution must publicly disclose each 
quarter the following:
    (1) Common equity tier 1 capital, additional tier 1 capital, tier 2 
capital, tier 1 and total capital ratios, including the regulatory 
capital elements and all the regulatory adjustments and deductions 
needed to calculate the numerator of such ratios;
    (2) Total risk-weighted assets, including the different regulatory 
adjustments and deductions needed to calculate total risk-weighted 
assets;
    (3) Regulatory capital ratios during any transition periods, 
including a description of all the regulatory capital elements and all 
regulatory adjustments and deductions needed to calculate the numerator 
and denominator of each capital ratio during any transition period; and
    (4) A reconciliation of regulatory capital elements as they relate 
to its balance sheet in any audited consolidated financial statements.

             Table 1 to Sec.   324.63--Scope of Application
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The name of the top
                                                    corporate entity in
                                                    the group to which
                                                    subpart D of this
                                                    part applies.
                                (b)..............  A brief description
                                                    of the differences
                                                    in the basis for
                                                    consolidating
                                                    entities \1\ for
                                                    accounting and
                                                    regulatory purposes,
                                                    with a description
                                                    of those entities:
                                                   (1) That are fully
                                                    consolidated;
                                                   (2) That are
                                                    deconsolidated and
                                                    deducted from total
                                                    capital;
                                                   (3) For which the
                                                    total capital
                                                    requirement is
                                                    deducted; and
                                                   (4) That are neither
                                                    consolidated nor
                                                    deducted (for
                                                    example, where the
                                                    investment in the
                                                    entity is assigned a
                                                    risk weight in
                                                    accordance with this
                                                    subpart).
                                (c)..............  Any restrictions, or
                                                    other major
                                                    impediments, on
                                                    transfer of funds or
                                                    total capital within
                                                    the group.
Quantitative Disclosures......  (d)..............  The aggregate amount
                                                    of surplus capital
                                                    of insurance
                                                    subsidiaries
                                                    included in the
                                                    total capital of the
                                                    consolidated group.

[[Page 55519]]

 
                                (e)..............  The aggregate amount
                                                    by which actual
                                                    total capital is
                                                    less than the
                                                    minimum total
                                                    capital requirement
                                                    in all subsidiaries,
                                                    with total capital
                                                    requirements and the
                                                    name(s) of the
                                                    subsidiaries with
                                                    such deficiencies.
------------------------------------------------------------------------
\1\ Entities include securities, insurance and other financial
  subsidiaries, commercial subsidiaries (where permitted), and
  significant minority equity investments in insurance, financial and
  commercial entities.


               Table 2 to Sec.   324.63--Capital Structure
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  Summary information
                                                    on the terms and
                                                    conditions of the
                                                    main features of all
                                                    regulatory capital
                                                    instruments.
Quantitative Disclosures......  (b)..............  The amount of common
                                                    equity tier 1
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Common stock and
                                                    related surplus;
                                                   (2) Retained
                                                    earnings;
                                                   (3) Common equity
                                                    minority interest;
                                                   (4) AOCI; and
                                                   (5) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    common equity tier 1
                                                    capital.
                                (c)..............  The amount of tier 1
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Additional tier 1
                                                    capital elements,
                                                    including additional
                                                    tier 1 capital
                                                    instruments and tier
                                                    1 minority interest
                                                    not included in
                                                    common equity tier 1
                                                    capital; and
                                                   (2) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    tier 1 capital.
                                (d)..............  The amount of total
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Tier 2 capital
                                                    elements, including
                                                    tier 2 capital
                                                    instruments and
                                                    total capital
                                                    minority interest
                                                    not included in tier
                                                    1 capital; and
                                                   (2) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    total capital.
------------------------------------------------------------------------


               Table 3 to Sec.   324.63--Capital Adequacy
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  A summary discussion
                                                    of the FDIC-
                                                    supervised
                                                    institution's
                                                    approach to
                                                    assessing the
                                                    adequacy of its
                                                    capital to support
                                                    current and future
                                                    activities.
Quantitative disclosures......  (b)..............  Risk-weighted assets
                                                    for:
                                                   (1) Exposures to
                                                    sovereign entities;
                                                   (2) Exposures to
                                                    certain
                                                    supranational
                                                    entities and MDBs;
                                                   (3) Exposures to
                                                    depository
                                                    institutions,
                                                    foreign banks, and
                                                    credit unions;
                                                   (4) Exposures to
                                                    PSEs;
                                                   (5) Corporate
                                                    exposures;
                                                   (6) Residential
                                                    mortgage exposures;
                                                   (7) Statutory
                                                    multifamily
                                                    mortgages and pre-
                                                    sold construction
                                                    loans;
                                                   (8) HVCRE loans;
                                                   (9) Past due loans;
                                                   (10) Other assets;
                                                   (11) Cleared
                                                    transactions;
                                                   (12) Default fund
                                                    contributions;
                                                   (13) Unsettled
                                                    transactions;
                                                   (14) Securitization
                                                    exposures; and
                                                   (15) Equity
                                                    exposures.
                                (c)..............  Standardized market
                                                    risk-weighted assets
                                                    as calculated under
                                                    subpart F of this
                                                    part.
                                (d)..............  Common equity tier 1,
                                                    tier 1 and total
                                                    risk-based capital
                                                    ratios:
                                                   (1) For the top
                                                    consolidated group;
                                                    and
                                                   (2) For each
                                                    depository
                                                    institution
                                                    subsidiary.
                                (e)..............  Total standardized
                                                    risk-weighted
                                                    assets.
------------------------------------------------------------------------


          Table 4 to Sec.   324.63--Capital Conservation Buffer
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Quantitative Disclosures......  (a)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    the capital
                                                    conservation buffer
                                                    as described under
                                                    Sec.   324.11.
                                (b)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    the eligible
                                                    retained income of
                                                    the FDIC-supervised
                                                    institution, as
                                                    described under Sec.
                                                      324.11.
                                (c)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    any limitations it
                                                    has on distributions
                                                    and discretionary
                                                    bonus payments
                                                    resulting from the
                                                    capital conservation
                                                    buffer framework
                                                    described under Sec.
                                                      324.11, including
                                                    the maximum payout
                                                    amount for the
                                                    quarter.
------------------------------------------------------------------------

    (c) General qualitative disclosure requirement. For each separate 
risk area described in Tables 5 through 10, the FDIC-supervised 
institution must describe its risk management objectives and policies, 
including: strategies and

[[Page 55520]]

processes; the structure and organization of the relevant risk 
management function; the scope and nature of risk reporting and/or 
measurement systems; policies for hedging and/or mitigating risk and 
strategies and processes for monitoring the continuing effectiveness of 
hedges/mitigants.

       Table 5 to Sec.   324.63--Credit Risk: General Disclosures
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to credit
                                                    risk (excluding
                                                    counterparty credit
                                                    risk disclosed in
                                                    accordance with
                                                    Table 6 to Sec.
                                                    324.63), including
                                                    the:
                                                   (1) Policy for
                                                    determining past due
                                                    or delinquency
                                                    status;
                                                   (2) Policy for
                                                    placing loans on
                                                    nonaccrual;
                                                   (3) Policy for
                                                    returning loans to
                                                    accrual status;
                                                   (4) Definition of and
                                                    policy for
                                                    identifying impaired
                                                    loans (for financial
                                                    accounting
                                                    purposes);
                                                   (5) Description of
                                                    the methodology that
                                                    the FDIC-supervised
                                                    institution uses to
                                                    estimate its
                                                    allowance for loan
                                                    and lease losses,
                                                    including
                                                    statistical methods
                                                    used where
                                                    applicable;
                                                   (6) Policy for
                                                    charging-off
                                                    uncollectible
                                                    amounts; and
                                                   (7) Discussion of the
                                                    FDIC-supervised
                                                    institution's credit
                                                    risk management
                                                    policy.
Quantitative Disclosures......  (b)..............  Total credit risk
                                                    exposures and
                                                    average credit risk
                                                    exposures, after
                                                    accounting offsets
                                                    in accordance with
                                                    GAAP, without taking
                                                    into account the
                                                    effects of credit
                                                    risk mitigation
                                                    techniques (for
                                                    example, collateral
                                                    and netting not
                                                    permitted under
                                                    GAAP), over the
                                                    period categorized
                                                    by major types of
                                                    credit exposure. For
                                                    example, FDIC-
                                                    supervised
                                                    institutions could
                                                    use categories
                                                    similar to that used
                                                    for financial
                                                    statement purposes.
                                                    Such categories
                                                    might include, for
                                                    instance:
                                                   (1) Loans, off-
                                                    balance sheet
                                                    commitments, and
                                                    other non-derivative
                                                    off-balance sheet
                                                    exposures;
                                                   (2) Debt securities;
                                                    and
                                                   (3) OTC
                                                    derivatives.\2\
                                (c)..............  Geographic
                                                    distribution of
                                                    exposures,
                                                    categorized in
                                                    significant areas by
                                                    major types of
                                                    credit exposure.\3\
                                (d)..............  Industry or
                                                    counterparty type
                                                    distribution of
                                                    exposures,
                                                    categorized by major
                                                    types of credit
                                                    exposure.
                                (e)..............  By major industry or
                                                    counterparty type:
                                                   (1) Amount of
                                                    impaired loans for
                                                    which there was a
                                                    related allowance
                                                    under GAAP;
                                                   (2) Amount of
                                                    impaired loans for
                                                    which there was no
                                                    related allowance
                                                    under GAAP;
                                                   (3) Amount of loans
                                                    past due 90 days and
                                                    on nonaccrual;
                                                   (4) Amount of loans
                                                    past due 90 days and
                                                    still accruing; \4\
                                                   (5) The balance in
                                                    the allowance for
                                                    loan and lease
                                                    losses at the end of
                                                    each period,
                                                    disaggregated on the
                                                    basis of the FDIC-
                                                    supervised
                                                    institution's
                                                    impairment method.
                                                    To disaggregate the
                                                    information required
                                                    on the basis of
                                                    impairment
                                                    methodology, an
                                                    entity shall
                                                    separately disclose
                                                    the amounts based on
                                                    the requirements in
                                                    GAAP; and
                                                   (6) Charge-offs
                                                    during the period.
                                (f)..............  Amount of impaired
                                                    loans and, if
                                                    available, the
                                                    amount of past due
                                                    loans categorized by
                                                    significant
                                                    geographic areas
                                                    including, if
                                                    practical, the
                                                    amounts of
                                                    allowances related
                                                    to each geographical
                                                    area \5\, further
                                                    categorized as
                                                    required by GAAP.
                                (g)..............  Reconciliation of
                                                    changes in ALLL.\6\
                                (h)..............  Remaining contractual
                                                    maturity delineation
                                                    (for example, one
                                                    year or less) of the
                                                    whole portfolio,
                                                    categorized by
                                                    credit exposure.
------------------------------------------------------------------------
\1\ Table 5 to Sec.   324.63 does not cover equity exposures, which
  should be reported in Table 9 to Sec.   324.63.
\2\ See, for example, ASC Topic 815-10 and 210, as they may be amended
  from time to time.
\3\ Geographical areas may consist of individual countries, groups of
  countries, or regions within countries. An FDIC-supervised institution
  might choose to define the geographical areas based on the way the
  FDIC-supervised institution's portfolio is geographically managed. The
  criteria used to allocate the loans to geographical areas must be
  specified.
\4\ An FDIC-supervised institution is encouraged also to provide an
  analysis of the aging of past-due loans.
\5\ The portion of the general allowance that is not allocated to a
  geographical area should be disclosed separately.
\6\ The reconciliation should include the following: a description of
  the allowance; the opening balance of the allowance; charge-offs taken
  against the allowance during the period; amounts provided (or
  reversed) for estimated probable loan losses during the period; any
  other adjustments (for example, exchange rate differences, business
  combinations, acquisitions and disposals of subsidiaries), including
  transfers between allowances; and the closing balance of the
  allowance. Charge-offs and recoveries that have been recorded directly
  to the income statement should be disclosed separately.


[[Page 55521]]


  Table 6 to Sec.   324.63--General Disclosure for Counterparty Credit
                         Risk-Related Exposures
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to OTC
                                                    derivatives,
                                                    eligible margin
                                                    loans, and repo-
                                                    style transactions,
                                                    including a
                                                    discussion of:
                                                   (1) The methodology
                                                    used to assign
                                                    credit limits for
                                                    counterparty credit
                                                    exposures;
                                                   (2) Policies for
                                                    securing collateral,
                                                    valuing and managing
                                                    collateral, and
                                                    establishing credit
                                                    reserves;
                                                   (3) The primary types
                                                    of collateral taken;
                                                    and
                                                   (4) The impact of the
                                                    amount of collateral
                                                    the FDIC-supervised
                                                    institution would
                                                    have to provide
                                                    given a
                                                    deterioration in the
                                                    FDIC-supervised
                                                    institution's own
                                                    creditworthiness.
Quantitative Disclosures......  (b)..............  Gross positive fair
                                                    value of contracts,
                                                    collateral held
                                                    (including type, for
                                                    example, cash,
                                                    government
                                                    securities), and net
                                                    unsecured credit
                                                    exposure.\1\ An FDIC-
                                                    supervised
                                                    institution also
                                                    must disclose the
                                                    notional value of
                                                    credit derivative
                                                    hedges purchased for
                                                    counterparty credit
                                                    risk protection and
                                                    the distribution of
                                                    current credit
                                                    exposure by exposure
                                                    type.\2\
                                (c)..............  Notional amount of
                                                    purchased and sold
                                                    credit derivatives,
                                                    segregated between
                                                    use for the FDIC-
                                                    supervised
                                                    institution's own
                                                    credit portfolio and
                                                    in its
                                                    intermediation
                                                    activities,
                                                    including the
                                                    distribution of the
                                                    credit derivative
                                                    products used,
                                                    categorized further
                                                    by protection bought
                                                    and sold within each
                                                    product group.
------------------------------------------------------------------------
\1\ Net unsecured credit exposure is the credit exposure after
  considering both the benefits from legally enforceable netting
  agreements and collateral arrangements without taking into account
  haircuts for price volatility, liquidity, etc.
\2\ This may include interest rate derivative contracts, foreign
  exchange derivative contracts, equity derivative contracts, credit
  derivatives, commodity or other derivative contracts, repo-style
  transactions, and eligible margin loans.


          Table 7 to Sec.   324.63--Credit Risk Mitigation 1 2
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to credit
                                                    risk mitigation,
                                                    including:
                                                   (1) Policies and
                                                    processes for
                                                    collateral valuation
                                                    and management;
                                                   (2) A description of
                                                    the main types of
                                                    collateral taken by
                                                    the FDIC-supervised
                                                    institution;
                                                   (3) The main types of
                                                    guarantors/credit
                                                    derivative
                                                    counterparties and
                                                    their
                                                    creditworthiness;
                                                    and
                                                   (4) Information about
                                                    (market or credit)
                                                    risk concentrations
                                                    with respect to
                                                    credit risk
                                                    mitigation.
Quantitative Disclosures......  (b)..............  For each separately
                                                    disclosed credit
                                                    risk portfolio, the
                                                    total exposure that
                                                    is covered by
                                                    eligible financial
                                                    collateral, and
                                                    after the
                                                    application of
                                                    haircuts.
                                (c)..............  For each separately
                                                    disclosed portfolio,
                                                    the total exposure
                                                    that is covered by
                                                    guarantees/credit
                                                    derivatives and the
                                                    risk-weighted asset
                                                    amount associated
                                                    with that exposure.
------------------------------------------------------------------------
\1\ At a minimum, an FDIC-supervised institution must provide the
  disclosures in Table 7 in relation to credit risk mitigation that has
  been recognized for the purposes of reducing capital requirements
  under this subpart. Where relevant, FDIC-supervised institutions are
  encouraged to give further information about mitigants that have not
  been recognized for that purpose.
\2\ Credit derivatives that are treated, for the purposes of this
  subpart, as synthetic securitization exposures should be excluded from
  the credit risk mitigation disclosures and included within those
  relating to securitization (Table 8 to Sec.   324.63).


                Table 8 to Sec.   324.63--Securitization
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures........  (a)...............  The general
                                                      qualitative
                                                      disclosure
                                                      requirement with
                                                      respect to a
                                                      securitization
                                                      (including
                                                      synthetic
                                                      securitizations),
                                                      including a
                                                      discussion of:
                                                     (1) The FDIC-
                                                      supervised
                                                      institution's
                                                      objectives for
                                                      securitizing
                                                      assets, including
                                                      the extent to
                                                      which these
                                                      activities
                                                      transfer credit
                                                      risk of the
                                                      underlying
                                                      exposures away
                                                      from the FDIC-
                                                      supervised
                                                      institution to
                                                      other entities and
                                                      including the type
                                                      of risks assumed
                                                      and retained with
                                                      resecuritization
                                                      activity;\1\
                                                     (2) The nature of
                                                      the risks (e.g.
                                                      liquidity risk)
                                                      inherent in the
                                                      securitized
                                                      assets;
                                                     (3) The roles
                                                      played by the FDIC-
                                                      supervised
                                                      institution in the
                                                      securitization
                                                      process \2\ and an
                                                      indication of the
                                                      extent of the FDIC-
                                                      supervised
                                                      institution's
                                                      involvement in
                                                      each of them;
                                                     (4) The processes
                                                      in place to
                                                      monitor changes in
                                                      the credit and
                                                      market risk of
                                                      securitization
                                                      exposures
                                                      including how
                                                      those processes
                                                      differ for
                                                      resecuritization
                                                      exposures;
                                                     (5) The FDIC-
                                                      supervised
                                                      institution's
                                                      policy for
                                                      mitigating the
                                                      credit risk
                                                      retained through
                                                      securitization and
                                                      resecuritization
                                                      exposures; and
                                                     (6) The risk-based
                                                      capital approaches
                                                      that the FDIC-
                                                      supervised
                                                      institution
                                                      follows for its
                                                      securitization
                                                      exposures
                                                      including the type
                                                      of securitization
                                                      exposure to which
                                                      each approach
                                                      applies.

[[Page 55522]]

 
                                 (b)...............  A list of:
                                                     (1) The type of
                                                      securitization
                                                      SPEs that the FDIC-
                                                      supervised
                                                      institution, as
                                                      sponsor, uses to
                                                      securitize third-
                                                      party exposures.
                                                      The FDIC-
                                                      supervised
                                                      institution must
                                                      indicate whether
                                                      it has exposure to
                                                      these SPEs, either
                                                      on- or off-balance
                                                      sheet; and
                                                     (2) Affiliated
                                                      entities:
                                                     (i) That the FDIC-
                                                      supervised
                                                      institution
                                                      manages or
                                                      advises; and
                                                     (ii) That invest
                                                      either in the
                                                      securitization
                                                      exposures that the
                                                      FDIC-supervised
                                                      institution has
                                                      securitized or in
                                                      securitization
                                                      SPEs that the FDIC-
                                                      supervised
                                                      institution
                                                      sponsors.\3\
                                 (c)...............  Summary of the FDIC-
                                                      supervised
                                                      institution's
                                                      accounting
                                                      policies for
                                                      securitization
                                                      activities,
                                                      including:
                                                     (1) Whether the
                                                      transactions are
                                                      treated as sales
                                                      or financings;
                                                     (2) Recognition of
                                                      gain-on-sale;
                                                     (3) Methods and key
                                                      assumptions
                                                      applied in valuing
                                                      retained or
                                                      purchased
                                                      interests;
                                                     (4) Changes in
                                                      methods and key
                                                      assumptions from
                                                      the previous
                                                      period for valuing
                                                      retained interests
                                                      and impact of the
                                                      changes;
                                                     (5) Treatment of
                                                      synthetic
                                                      securitizations;
                                                     (6) How exposures
                                                      intended to be
                                                      securitized are
                                                      valued and whether
                                                      they are recorded
                                                      under subpart D of
                                                      this part; and
                                                     (7) Policies for
                                                      recognizing
                                                      liabilities on the
                                                      balance sheet for
                                                      arrangements that
                                                      could require the
                                                      FDIC-supervised
                                                      institution to
                                                      provide financial
                                                      support for
                                                      securitized
                                                      assets.
                                 (d)...............  An explanation of
                                                      significant
                                                      changes to any
                                                      quantitative
                                                      information since
                                                      the last reporting
                                                      period.
Quantitative Disclosures.......  (e)...............  The total
                                                      outstanding
                                                      exposures
                                                      securitized by the
                                                      FDIC-supervised
                                                      institution in
                                                      securitizations
                                                      that meet the
                                                      operational
                                                      criteria provided
                                                      in Sec.   324.41
                                                      (categorized into
                                                      traditional and
                                                      synthetic
                                                      securitizations),
                                                      by exposure type,
                                                      separately for
                                                      securitizations of
                                                      third-party
                                                      exposures for
                                                      which the FDIC-
                                                      supervised
                                                      institution acts
                                                      only as
                                                      sponsor.\4\
                                 (f)...............  For exposures
                                                      securitized by the
                                                      FDIC-supervised
                                                      institution in
                                                      securitizations
                                                      that meet the
                                                      operational
                                                      criteria in Sec.
                                                      324.41:
                                                     (1) Amount of
                                                      securitized assets
                                                      that are impaired/
                                                      past due
                                                      categorized by
                                                      exposure type; \5\
                                                      and
                                                     (2) Losses
                                                      recognized by the
                                                      FDIC-supervised
                                                      institution during
                                                      the current period
                                                      categorized by
                                                      exposure type.\6\
                                 (g)...............  The total amount of
                                                      outstanding
                                                      exposures intended
                                                      to be securitized
                                                      categorized by
                                                      exposure type.
                                 (h)...............  Aggregate amount
                                                      of:
                                                     (1) On-balance
                                                      sheet
                                                      securitization
                                                      exposures retained
                                                      or purchased
                                                      categorized by
                                                      exposure type; and
                                                     (2) Off-balance
                                                      sheet
                                                      securitization
                                                      exposures
                                                      categorized by
                                                      exposure type.
                                 (i)...............  (1) Aggregate
                                                      amount of
                                                      securitization
                                                      exposures retained
                                                      or purchased and
                                                      the associated
                                                      capital
                                                      requirements for
                                                      these exposures,
                                                      categorized
                                                      between
                                                      securitization and
                                                      resecuritization
                                                      exposures, further
                                                      categorized into a
                                                      meaningful number
                                                      of risk weight
                                                      bands and by risk-
                                                      based capital
                                                      approach (e.g.,
                                                      SSFA); and
                                                     (2) Exposures that
                                                      have been deducted
                                                      entirely from tier
                                                      1 capital, CEIOs
                                                      deducted from
                                                      total capital (as
                                                      described in Sec.
                                                       324.42(a)(1)),
                                                      and other
                                                      exposures deducted
                                                      from total capital
                                                      should be
                                                      disclosed
                                                      separately by
                                                      exposure type.
                                 (j)...............  Summary of current
                                                      year's
                                                      securitization
                                                      activity,
                                                      including the
                                                      amount of
                                                      exposures
                                                      securitized (by
                                                      exposure type),
                                                      and recognized
                                                      gain or loss on
                                                      sale by exposure
                                                      type.
                                 (k)...............  Aggregate amount of
                                                      resecuritization
                                                      exposures retained
                                                      or purchased
                                                      categorized
                                                      according to:
                                                     (1) Exposures to
                                                      which credit risk
                                                      mitigation is
                                                      applied and those
                                                      not applied; and
                                                     (2) Exposures to
                                                      guarantors
                                                      categorized
                                                      according to
                                                      guarantor
                                                      creditworthiness
                                                      categories or
                                                      guarantor name.
------------------------------------------------------------------------
\1\ The FDIC-supervised institution should describe the structure of
  resecuritizations in which it participates; this description should be
  provided for the main categories of resecuritization products in which
  the FDIC-supervised institution is active.
\2\ For example, these roles may include originator, investor, servicer,
  provider of credit enhancement, sponsor, liquidity provider, or swap
  provider.
\3\ Such affiliated entities may include, for example, money market
  funds, to be listed individually, and personal and private trusts, to
  be noted collectively.

[[Page 55523]]

 
\4\ ``Exposures securitized'' include underlying exposures originated by
  the FDIC-supervised institution, whether generated by them or
  purchased, and recognized in the balance sheet, from third parties,
  and third-party exposures included in sponsored transactions.
  Securitization transactions (including underlying exposures originally
  on the FDIC-supervised institution's balance sheet and underlying
  exposures acquired by the FDIC-supervised institution from third-party
  entities) in which the originating bank does not retain any
  securitization exposure should be shown separately but need only be
  reported for the year of inception. FDIC-supervised institutions are
  required to disclose exposures regardless of whether there is a
  capital charge under this part.
\5\ Include credit-related other than temporary impairment (OTTI).
\6\ For example, charge-offs/allowances (if the assets remain on the
  FDIC-supervised institution's balance sheet) or credit-related OTTI of
  interest-only strips and other retained residual interests, as well as
  recognition of liabilities for probable future financial support
  required of the FDIC-supervised institution with respect to
  securitized assets.


Table 9 to Sec.   324.63--Equities Not Subject to Subpart F of This Part
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to equity
                                                    risk for equities
                                                    not subject to
                                                    subpart F of this
                                                    part, including:
                                                   (1) Differentiation
                                                    between holdings on
                                                    which capital gains
                                                    are expected and
                                                    those taken under
                                                    other objectives
                                                    including for
                                                    relationship and
                                                    strategic reasons;
                                                    and
                                                   (2) Discussion of
                                                    important policies
                                                    covering the
                                                    valuation of and
                                                    accounting for
                                                    equity holdings not
                                                    subject to subpart F
                                                    of this part. This
                                                    includes the
                                                    accounting
                                                    techniques and
                                                    valuation
                                                    methodologies used,
                                                    including key
                                                    assumptions and
                                                    practices affecting
                                                    valuation as well as
                                                    significant changes
                                                    in these practices.
Quantitative Disclosures......  (b)..............  Value disclosed on
                                                    the balance sheet of
                                                    investments, as well
                                                    as the fair value of
                                                    those investments;
                                                    for securities that
                                                    are publicly traded,
                                                    a comparison to
                                                    publicly-quoted
                                                    share values where
                                                    the share price is
                                                    materially different
                                                    from fair value.
                                (c)..............  The types and nature
                                                    of investments,
                                                    including the amount
                                                    that is:
                                                   (1) Publicly traded;
                                                    and
                                                   (2) Non publicly
                                                    traded.
                                (d)..............  The cumulative
                                                    realized gains
                                                    (losses) arising
                                                    from sales and
                                                    liquidations in the
                                                    reporting period.
                                (e)..............  (1) Total unrealized
                                                    gains (losses).\1\
                                                   (2) Total latent
                                                    revaluation gains
                                                    (losses).\2\
                                                   (3) Any amounts of
                                                    the above included
                                                    in tier 1 or tier 2
                                                    capital.
                                (f)..............  Capital requirements
                                                    categorized by
                                                    appropriate equity
                                                    groupings,
                                                    consistent with the
                                                    FDIC-supervised
                                                    institution's
                                                    methodology, as well
                                                    as the aggregate
                                                    amounts and the type
                                                    of equity
                                                    investments subject
                                                    to any supervisory
                                                    transition regarding
                                                    regulatory capital
                                                    requirements.
------------------------------------------------------------------------
\1\ Unrealized gains (losses) recognized on the balance sheet but not
  through earnings.
\2\ Unrealized gains (losses) not recognized either on the balance sheet
  or through earnings.


Table 10 to Sec.   324.63--Interest Rate Risk for Non-Trading Activities
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement,
                                                    including the nature
                                                    of interest rate
                                                    risk for non-trading
                                                    activities and key
                                                    assumptions,
                                                    including
                                                    assumptions
                                                    regarding loan
                                                    prepayments and
                                                    behavior of non-
                                                    maturity deposits,
                                                    and frequency of
                                                    measurement of
                                                    interest rate risk
                                                    for non-trading
                                                    activities.
Quantitative disclosures......  (b)..............  The increase
                                                    (decline) in
                                                    earnings or economic
                                                    value (or relevant
                                                    measure used by
                                                    management) for
                                                    upward and downward
                                                    rate shocks
                                                    according to
                                                    management's method
                                                    for measuring
                                                    interest rate risk
                                                    for non-trading
                                                    activities,
                                                    categorized by
                                                    currency (as
                                                    appropriate).
------------------------------------------------------------------------

Sec. Sec.  324.64 through 324.99   [Reserved]

Subpart E--Risk-Weighted Assets--Internal Ratings-Based and 
Advanced Measurement Approaches


Sec.  324.100  Purpose, applicability, and principle of conservatism.

    (a) Purpose. This subpart E establishes:
    (1) Minimum qualifying criteria for FDIC-supervised institutions 
using institution-specific internal risk measurement and management 
processes for calculating risk-based capital requirements; and
    (2) Methodologies for such FDIC-supervised institutions to 
calculate their total risk-weighted assets.
    (b) Applicability. (1) This subpart applies to an FDIC-supervised 
institution that:
    (i) Has consolidated total assets, as reported on its most recent 
year-end Call Report equal to $250 billion or more;
    (ii) Has consolidated total on-balance sheet foreign exposure on 
its most recent year-end Call Report equal to $10 billion or more 
(where total on-balance sheet foreign exposure equals total cross-
border claims less claims with a head office or guarantor located in 
another country plus redistributed guaranteed amounts to the country of 
head office or guarantor plus local country claims on local residents 
plus revaluation gains on foreign exchange and derivative products, 
calculated in accordance with the Federal Financial Institutions 
Examination Council (FFIEC) 009 Country Exposure Report);
    (iii) Is a subsidiary of a depository institution that uses this 
subpart or the advanced approaches pursuant to subpart E of 12 CFR part 
3 (OCC), or 12 CFR part 217 (Federal Reserve) to calculate its total 
risk-weighted assets;
    (iv) Is a subsidiary of a bank holding company or savings and loan 
holding company that uses the advanced approaches pursuant to 12 CFR 
part 217

[[Page 55524]]

to calculate its total risk-weighted assets; or
    (v) Elects to use this subpart to calculate its total risk-weighted 
assets.
    (2) An FDIC-supervised institution that is subject to this subpart 
shall remain subject to this subpart unless the FDIC determines in 
writing that application of this subpart is not appropriate in light of 
the FDIC-supervised institution's asset size, level of complexity, risk 
profile, or scope of operations. In making a determination under this 
paragraph (b), the FDIC will apply notice and response procedures in 
the same manner and to the same extent as the notice and response 
procedures in Sec.  324.5.
    (3) A market risk FDIC-supervised institution must exclude from its 
calculation of risk-weighted assets under this subpart the risk-
weighted asset amounts of all covered positions, as defined in subpart 
F of this part (except foreign exchange positions that are not trading 
positions, over-the-counter derivative positions, cleared transactions, 
and unsettled transactions).
    (c) Principle of conservatism. Notwithstanding the requirements of 
this subpart, an FDIC-supervised institution may choose not to apply a 
provision of this subpart to one or more exposures provided that:
    (1) The FDIC-supervised institution can demonstrate on an ongoing 
basis to the satisfaction of the FDIC that not applying the provision 
would, in all circumstances, unambiguously generate a risk-based 
capital requirement for each such exposure greater than that which 
would otherwise be required under this subpart;
    (2) The FDIC-supervised institution appropriately manages the risk 
of each such exposure;
    (3) The FDIC-supervised institution notifies the FDIC in writing 
prior to applying this principle to each such exposure; and
    (4) The exposures to which the FDIC-supervised institution applies 
this principle are not, in the aggregate, material to the FDIC-
supervised institution.


Sec.  324.101  Definitions.

    (a) Terms that are set forth in Sec.  324.2 and used in this 
subpart have the definitions assigned thereto in Sec.  324.2.
    (b) For the purposes of this subpart, the following terms are 
defined as follows:
    Advanced internal ratings-based (IRB) systems means an advanced 
approaches FDIC-supervised institution's internal risk rating and 
segmentation system; risk parameter quantification system; data 
management and maintenance system; and control, oversight, and 
validation system for credit risk of wholesale and retail exposures.
    Advanced systems means an advanced approaches FDIC-supervised 
institution's advanced IRB systems, operational risk management 
processes, operational risk data and assessment systems, operational 
risk quantification systems, and, to the extent used by the FDIC-
supervised institution, the internal models methodology, advanced CVA 
approach, double default excessive correlation detection process, and 
internal models approach (IMA) for equity exposures.
    Backtesting means the comparison of an FDIC-supervised 
institution's internal estimates with actual outcomes during a sample 
period not used in model development. In this context, backtesting is 
one form of out-of-sample testing.
    Benchmarking means the comparison of an FDIC-supervised 
institution's internal estimates with relevant internal and external 
data or with estimates based on other estimation techniques.
    Bond option contract means a bond option, bond future, or any other 
instrument linked to a bond that gives rise to similar counterparty 
credit risk.
    Business environment and internal control factors means the 
indicators of an FDIC-supervised institution's operational risk profile 
that reflect a current and forward-looking assessment of the FDIC-
supervised institution's underlying business risk factors and internal 
control environment.
    Credit default swap (CDS) means a financial contract executed under 
standard industry documentation that allows one party (the protection 
purchaser) to transfer the credit risk of one or more exposures 
(reference exposure(s)) to another party (the protection provider) for 
a certain period of time.
    Credit valuation adjustment (CVA) means the fair value adjustment 
to reflect counterparty credit risk in valuation of OTC derivative 
contracts.
    Default--For the purposes of calculating capital requirements under 
this subpart:
    (1) Retail. (i) A retail exposure of an FDIC-supervised institution 
is in default if:
    (A) The exposure is 180 days past due, in the case of a residential 
mortgage exposure or revolving exposure;
    (B) The exposure is 120 days past due, in the case of retail 
exposures that are not residential mortgage exposures or revolving 
exposures; or
    (C) The FDIC-supervised institution has taken a full or partial 
charge-off, write-down of principal, or material negative fair value 
adjustment of principal on the exposure for credit-related reasons.
    (ii) Notwithstanding paragraph (1)(i) of this definition, for a 
retail exposure held by a non-U.S. subsidiary of the FDIC-supervised 
institution that is subject to an internal ratings-based approach to 
capital adequacy consistent with the Basel Committee on Banking 
Supervision's ``International Convergence of Capital Measurement and 
Capital Standards: A Revised Framework'' in a non-U.S. jurisdiction, 
the FDIC-supervised institution may elect to use the definition of 
default that is used in that jurisdiction, provided that the FDIC-
supervised institution has obtained prior approval from the FDIC to use 
the definition of default in that jurisdiction.
    (iii) A retail exposure in default remains in default until the 
FDIC-supervised institution has reasonable assurance of repayment and 
performance for all contractual principal and interest payments on the 
exposure.
    (2) Wholesale. (i) An FDIC-supervised institution's wholesale 
obligor is in default if:
    (A) The FDIC-supervised institution determines that the obligor is 
unlikely to pay its credit obligations to the FDIC-supervised 
institution in full, without recourse by the FDIC-supervised 
institution to actions such as realizing collateral (if held); or
    (B) The obligor is past due more than 90 days on any material 
credit obligation(s) to the FDIC-supervised institution.\25\
---------------------------------------------------------------------------

    \25\ Overdrafts are past due once the obligor has breached an 
advised limit or been advised of a limit smaller than the current 
outstanding balance.
---------------------------------------------------------------------------

    (ii) An obligor in default remains in default until the FDIC-
supervised institution has reasonable assurance of repayment and 
performance for all contractual principal and interest payments on all 
exposures of the FDIC-supervised institution to the obligor (other than 
exposures that have been fully written-down or charged-off).
    Dependence means a measure of the association among operational 
losses across and within units of measure.
    Economic downturn conditions means, with respect to an exposure 
held by the FDIC-supervised institution, those conditions in which the 
aggregate default rates for that exposure's wholesale or retail 
exposure subcategory (or subdivision of such subcategory selected by 
the FDIC-supervised

[[Page 55525]]

institution) in the exposure's national jurisdiction (or subdivision of 
such jurisdiction selected by the FDIC-supervised institution) are 
significantly higher than average.
    Effective maturity (M) of a wholesale exposure means:
    (1) For wholesale exposures other than repo-style transactions, 
eligible margin loans, and OTC derivative contracts described in 
paragraph (2) or (3) of this definition:
    (i) The weighted-average remaining maturity (measured in years, 
whole or fractional) of the expected contractual cash flows from the 
exposure, using the undiscounted amounts of the cash flows as weights; 
or
    (ii) The nominal remaining maturity (measured in years, whole or 
fractional) of the exposure.
    (2) For repo-style transactions, eligible margin loans, and OTC 
derivative contracts subject to a qualifying master netting agreement 
for which the FDIC-supervised institution does not apply the internal 
models approach in Sec.  324.132(d), the weighted-average remaining 
maturity (measured in years, whole or fractional) of the individual 
transactions subject to the qualifying master netting agreement, with 
the weight of each individual transaction set equal to the notional 
amount of the transaction.
    (3) For repo-style transactions, eligible margin loans, and OTC 
derivative contracts for which the FDIC-supervised institution applies 
the internal models approach in Sec.  324.132(d), the value determined 
in Sec.  324.132(d)(4).
    Eligible double default guarantor, with respect to a guarantee or 
credit derivative obtained by an FDIC-supervised institution, means:
    (1) U.S.-based entities. A depository institution, a bank holding 
company, a savings and loan holding company, or a securities broker or 
dealer registered with the SEC under the Securities Exchange Act, if at 
the time the guarantee is issued or anytime thereafter, has issued and 
outstanding an unsecured debt security without credit enhancement that 
is investment grade.
    (2) Non-U.S.-based entities. A foreign bank, or a non-U.S.-based 
securities firm if the FDIC-supervised institution demonstrates that 
the guarantor is subject to consolidated supervision and regulation 
comparable to that imposed on U.S. depository institutions (or 
securities broker-dealers), if at the time the guarantee is issued or 
anytime thereafter, has issued and outstanding an unsecured debt 
security without credit enhancement that is investment grade.
    Eligible operational risk offsets means amounts, not to exceed 
expected operational loss, that:
    (1) Are generated by internal business practices to absorb highly 
predictable and reasonably stable operational losses, including 
reserves calculated consistent with GAAP; and
    (2) Are available to cover expected operational losses with a high 
degree of certainty over a one-year horizon.
    Eligible purchased wholesale exposure means a purchased wholesale 
exposure that:
    (1) The FDIC-supervised institution or securitization SPE purchased 
from an unaffiliated seller and did not directly or indirectly 
originate;
    (2) Was generated on an arm's-length basis between the seller and 
the obligor (intercompany accounts receivable and receivables subject 
to contra-accounts between firms that buy and sell to each other do not 
satisfy this criterion);
    (3) Provides the FDIC-supervised institution or securitization SPE 
with a claim on all proceeds from the exposure or a pro rata interest 
in the proceeds from the exposure;
    (4) Has an M of less than one year; and
    (5) When consolidated by obligor, does not represent a concentrated 
exposure relative to the portfolio of purchased wholesale exposures.
    Expected exposure (EE) means the expected value of the probability 
distribution of non-negative credit risk exposures to a counterparty at 
any specified future date before the maturity date of the longest term 
transaction in the netting set. Any negative fair values in the 
probability distribution of fair values to a counterparty at a 
specified future date are set to zero to convert the probability 
distribution of fair values to the probability distribution of credit 
risk exposures.
    Expected operational loss (EOL) means the expected value of the 
distribution of potential aggregate operational losses, as generated by 
the FDIC-supervised institution's operational risk quantification 
system using a one-year horizon.
    Expected positive exposure (EPE) means the weighted average over 
time of expected (non-negative) exposures to a counterparty where the 
weights are the proportion of the time interval that an individual 
expected exposure represents. When calculating risk-based capital 
requirements, the average is taken over a one-year horizon.
    Exposure at default (EAD) means:
    (1) For the on-balance sheet component of a wholesale exposure or 
segment of retail exposures (other than an OTC derivative contract, a 
repo-style transaction or eligible margin loan for which the FDIC-
supervised institution determines EAD under Sec.  324.132, a cleared 
transaction, or default fund contribution), EAD means the FDIC-
supervised institution's carrying value (including net accrued but 
unpaid interest and fees) for the exposure or segment less any 
allocated transfer risk reserve for the exposure or segment.
    (2) For the off-balance sheet component of a wholesale exposure or 
segment of retail exposures (other than an OTC derivative contract, a 
repo-style transaction or eligible margin loan for which the FDIC-
supervised institution determines EAD under Sec.  324.132, cleared 
transaction, or default fund contribution) in the form of a loan 
commitment, line of credit, trade-related letter of credit, or 
transaction-related contingency, EAD means the FDIC-supervised 
institution's best estimate of net additions to the outstanding amount 
owed the FDIC-supervised institution, including estimated future 
additional draws of principal and accrued but unpaid interest and fees, 
that are likely to occur over a one-year horizon assuming the wholesale 
exposure or the retail exposures in the segment were to go into 
default. This estimate of net additions must reflect what would be 
expected during economic downturn conditions. For the purposes of this 
definition:
    (i) Trade-related letters of credit are short-term, self-
liquidating instruments that are used to finance the movement of goods 
and are collateralized by the underlying goods.
    (ii) Transaction-related contingencies relate to a particular 
transaction and include, among other things, performance bonds and 
performance-based letters of credit.
    (3) For the off-balance sheet component of a wholesale exposure or 
segment of retail exposures (other than an OTC derivative contract, a 
repo-style transaction, or eligible margin loan for which the FDIC-
supervised institution determines EAD under Sec.  324.132, cleared 
transaction, or default fund contribution) in the form of anything 
other than a loan commitment, line of credit, trade-related letter of 
credit, or transaction-related contingency, EAD means the notional 
amount of the exposure or segment.
    (4) EAD for OTC derivative contracts is calculated as described in 
Sec.  324.132. An FDIC-supervised institution also may determine EAD 
for repo-style transactions and eligible margin loans as described in 
Sec.  324.132.
    Exposure category means any of the wholesale, retail, 
securitization, or equity exposure categories.

[[Page 55526]]

    External operational loss event data means, with respect to an 
FDIC-supervised institution, gross operational loss amounts, dates, 
recoveries, and relevant causal information for operational loss events 
occurring at organizations other than the FDIC-supervised institution.
    IMM exposure means a repo-style transaction, eligible margin loan, 
or OTC derivative for which an FDIC-supervised institution calculates 
its EAD using the internal models methodology of Sec.  324.132(d).
    Internal operational loss event data means, with respect to an 
FDIC-supervised institution, gross operational loss amounts, dates, 
recoveries, and relevant causal information for operational loss events 
occurring at the FDIC-supervised institution.
    Loss given default (LGD) means:
    (1) For a wholesale exposure, the greatest of:
    (i) Zero;
    (ii) The FDIC-supervised institution's empirically based best 
estimate of the long-run default-weighted average economic loss, per 
dollar of EAD, the FDIC-supervised institution would expect to incur if 
the obligor (or a typical obligor in the loss severity grade assigned 
by the FDIC-supervised institution to the exposure) were to default 
within a one-year horizon over a mix of economic conditions, including 
economic downturn conditions; or
    (iii) The FDIC-supervised institution's empirically based best 
estimate of the economic loss, per dollar of EAD, the FDIC-supervised 
institution would expect to incur if the obligor (or a typical obligor 
in the loss severity grade assigned by the FDIC-supervised institution 
to the exposure) were to default within a one-year horizon during 
economic downturn conditions.
    (2) For a segment of retail exposures, the greatest of:
    (i) Zero;
    (ii) The FDIC-supervised institution's empirically based best 
estimate of the long-run default-weighted average economic loss, per 
dollar of EAD, the FDIC-supervised institution would expect to incur if 
the exposures in the segment were to default within a one-year horizon 
over a mix of economic conditions, including economic downturn 
conditions; or
    (iii) The FDIC-supervised institution's empirically based best 
estimate of the economic loss, per dollar of EAD, the FDIC-supervised 
institution would expect to incur if the exposures in the segment were 
to default within a one-year horizon during economic downturn 
conditions.
    (3) The economic loss on an exposure in the event of default is all 
material credit-related losses on the exposure (including accrued but 
unpaid interest or fees, losses on the sale of collateral, direct 
workout costs, and an appropriate allocation of indirect workout 
costs). Where positive or negative cash flows on a wholesale exposure 
to a defaulted obligor or a defaulted retail exposure (including 
proceeds from the sale of collateral, workout costs, additional 
extensions of credit to facilitate repayment of the exposure, and draw-
downs of unused credit lines) occur after the date of default, the 
economic loss must reflect the net present value of cash flows as of 
the default date using a discount rate appropriate to the risk of the 
defaulted exposure.
    Obligor means the legal entity or natural person contractually 
obligated on a wholesale exposure, except that an FDIC-supervised 
institution may treat the following exposures as having separate 
obligors:
    (1) Exposures to the same legal entity or natural person 
denominated in different currencies;
    (2)(i) An income-producing real estate exposure for which all or 
substantially all of the repayment of the exposure is reliant on the 
cash flows of the real estate serving as collateral for the exposure; 
the FDIC-supervised institution, in economic substance, does not have 
recourse to the borrower beyond the real estate collateral; and no 
cross-default or cross-acceleration clauses are in place other than 
clauses obtained solely out of an abundance of caution; and
    (ii) Other credit exposures to the same legal entity or natural 
person; and
    (3)(i) A wholesale exposure authorized under section 364 of the 
U.S. Bankruptcy Code (11 U.S.C. 364) to a legal entity or natural 
person who is a debtor-in-possession for purposes of Chapter 11 of the 
Bankruptcy Code; and
    (ii) Other credit exposures to the same legal entity or natural 
person.
    Operational loss means a loss (excluding insurance or tax effects) 
resulting from an operational loss event. Operational loss includes all 
expenses associated with an operational loss event except for 
opportunity costs, forgone revenue, and costs related to risk 
management and control enhancements implemented to prevent future 
operational losses.
    Operational loss event means an event that results in loss and is 
associated with any of the following seven operational loss event type 
categories:
    (1) Internal fraud, which means the operational loss event type 
category that comprises operational losses resulting from an act 
involving at least one internal party of a type intended to defraud, 
misappropriate property, or circumvent regulations, the law, or company 
policy excluding diversity- and discrimination-type events.
    (2) External fraud, which means the operational loss event type 
category that comprises operational losses resulting from an act by a 
third party of a type intended to defraud, misappropriate property, or 
circumvent the law. Retail credit card losses arising from non-
contractual, third-party-initiated fraud (for example, identity theft) 
are external fraud operational losses. All other third-party-initiated 
credit losses are to be treated as credit risk losses.
    (3) Employment practices and workplace safety, which means the 
operational loss event type category that comprises operational losses 
resulting from an act inconsistent with employment, health, or safety 
laws or agreements, payment of personal injury claims, or payment 
arising from diversity- and discrimination-type events.
    (4) Clients, products, and business practices, which means the 
operational loss event type category that comprises operational losses 
resulting from the nature or design of a product or from an 
unintentional or negligent failure to meet a professional obligation to 
specific clients (including fiduciary and suitability requirements).
    (5) Damage to physical assets, which means the operational loss 
event type category that comprises operational losses resulting from 
the loss of or damage to physical assets from natural disaster or other 
events.
    (6) Business disruption and system failures, which means the 
operational loss event type category that comprises operational losses 
resulting from disruption of business or system failures.
    (7) Execution, delivery, and process management, which means the 
operational loss event type category that comprises operational losses 
resulting from failed transaction processing or process management or 
losses arising from relations with trade counterparties and vendors.
    Operational risk means the risk of loss resulting from inadequate 
or failed internal processes, people, and systems or from external 
events (including legal risk but excluding strategic and reputational 
risk).
    Operational risk exposure means the 99.9th percentile of the 
distribution of potential aggregate operational losses, as generated by 
the FDIC-supervised institution's operational risk quantification 
system over a one-year

[[Page 55527]]

horizon (and not incorporating eligible operational risk offsets or 
qualifying operational risk mitigants).
    Other retail exposure means an exposure (other than a 
securitization exposure, an equity exposure, a residential mortgage 
exposure, a pre-sold construction loan, a qualifying revolving 
exposure, or the residual value portion of a lease exposure) that is 
managed as part of a segment of exposures with homogeneous risk 
characteristics, not on an individual-exposure basis, and is either:
    (1) An exposure to an individual for non-business purposes; or
    (2) An exposure to an individual or company for business purposes 
if the FDIC-supervised institution's consolidated business credit 
exposure to the individual or company is $1 million or less.
    Probability of default (PD) means:
    (1) For a wholesale exposure to a non-defaulted obligor, the FDIC-
supervised institution's empirically based best estimate of the long-
run average one-year default rate for the rating grade assigned by the 
FDIC-supervised institution to the obligor, capturing the average 
default experience for obligors in the rating grade over a mix of 
economic conditions (including economic downturn conditions) sufficient 
to provide a reasonable estimate of the average one-year default rate 
over the economic cycle for the rating grade.
    (2) For a segment of non-defaulted retail exposures, the FDIC-
supervised institution's empirically based best estimate of the long-
run average one-year default rate for the exposures in the segment, 
capturing the average default experience for exposures in the segment 
over a mix of economic conditions (including economic downturn 
conditions) sufficient to provide a reasonable estimate of the average 
one-year default rate over the economic cycle for the segment.
    (3) For a wholesale exposure to a defaulted obligor or segment of 
defaulted retail exposures, 100 percent.
    Qualifying cross-product master netting agreement means a 
qualifying master netting agreement that provides for termination and 
close-out netting across multiple types of financial transactions or 
qualifying master netting agreements in the event of a counterparty's 
default, provided that the underlying financial transactions are OTC 
derivative contracts, eligible margin loans, or repo-style 
transactions. In order to treat an agreement as a qualifying cross-
product master netting agreement for purposes of this subpart, an FDIC-
supervised institution must comply with the requirements of Sec.  
324.3(c) of this part with respect to that agreement.
    Qualifying revolving exposure (QRE) means an exposure (other than a 
securitization exposure or equity exposure) to an individual that is 
managed as part of a segment of exposures with homogeneous risk 
characteristics, not on an individual-exposure basis, and:
    (1) Is revolving (that is, the amount outstanding fluctuates, 
determined largely by a borrower's decision to borrow and repay up to a 
pre-established maximum amount, except for an outstanding amount that 
the borrower is required to pay in full every month);
    (2) Is unsecured and unconditionally cancelable by the FDIC-
supervised institution to the fullest extent permitted by Federal law; 
and
    (3)(i) Has a maximum contractual exposure amount (drawn plus 
undrawn) of up to $100,000; or
    (ii) With respect to a product with an outstanding amount that the 
borrower is required to pay in full every month, the total outstanding 
amount does not in practice exceed $100,000.
    (4) A segment of exposures that contains one or more exposures that 
fails to meet paragraph (3)(ii) of this definition must be treated as a 
segment of other retail exposures for the 24 month period following the 
month in which the total outstanding amount of one or more exposures 
individually exceeds $100,000.
    Retail exposure means a residential mortgage exposure, a qualifying 
revolving exposure, or an other retail exposure.
    Retail exposure subcategory means the residential mortgage 
exposure, qualifying revolving exposure, or other retail exposure 
subcategory.
    Risk parameter means a variable used in determining risk-based 
capital requirements for wholesale and retail exposures, specifically 
probability of default (PD), loss given default (LGD), exposure at 
default (EAD), or effective maturity (M).
    Scenario analysis means a systematic process of obtaining expert 
opinions from business managers and risk management experts to derive 
reasoned assessments of the likelihood and loss impact of plausible 
high-severity operational losses. Scenario analysis may include the 
well-reasoned evaluation and use of external operational loss event 
data, adjusted as appropriate to ensure relevance to an FDIC-supervised 
institution's operational risk profile and control structure.
    Total wholesale and retail risk-weighted assets means the sum of:
    (1) Risk-weighted assets for wholesale exposures that are not IMM 
exposures, cleared transactions, or default fund contributions to non-
defaulted obligors and segments of non-defaulted retail exposures;
    (2) Risk-weighted assets for wholesale exposures to defaulted 
obligors and segments of defaulted retail exposures;
    (3) Risk-weighted assets for assets not defined by an exposure 
category;
    (4) Risk-weighted assets for non-material portfolios of exposures;
    (5) Risk-weighted assets for IMM exposures (as determined in Sec.  
324.132(d));
    (6) Risk-weighted assets for cleared transactions and risk-weighted 
assets for default fund contributions (as determined in Sec.  324.133); 
and
    (7) Risk-weighted assets for unsettled transactions (as determined 
in Sec.  324.136).
    Unexpected operational loss (UOL) means the difference between the 
FDIC-supervised institution's operational risk exposure and the FDIC-
supervised institution's expected operational loss.
    Unit of measure means the level (for example, organizational unit 
or operational loss event type) at which the FDIC-supervised 
institution's operational risk quantification system generates a 
separate distribution of potential operational losses.
    Wholesale exposure means a credit exposure to a company, natural 
person, sovereign, or governmental entity (other than a securitization 
exposure, retail exposure, pre-sold construction loan, or equity 
exposure).
    Wholesale exposure subcategory means the HVCRE or non-HVCRE 
wholesale exposure subcategory.


Sec. Sec.  324.102 through 324.120  [Reserved]

Qualification


Sec.  324.121  Qualification process.

    (a) Timing. (1) An FDIC-supervised institution that is described in 
Sec.  324.100(b)(1)(i) through (iv) must adopt a written implementation 
plan no later than six months after the date the FDIC-supervised 
institution meets a criterion in that section. The implementation plan 
must incorporate an explicit start date no later than 36 months after 
the date the FDIC-supervised institution meets at least one criterion 
under Sec.  324.100(b)(1)(i) through (iv). The FDIC may extend the 
start date.
    (2) An FDIC-supervised institution that elects to be subject to 
this subpart under Sec.  324.100(b)(1)(v) must adopt a written 
implementation plan.

[[Page 55528]]

    (b) Implementation plan. (1) The FDIC-supervised institution's 
implementation plan must address in detail how the FDIC-supervised 
institution complies, or plans to comply, with the qualification 
requirements in Sec.  324.122. The FDIC-supervised institution also 
must maintain a comprehensive and sound planning and governance process 
to oversee the implementation efforts described in the plan. At a 
minimum, the plan must:
    (i) Comprehensively address the qualification requirements in Sec.  
324.122 for the FDIC-supervised institution and each consolidated 
subsidiary (U.S. and foreign-based) of the FDIC-supervised institution 
with respect to all portfolios and exposures of the FDIC-supervised 
institution and each of its consolidated subsidiaries;
    (ii) Justify and support any proposed temporary or permanent 
exclusion of business lines, portfolios, or exposures from the 
application of the advanced approaches in this subpart (which business 
lines, portfolios, and exposures must be, in the aggregate, immaterial 
to the FDIC-supervised institution);
    (iii) Include the FDIC-supervised institution's self-assessment of:
    (A) The FDIC-supervised institution's current status in meeting the 
qualification requirements in Sec.  324.122; and
    (B) The consistency of the FDIC-supervised institution's current 
practices with the FDIC's supervisory guidance on the qualification 
requirements;
    (iv) Based on the FDIC-supervised institution's self-assessment, 
identify and describe the areas in which the FDIC-supervised 
institution proposes to undertake additional work to comply with the 
qualification requirements in Sec.  324.122 or to improve the 
consistency of the FDIC-supervised institution's current practices with 
the FDIC's supervisory guidance on the qualification requirements (gap 
analysis);
    (v) Describe what specific actions the FDIC-supervised institution 
will take to address the areas identified in the gap analysis required 
by paragraph (b)(1)(iv) of this section;
    (vi) Identify objective, measurable milestones, including delivery 
dates and a date when the FDIC-supervised institution's implementation 
of the methodologies described in this subpart will be fully 
operational;
    (vii) Describe resources that have been budgeted and are available 
to implement the plan; and
    (viii) Receive approval of the FDIC-supervised institution's board 
of directors.
    (2) The FDIC-supervised institution must submit the implementation 
plan, together with a copy of the minutes of the board of directors' 
approval, to the FDIC at least 60 days before the FDIC-supervised 
institution proposes to begin its parallel run, unless the FDIC waives 
prior notice.
    (c) Parallel run. Before determining its risk-weighted assets under 
this subpart and following adoption of the implementation plan, the 
FDIC-supervised institution must conduct a satisfactory parallel run. A 
satisfactory parallel run is a period of no less than four consecutive 
calendar quarters during which the FDIC-supervised institution complies 
with the qualification requirements in Sec.  324.122 to the 
satisfaction of the FDIC. During the parallel run, the FDIC-supervised 
institution must report to the FDIC on a calendar quarterly basis its 
risk-based capital ratios determined in accordance with Sec.  
324.10(b)(1) through (3) and Sec.  324.10(c)(1) through (3). During 
this period, the FDIC-supervised institution's minimum risk-based 
capital ratios are determined as set forth in subpart D of this part.
    (d) Approval to calculate risk-based capital requirements under 
this subpart. The FDIC will notify the FDIC-supervised institution of 
the date that the FDIC-supervised institution must begin to use this 
subpart for purposes of Sec.  324.10 if the FDIC determines that:
    (1) The FDIC-supervised institution fully complies with all the 
qualification requirements in Sec.  324.122;
    (2) The FDIC-supervised institution has conducted a satisfactory 
parallel run under paragraph (c) of this section; and
    (3) The FDIC-supervised institution has an adequate process to 
ensure ongoing compliance with the qualification requirements in Sec.  
324.122.


Sec.  324.122  Qualification requirements.

    (a) Process and systems requirements. (1) An FDIC-supervised 
institution must have a rigorous process for assessing its overall 
capital adequacy in relation to its risk profile and a comprehensive 
strategy for maintaining an appropriate level of capital.
    (2) The systems and processes used by an FDIC-supervised 
institution for risk-based capital purposes under this subpart must be 
consistent with the FDIC-supervised institution's internal risk 
management processes and management information reporting systems.
    (3) Each FDIC-supervised institution must have an appropriate 
infrastructure with risk measurement and management processes that meet 
the qualification requirements of this section and are appropriate 
given the FDIC-supervised institution's size and level of complexity. 
Regardless of whether the systems and models that generate the risk 
parameters necessary for calculating an FDIC-supervised institution's 
risk-based capital requirements are located at any affiliate of the 
FDIC-supervised institution, the FDIC-supervised institution itself 
must ensure that the risk parameters and reference data used to 
determine its risk-based capital requirements are representative of its 
own credit risk and operational risk exposures.
    (b) Risk rating and segmentation systems for wholesale and retail 
exposures. (1) An FDIC-supervised institution must have an internal 
risk rating and segmentation system that accurately and reliably 
differentiates among degrees of credit risk for the FDIC-supervised 
institution's wholesale and retail exposures.
    (2) For wholesale exposures:
    (i) An FDIC-supervised institution must have an internal risk 
rating system that accurately and reliably assigns each obligor to a 
single rating grade (reflecting the obligor's likelihood of default). 
An FDIC-supervised institution may elect, however, not to assign to a 
rating grade an obligor to whom the FDIC-supervised institution extends 
credit based solely on the financial strength of a guarantor, provided 
that all of the FDIC-supervised institution's exposures to the obligor 
are fully covered by eligible guarantees, the FDIC-supervised 
institution applies the PD substitution approach in Sec.  324.134(c)(1) 
to all exposures to that obligor, and the FDIC-supervised institution 
immediately assigns the obligor to a rating grade if a guarantee can no 
longer be recognized under this part. The FDIC-supervised institution's 
wholesale obligor rating system must have at least seven discrete 
rating grades for non-defaulted obligors and at least one rating grade 
for defaulted obligors.
    (ii) Unless the FDIC-supervised institution has chosen to directly 
assign LGD estimates to each wholesale exposure, the FDIC-supervised 
institution must have an internal risk rating system that accurately 
and reliably assigns each wholesale exposure to a loss severity rating 
grade (reflecting the FDIC-supervised institution's estimate of the LGD 
of the exposure). An FDIC-supervised institution employing loss 
severity rating grades must have a sufficiently granular loss severity 
grading system to

[[Page 55529]]

avoid grouping together exposures with widely ranging LGDs.
    (3) For retail exposures, an FDIC-supervised institution must have 
an internal system that groups retail exposures into the appropriate 
retail exposure subcategory, groups the retail exposures in each retail 
exposure subcategory into separate segments with homogeneous risk 
characteristics, and assigns accurate and reliable PD and LGD estimates 
for each segment on a consistent basis. The FDIC-supervised 
institution's system must identify and group in separate segments by 
subcategories exposures identified in Sec.  324.131(c)(2)(ii) and 
(iii).
    (4) The FDIC-supervised institution's internal risk rating policy 
for wholesale exposures must describe the FDIC-supervised institution's 
rating philosophy (that is, must describe how wholesale obligor rating 
assignments are affected by the FDIC-supervised institution's choice of 
the range of economic, business, and industry conditions that are 
considered in the obligor rating process).
    (5) The FDIC-supervised institution's internal risk rating system 
for wholesale exposures must provide for the review and update (as 
appropriate) of each obligor rating and (if applicable) each loss 
severity rating whenever the FDIC-supervised institution receives new 
material information, but no less frequently than annually. The FDIC-
supervised institution's retail exposure segmentation system must 
provide for the review and update (as appropriate) of assignments of 
retail exposures to segments whenever the FDIC-supervised institution 
receives new material information, but generally no less frequently 
than quarterly.
    (c) Quantification of risk parameters for wholesale and retail 
exposures. (1) The FDIC-supervised institution must have a 
comprehensive risk parameter quantification process that produces 
accurate, timely, and reliable estimates of the risk parameters for the 
FDIC-supervised institution's wholesale and retail exposures.
    (2) Data used to estimate the risk parameters must be relevant to 
the FDIC-supervised institution's actual wholesale and retail 
exposures, and of sufficient quality to support the determination of 
risk-based capital requirements for the exposures.
    (3) The FDIC-supervised institution's risk parameter quantification 
process must produce appropriately conservative risk parameter 
estimates where the FDIC-supervised institution has limited relevant 
data, and any adjustments that are part of the quantification process 
must not result in a pattern of bias toward lower risk parameter 
estimates.
    (4) The FDIC-supervised institution's risk parameter estimation 
process should not rely on the possibility of U.S. government financial 
assistance, except for the financial assistance that the U.S. 
government has a legally binding commitment to provide.
    (5) Where the FDIC-supervised institution's quantifications of LGD 
directly or indirectly incorporate estimates of the effectiveness of 
its credit risk management practices in reducing its exposure to 
troubled obligors prior to default, the FDIC-supervised institution 
must support such estimates with empirical analysis showing that the 
estimates are consistent with its historical experience in dealing with 
such exposures during economic downturn conditions.
    (6) PD estimates for wholesale obligors and retail segments must be 
based on at least five years of default data. LGD estimates for 
wholesale exposures must be based on at least seven years of loss 
severity data, and LGD estimates for retail segments must be based on 
at least five years of loss severity data. EAD estimates for wholesale 
exposures must be based on at least seven years of exposure amount 
data, and EAD estimates for retail segments must be based on at least 
five years of exposure amount data.
    (7) Default, loss severity, and exposure amount data must include 
periods of economic downturn conditions, or the FDIC-supervised 
institution must adjust its estimates of risk parameters to compensate 
for the lack of data from periods of economic downturn conditions.
    (8) The FDIC-supervised institution's PD, LGD, and EAD estimates 
must be based on the definition of default in Sec.  324.101.
    (9) The FDIC-supervised institution must review and update (as 
appropriate) its risk parameters and its risk parameter quantification 
process at least annually.
    (10) The FDIC-supervised institution must, at least annually, 
conduct a comprehensive review and analysis of reference data to 
determine relevance of reference data to the FDIC-supervised 
institution's exposures, quality of reference data to support PD, LGD, 
and EAD estimates, and consistency of reference data to the definition 
of default in Sec.  324.101.
    (d) Counterparty credit risk model. An FDIC-supervised institution 
must obtain the prior written approval of the FDIC under Sec.  324.132 
to use the internal models methodology for counterparty credit risk and 
the advanced CVA approach for the CVA capital requirement.
    (e) Double default treatment. An FDIC-supervised institution must 
obtain the prior written approval of the FDIC under Sec.  324.135 to 
use the double default treatment.
    (f) Equity exposures model. An FDIC-supervised institution must 
obtain the prior written approval of the FDIC under Sec.  324.153 to 
use the internal models approach for equity exposures.
    (g) Operational risk. (1) Operational risk management processes. An 
FDIC-supervised institution must:
    (i) Have an operational risk management function that:
    (A) Is independent of business line management; and
    (B) Is responsible for designing, implementing, and overseeing the 
FDIC-supervised institution's operational risk data and assessment 
systems, operational risk quantification systems, and related 
processes;
    (ii) Have and document a process (which must capture business 
environment and internal control factors affecting the FDIC-supervised 
institution's operational risk profile) to identify, measure, monitor, 
and control operational risk in the FDIC-supervised institution's 
products, activities, processes, and systems; and
    (iii) Report operational risk exposures, operational loss events, 
and other relevant operational risk information to business unit 
management, senior management, and the board of directors (or a 
designated committee of the board).
    (2) Operational risk data and assessment systems. An FDIC-
supervised institution must have operational risk data and assessment 
systems that capture operational risks to which the FDIC-supervised 
institution is exposed. The FDIC-supervised institution's operational 
risk data and assessment systems must:
    (i) Be structured in a manner consistent with the FDIC-supervised 
institution's current business activities, risk profile, technological 
processes, and risk management processes; and
    (ii) Include credible, transparent, systematic, and verifiable 
processes that incorporate the following elements on an ongoing basis:
    (A) Internal operational loss event data. The FDIC-supervised 
institution must have a systematic process for capturing and using 
internal operational loss event data in its operational risk data and 
assessment systems.
    (1) The FDIC-supervised institution's operational risk data and 
assessment systems must include a historical observation period of at 
least five years

[[Page 55530]]

for internal operational loss event data (or such shorter period 
approved by the FDIC to address transitional situations, such as 
integrating a new business line).
    (2) The FDIC-supervised institution must be able to map its 
internal operational loss event data into the seven operational loss 
event type categories.
    (3) The FDIC-supervised institution may refrain from collecting 
internal operational loss event data for individual operational losses 
below established dollar threshold amounts if the FDIC-supervised 
institution can demonstrate to the satisfaction of the FDIC that the 
thresholds are reasonable, do not exclude important internal 
operational loss event data, and permit the FDIC-supervised institution 
to capture substantially all the dollar value of the FDIC-supervised 
institution's operational losses.
    (B) External operational loss event data. The FDIC-supervised 
institution must have a systematic process for determining its 
methodologies for incorporating external operational loss event data 
into its operational risk data and assessment systems.
    (C) Scenario analysis. The FDIC-supervised institution must have a 
systematic process for determining its methodologies for incorporating 
scenario analysis into its operational risk data and assessment 
systems.
    (D) Business environment and internal control factors. The FDIC-
supervised institution must incorporate business environment and 
internal control factors into its operational risk data and assessment 
systems. The FDIC-supervised institution must also periodically compare 
the results of its prior business environment and internal control 
factor assessments against its actual operational losses incurred in 
the intervening period.
    (3) Operational risk quantification systems. (i) The FDIC-
supervised institution's operational risk quantification systems:
    (A) Must generate estimates of the FDIC-supervised institution's 
operational risk exposure using its operational risk data and 
assessment systems;
    (B) Must employ a unit of measure that is appropriate for the FDIC-
supervised institution's range of business activities and the variety 
of operational loss events to which it is exposed, and that does not 
combine business activities or operational loss events with 
demonstrably different risk profiles within the same loss distribution;
    (C) Must include a credible, transparent, systematic, and 
verifiable approach for weighting each of the four elements, described 
in paragraph (g)(2)(ii) of this section, that an FDIC-supervised 
institution is required to incorporate into its operational risk data 
and assessment systems;
    (D) May use internal estimates of dependence among operational 
losses across and within units of measure if the FDIC-supervised 
institution can demonstrate to the satisfaction of the FDIC that its 
process for estimating dependence is sound, robust to a variety of 
scenarios, and implemented with integrity, and allows for uncertainty 
surrounding the estimates. If the FDIC-supervised institution has not 
made such a demonstration, it must sum operational risk exposure 
estimates across units of measure to calculate its total operational 
risk exposure; and
    (E) Must be reviewed and updated (as appropriate) whenever the 
FDIC-supervised institution becomes aware of information that may have 
a material effect on the FDIC-supervised institution's estimate of 
operational risk exposure, but the review and update must occur no less 
frequently than annually.
    (ii) With the prior written approval of the FDIC, an FDIC-
supervised institution may generate an estimate of its operational risk 
exposure using an alternative approach to that specified in paragraph 
(g)(3)(i) of this section. An FDIC-supervised institution proposing to 
use such an alternative operational risk quantification system must 
submit a proposal to the FDIC. In determining whether to approve an 
FDIC-supervised institution's proposal to use an alternative 
operational risk quantification system, the FDIC will consider the 
following principles:
    (A) Use of the alternative operational risk quantification system 
will be allowed only on an exception basis, considering the size, 
complexity, and risk profile of the FDIC-supervised institution;
    (B) The FDIC-supervised institution must demonstrate that its 
estimate of its operational risk exposure generated under the 
alternative operational risk quantification system is appropriate and 
can be supported empirically; and
    (C) An FDIC-supervised institution must not use an allocation of 
operational risk capital requirements that includes entities other than 
depository institutions or the benefits of diversification across 
entities.
    (h) Data management and maintenance. (1) An FDIC-supervised 
institution must have data management and maintenance systems that 
adequately support all aspects of its advanced systems and the timely 
and accurate reporting of risk-based capital requirements.
    (2) An FDIC-supervised institution must retain data using an 
electronic format that allows timely retrieval of data for analysis, 
validation, reporting, and disclosure purposes.
    (3) An FDIC-supervised institution must retain sufficient data 
elements related to key risk drivers to permit adequate monitoring, 
validation, and refinement of its advanced systems.
    (i) Control, oversight, and validation mechanisms. (1) The FDIC-
supervised institution's senior management must ensure that all 
components of the FDIC-supervised institution's advanced systems 
function effectively and comply with the qualification requirements in 
this section.
    (2) The FDIC-supervised institution's board of directors (or a 
designated committee of the board) must at least annually review the 
effectiveness of, and approve, the FDIC-supervised institution's 
advanced systems.
    (3) An FDIC-supervised institution must have an effective system of 
controls and oversight that:
    (i) Ensures ongoing compliance with the qualification requirements 
in this section;
    (ii) Maintains the integrity, reliability, and accuracy of the 
FDIC-supervised institution's advanced systems; and
    (iii) Includes adequate governance and project management 
processes.
    (4) The FDIC-supervised institution must validate, on an ongoing 
basis, its advanced systems. The FDIC-supervised institution's 
validation process must be independent of the advanced systems' 
development, implementation, and operation, or the validation process 
must be subjected to an independent review of its adequacy and 
effectiveness. Validation must include:
    (i) An evaluation of the conceptual soundness of (including 
developmental evidence supporting) the advanced systems;
    (ii) An ongoing monitoring process that includes verification of 
processes and benchmarking; and
    (iii) An outcomes analysis process that includes backtesting.
    (5) The FDIC-supervised institution must have an internal audit 
function independent of business-line management that at least annually 
assesses the effectiveness of the controls supporting the FDIC-
supervised institution's advanced systems and reports its findings to 
the FDIC-supervised institution's board of directors (or a committee 
thereof).
    (6) The FDIC-supervised institution must periodically stress test 
its advanced systems. The stress testing

[[Page 55531]]

must include a consideration of how economic cycles, especially 
downturns, affect risk-based capital requirements (including migration 
across rating grades and segments and the credit risk mitigation 
benefits of double default treatment).
    (j) Documentation. The FDIC-supervised institution must adequately 
document all material aspects of its advanced systems.


Sec.  324.123  Ongoing qualification.

    (a) Changes to advanced systems. An FDIC-supervised institution 
must meet all the qualification requirements in Sec.  324.122 on an 
ongoing basis. An FDIC-supervised institution must notify the FDIC when 
the FDIC-supervised institution makes any change to an advanced system 
that would result in a material change in the FDIC-supervised 
institution's advanced approaches total risk-weighted asset amount for 
an exposure type or when the FDIC-supervised institution makes any 
significant change to its modeling assumptions.
    (b) Failure to comply with qualification requirements. (1) If the 
FDIC determines that an FDIC-supervised institution that uses this 
subpart and that has conducted a satisfactory parallel run fails to 
comply with the qualification requirements in Sec.  324.122, the FDIC 
will notify the FDIC-supervised institution in writing of the FDIC-
supervised institution's failure to comply.
    (2) The FDIC-supervised institution must establish and submit a 
plan satisfactory to the FDIC to return to compliance with the 
qualification requirements.
    (3) In addition, if the FDIC determines that the FDIC-supervised 
institution's advanced approaches total risk-weighted assets are not 
commensurate with the FDIC-supervised institution's credit, market, 
operational, or other risks, the FDIC may require such an FDIC-
supervised institution to calculate its advanced approaches total risk-
weighted assets with any modifications provided by the FDIC.


Sec.  324.124  Merger and acquisition transitional arrangements.

    (a) Mergers and acquisitions of companies without advanced systems. 
If an FDIC-supervised institution merges with or acquires a company 
that does not calculate its risk-based capital requirements using 
advanced systems, the FDIC-supervised institution may use subpart D of 
this part to determine the risk-weighted asset amounts for the merged 
or acquired company's exposures for up to 24 months after the calendar 
quarter during which the merger or acquisition consummates. The FDIC 
may extend this transition period for up to an additional 12 months. 
Within 90 days of consummating the merger or acquisition, the FDIC-
supervised institution must submit to the FDIC an implementation plan 
for using its advanced systems for the acquired company. During the 
period in which subpart D of this part applies to the merged or 
acquired company, any ALLL, net of allocated transfer risk reserves 
established pursuant to 12 U.S.C. 3904, associated with the merged or 
acquired company's exposures may be included in the acquiring FDIC-
supervised institution's tier 2 capital up to 1.25 percent of the 
acquired company's risk-weighted assets. All general allowances of the 
merged or acquired company must be excluded from the FDIC-supervised 
institution's eligible credit reserves. In addition, the risk-weighted 
assets of the merged or acquired company are not included in the FDIC-
supervised institution's credit-risk-weighted assets but are included 
in total risk-weighted assets. If an FDIC-supervised institution relies 
on this paragraph, the FDIC-supervised institution must disclose 
publicly the amounts of risk-weighted assets and qualifying capital 
calculated under this subpart for the acquiring FDIC-supervised 
institution and under subpart D of this part for the acquired company.
    (b) Mergers and acquisitions of companies with advanced systems. 
(1) If an FDIC-supervised institution merges with or acquires a company 
that calculates its risk-based capital requirements using advanced 
systems, the FDIC-supervised institution may use the acquired company's 
advanced systems to determine total risk-weighted assets for the merged 
or acquired company's exposures for up to 24 months after the calendar 
quarter during which the acquisition or merger consummates. The FDIC 
may extend this transition period for up to an additional 12 months. 
Within 90 days of consummating the merger or acquisition, the FDIC-
supervised institution must submit to the FDIC an implementation plan 
for using its advanced systems for the merged or acquired company.
    (2) If the acquiring FDIC-supervised institution is not subject to 
the advanced approaches in this subpart at the time of acquisition or 
merger, during the period when subpart D of this part applies to the 
acquiring FDIC-supervised institution, the ALLL associated with the 
exposures of the merged or acquired company may not be directly 
included in tier 2 capital. Rather, any excess eligible credit reserves 
associated with the merged or acquired company's exposures may be 
included in the FDIC-supervised institution's tier 2 capital up to 0.6 
percent of the credit-risk-weighted assets associated with those 
exposures.


Sec. Sec.  324.125 through 324.130   [Reserved]

Risk-Weighted Assets for General Credit Risk


Sec.  324.131  Mechanics for calculating total wholesale and retail 
risk-weighted assets.

    (a) Overview. An FDIC-supervised institution must calculate its 
total wholesale and retail risk-weighted asset amount in four distinct 
phases:
    (1) Phase 1--categorization of exposures;
    (2) Phase 2--assignment of wholesale obligors and exposures to 
rating grades and segmentation of retail exposures;
    (3) Phase 3--assignment of risk parameters to wholesale exposures 
and segments of retail exposures; and
    (4) Phase 4--calculation of risk-weighted asset amounts.
    (b) Phase 1--Categorization. The FDIC-supervised institution must 
determine which of its exposures are wholesale exposures, retail 
exposures, securitization exposures, or equity exposures. The FDIC-
supervised institution must categorize each retail exposure as a 
residential mortgage exposure, a QRE, or an other retail exposure. The 
FDIC-supervised institution must identify which wholesale exposures are 
HVCRE exposures, sovereign exposures, OTC derivative contracts, repo-
style transactions, eligible margin loans, eligible purchased wholesale 
exposures, cleared transactions, default fund contributions, unsettled 
transactions to which Sec.  324.136 applies, and eligible guarantees or 
eligible credit derivatives that are used as credit risk mitigants. The 
FDIC-supervised institution must identify any on-balance sheet asset 
that does not meet the definition of a wholesale, retail, equity, or 
securitization exposure, as well as any non-material portfolio of 
exposures described in paragraph (e)(4) of this section.
    (c) Phase 2--Assignment of wholesale obligors and exposures to 
rating grades and retail exposures to segments--(1) Assignment of 
wholesale obligors and exposures to rating grades.
    (i) The FDIC-supervised institution must assign each obligor of a 
wholesale exposure to a single obligor rating grade and must assign 
each wholesale exposure to which it does not directly

[[Page 55532]]

assign an LGD estimate to a loss severity rating grade.
    (ii) The FDIC-supervised institution must identify which of its 
wholesale obligors are in default.
    (2) Segmentation of retail exposures. (i) The FDIC-supervised 
institution must group the retail exposures in each retail subcategory 
into segments that have homogeneous risk characteristics.
    (ii) The FDIC-supervised institution must identify which of its 
retail exposures are in default. The FDIC-supervised institution must 
segment defaulted retail exposures separately from non-defaulted retail 
exposures.
    (iii) If the FDIC-supervised institution determines the EAD for 
eligible margin loans using the approach in Sec.  324.132(b), the FDIC-
supervised institution must identify which of its retail exposures are 
eligible margin loans for which the FDIC-supervised institution uses 
this EAD approach and must segment such eligible margin loans 
separately from other retail exposures.
    (3) Eligible purchased wholesale exposures. An FDIC-supervised 
institution may group its eligible purchased wholesale exposures into 
segments that have homogeneous risk characteristics. An FDIC-supervised 
institution must use the wholesale exposure formula in Table 1 of this 
section to determine the risk-based capital requirement for each 
segment of eligible purchased wholesale exposures.
    (d) Phase 3--Assignment of risk parameters to wholesale exposures 
and segments of retail exposures. (1) Quantification process. Subject 
to the limitations in this paragraph (d), the FDIC-supervised 
institution must:
    (i) Associate a PD with each wholesale obligor rating grade;
    (ii) Associate an LGD with each wholesale loss severity rating 
grade or assign an LGD to each wholesale exposure;
    (iii) Assign an EAD and M to each wholesale exposure; and
    (iv) Assign a PD, LGD, and EAD to each segment of retail exposures.
    (2) Floor on PD assignment. The PD for each wholesale obligor or 
retail segment may not be less than 0.03 percent, except for exposures 
to or directly and unconditionally guaranteed by a sovereign entity, 
the Bank for International Settlements, the International Monetary 
Fund, the European Commission, the European Central Bank, or a 
multilateral development bank, to which the FDIC-supervised institution 
assigns a rating grade associated with a PD of less than 0.03 percent.
    (3) Floor on LGD estimation. The LGD for each segment of 
residential mortgage exposures may not be less than 10 percent, except 
for segments of residential mortgage exposures for which all or 
substantially all of the principal of each exposure is either:
    (i) Directly and unconditionally guaranteed by the full faith and 
credit of a sovereign entity; or
    (ii) Guaranteed by a contingent obligation of the U.S. government 
or its agencies, the enforceability of which is dependent upon some 
affirmative action on the part of the beneficiary of the guarantee or a 
third party (for example, meeting servicing requirements).
    (4) Eligible purchased wholesale exposures. An FDIC-supervised 
institution must assign a PD, LGD, EAD, and M to each segment of 
eligible purchased wholesale exposures. If the FDIC-supervised 
institution can estimate ECL (but not PD or LGD) for a segment of 
eligible purchased wholesale exposures, the FDIC-supervised institution 
must assume that the LGD of the segment equals 100 percent and that the 
PD of the segment equals ECL divided by EAD. The estimated ECL must be 
calculated for the exposures without regard to any assumption of 
recourse or guarantees from the seller or other parties.
    (5) Credit risk mitigation: credit derivatives, guarantees, and 
collateral. (i) An FDIC-supervised institution may take into account 
the risk reducing effects of eligible guarantees and eligible credit 
derivatives in support of a wholesale exposure by applying the PD 
substitution or LGD adjustment treatment to the exposure as provided in 
Sec.  324.134 or, if applicable, applying double default treatment to 
the exposure as provided in Sec.  324.135. An FDIC-supervised 
institution may decide separately for each wholesale exposure that 
qualifies for the double default treatment under Sec.  324.135 whether 
to apply the double default treatment or to use the PD substitution or 
LGD adjustment treatment without recognizing double default effects.
    (ii) An FDIC-supervised institution may take into account the risk 
reducing effects of guarantees and credit derivatives in support of 
retail exposures in a segment when quantifying the PD and LGD of the 
segment.
    (iii) Except as provided in paragraph (d)(6) of this section, an 
FDIC-supervised institution may take into account the risk reducing 
effects of collateral in support of a wholesale exposure when 
quantifying the LGD of the exposure, and may take into account the risk 
reducing effects of collateral in support of retail exposures when 
quantifying the PD and LGD of the segment.
    (6) EAD for OTC derivative contracts, repo-style transactions, and 
eligible margin loans. An FDIC-supervised institution must calculate 
its EAD for an OTC derivative contract as provided in Sec.  324.132 (c) 
and (d). An FDIC-supervised institution may take into account the risk-
reducing effects of financial collateral in support of a repo-style 
transaction or eligible margin loan and of any collateral in support of 
a repo-style transaction that is included in the FDIC-supervised 
institution's VaR-based measure under subpart F of this part through an 
adjustment to EAD as provided in Sec.  324.132(b) and (d). An FDIC-
supervised institution that takes collateral into account through such 
an adjustment to EAD under Sec.  324.132 may not reflect such 
collateral in LGD.
    (7) Effective maturity. An exposure's M must be no greater than 
five years and no less than one year, except that an exposure's M must 
be no less than one day if the exposure is a trade related letter of 
credit, or if the exposure has an original maturity of less than one 
year and is not part of an FDIC-supervised institution's ongoing 
financing of the obligor. An exposure is not part of an FDIC-supervised 
institution's ongoing financing of the obligor if the FDIC-supervised 
institution:
    (i) Has a legal and practical ability not to renew or roll over the 
exposure in the event of credit deterioration of the obligor;
    (ii) Makes an independent credit decision at the inception of the 
exposure and at every renewal or roll over; and
    (iii) Has no substantial commercial incentive to continue its 
credit relationship with the obligor in the event of credit 
deterioration of the obligor.
    (8) EAD for exposures to certain central counterparties. An FDIC-
supervised institution may attribute an EAD of zero to exposures that 
arise from the settlement of cash transactions (such as equities, fixed 
income, spot foreign exchange, and spot commodities) with a central 
counterparty where there is no assumption of ongoing counterparty 
credit risk by the central counterparty after settlement of the trade 
and associated default fund contributions.
    (e) Phase 4--Calculation of risk-weighted assets. (1) Non-defaulted 
exposures.
    (i) An FDIC-supervised institution must calculate the dollar risk-
based capital requirement for each of its wholesale exposures to a non-
defaulted obligor (except for eligible guarantees and eligible credit 
derivatives that

[[Page 55533]]

hedge another wholesale exposure, IMM exposures, cleared transactions, 
default fund contributions, unsettled transactions, and exposures to 
which the FDIC-supervised institution applies the double default 
treatment in Sec.  324.135) and segments of non-defaulted retail 
exposures by inserting the assigned risk parameters for the wholesale 
obligor and exposure or retail segment into the appropriate risk-based 
capital formula specified in Table 1 to Sec.  324.131 and multiplying 
the output of the formula (K) by the EAD of the exposure or segment. 
Alternatively, an FDIC-supervised institution may apply a 300 percent 
risk weight to the EAD of an eligible margin loan if the FDIC-
supervised institution is not able to meet the FDIC's requirements for 
estimation of PD and LGD for the margin loan.

[[Page 55534]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.024


[[Page 55535]]


[GRAPHIC] [TIFF OMITTED] TR10SE13.025

BILLING CODE 6714-01-P
    (ii) The sum of all the dollar risk-based capital requirements for 
each wholesale exposure to a non-defaulted obligor and segment of non-
defaulted retail exposures calculated in paragraph (e)(1)(i) of this 
section and in Sec.  324.135(e) equals the total dollar risk-based 
capital requirement for those exposures and segments.
    (iii) The aggregate risk-weighted asset amount for wholesale 
exposures to non-defaulted obligors and segments of non-defaulted 
retail exposures equals the total dollar risk-based capital requirement 
in paragraph (e)(1)(ii) of this section multiplied by 12.5.
    (2) Wholesale exposures to defaulted obligors and segments of 
defaulted retail exposures--(i) Not covered by an eligible U.S. 
government guarantee: The dollar risk-based capital requirement for 
each wholesale exposure not covered by an eligible guarantee from the 
U.S. government to a defaulted obligor and each segment of defaulted 
retail exposures not covered by an eligible guarantee from the U.S. 
government equals 0.08 multiplied by the EAD of the exposure or 
segment.
    (ii) Covered by an eligible U.S. government guarantee: The dollar 
risk-based capital requirement for each wholesale exposure to a 
defaulted obligor covered by an eligible guarantee from the U.S. 
government and each segment of defaulted retail exposures covered by an 
eligible guarantee from the U.S. government equals the sum of:
    (A) The sum of the EAD of the portion of each wholesale exposure to 
a defaulted obligor covered by an eligible guarantee from the U.S. 
government plus the EAD of the portion of each segment of defaulted 
retail exposures that is covered by an eligible guarantee from the U.S. 
government and the resulting sum is multiplied by 0.016, and
    (B) The sum of the EAD of the portion of each wholesale exposure to 
a defaulted obligor not covered by an eligible guarantee from the U.S. 
government plus the EAD of the portion of each segment of defaulted 
retail exposures that is not covered by an eligible guarantee from the 
U.S. government and the resulting sum is multiplied by 0.08.
    (iii) The sum of all the dollar risk-based capital requirements for 
each

[[Page 55536]]

wholesale exposure to a defaulted obligor and each segment of defaulted 
retail exposures calculated in paragraph (e)(2)(i) of this section plus 
the dollar risk-based capital requirements each wholesale exposure to a 
defaulted obligor and for each segment of defaulted retail exposures 
calculated in paragraph (e)(2)(ii) of this section equals the total 
dollar risk-based capital requirement for those exposures and segments.
    (iv) The aggregate risk-weighted asset amount for wholesale 
exposures to defaulted obligors and segments of defaulted retail 
exposures equals the total dollar risk-based capital requirement 
calculated in paragraph (e)(2)(iii) of this section multiplied by 12.5.
    (3) Assets not included in a defined exposure category. (i) An 
FDIC-supervised institution may assign a risk-weighted asset amount of 
zero to cash owned and held in all offices of the FDIC-supervised 
institution or in transit and for gold bullion held in the FDIC-
supervised institution's own vaults, or held in another depository 
institution's vaults on an allocated basis, to the extent the gold 
bullion assets are offset by gold bullion liabilities.
    (ii) An FDIC-supervised institution must assign a risk-weighted 
asset amount equal to 20 percent of the carrying value of cash items in 
the process of collection.
    (iii) An FDIC-supervised institution must assign a risk-weighted 
asset amount equal to 50 percent of the carrying value to a pre-sold 
construction loan unless the purchase contract is cancelled, in which 
case an FDIC-supervised institution must assign a risk-weighted asset 
amount equal to a 100 percent of the carrying value of the pre-sold 
construction loan.
    (iv) The risk-weighted asset amount for the residual value of a 
retail lease exposure equals such residual value.
    (v) The risk-weighted asset amount for DTAs arising from temporary 
differences that the FDIC-supervised institution could realize through 
net operating loss carrybacks equals the carrying value, netted in 
accordance with Sec.  324.22.
    (vi) The risk-weighted asset amount for MSAs, DTAs arising from 
temporary timing differences that the FDIC-supervised institution could 
not realize through net operating loss carrybacks, and significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock that are not deducted pursuant to Sec.  
324.22(a)(7) equals the amount not subject to deduction multiplied by 
250 percent.
    (vii) The risk-weighted asset amount for any other on-balance-sheet 
asset that does not meet the definition of a wholesale, retail, 
securitization, IMM, or equity exposure, cleared transaction, or 
default fund contribution and is not subject to deduction under Sec.  
324.22(a), (c), or (d) equals the carrying value of the asset.
    (4) Non-material portfolios of exposures. The risk-weighted asset 
amount of a portfolio of exposures for which the FDIC-supervised 
institution has demonstrated to the FDIC's satisfaction that the 
portfolio (when combined with all other portfolios of exposures that 
the FDIC-supervised institution seeks to treat under this paragraph) is 
not material to the FDIC-supervised institution is the sum of the 
carrying values of on-balance sheet exposures plus the notional amounts 
of off-balance sheet exposures in the portfolio. For purposes of this 
paragraph (e)(4), the notional amount of an OTC derivative contract 
that is not a credit derivative is the EAD of the derivative as 
calculated in Sec.  324.132.


Sec.  324.132  Counterparty credit risk of repo-style transactions, 
eligible margin loans, and OTC derivative contracts.

    (a) Methodologies for collateral recognition. (1) Instead of an LGD 
estimation methodology, an FDIC-supervised institution may use the 
following methodologies to recognize the benefits of financial 
collateral in mitigating the counterparty credit risk of repo-style 
transactions, eligible margin loans, collateralized OTC derivative 
contracts and single product netting sets of such transactions, and to 
recognize the benefits of any collateral in mitigating the counterparty 
credit risk of repo-style transactions that are included in an FDIC-
supervised institution's VaR-based measure under subpart F of this 
part:
    (i) The collateral haircut approach set forth in paragraph (b)(2) 
of this section;
    (ii) The internal models methodology set forth in paragraph (d) of 
this section; and
    (iii) For single product netting sets of repo-style transactions 
and eligible margin loans, the simple VaR methodology set forth in 
paragraph (b)(3) of this section.
    (2) An FDIC-supervised institution may use any combination of the 
three methodologies for collateral recognition; however, it must use 
the same methodology for transactions in the same category.
    (3) An FDIC-supervised institution must use the methodology in 
paragraph (c) of this section, or with prior written approval of the 
FDIC, the internal model methodology in paragraph (d) of this section, 
to calculate EAD for an OTC derivative contract or a set of OTC 
derivative contracts subject to a qualifying master netting agreement. 
To estimate EAD for qualifying cross-product master netting agreements, 
an FDIC-supervised institution may only use the internal models 
methodology in paragraph (d) of this section.
    (4) An FDIC-supervised institution must also use the methodology in 
paragraph (e) of this section to calculate the risk-weighted asset 
amounts for CVA for OTC derivatives.
    (b) EAD for eligible margin loans and repo-style transactions. (1) 
General. An FDIC-supervised institution may recognize the credit risk 
mitigation benefits of financial collateral that secures an eligible 
margin loan, repo-style transaction, or single-product netting set of 
such transactions by factoring the collateral into its LGD estimates 
for the exposure. Alternatively, an FDIC-supervised institution may 
estimate an unsecured LGD for the exposure, as well as for any repo-
style transaction that is included in the FDIC-supervised institution's 
VaR-based measure under subpart F of this part, and determine the EAD 
of the exposure using:
    (i) The collateral haircut approach described in paragraph (b)(2) 
of this section;
    (ii) For netting sets only, the simple VaR methodology described in 
paragraph (b)(3) of this section; or
    (iii) The internal models methodology described in paragraph (d) of 
this section.
    (2) Collateral haircut approach--(i) EAD equation. An FDIC-
supervised institution may determine EAD for an eligible margin loan, 
repo-style transaction, or netting set by setting EAD equal to max {0, 
[([Sigma]E-[Sigma]C) + [Sigma](Es x Hs) + 
[Sigma](Efx x Hfx)]{time} , where:
    (A) [Sigma]E equals the value of the exposure (the sum of the 
current fair values of all instruments, gold, and cash the FDIC-
supervised institution has lent, sold subject to repurchase, or posted 
as collateral to the counterparty under the transaction (or netting 
set));
    (B) [Sigma]C equals the value of the collateral (the sum of the 
current fair values of all instruments, gold, and cash the FDIC-
supervised institution has borrowed, purchased subject to resale, or 
taken as collateral from the counterparty under the transaction (or 
netting set));
    (C) Es equals the absolute value of the net position in 
a given instrument or in gold (where the net position in a given 
instrument or in gold equals the sum of the current fair values of the 
instrument

[[Page 55537]]

or gold the FDIC-supervised institution has lent, sold subject to 
repurchase, or posted as collateral to the counterparty minus the sum 
of the current fair values of that same instrument or gold the FDIC-
supervised institution has borrowed, purchased subject to resale, or 
taken as collateral from the counterparty);
    (D) Hs equals the market price volatility haircut 
appropriate to the instrument or gold referenced in Es;
    (E) Efx equals the absolute value of the net position of 
instruments and cash in a currency that is different from the 
settlement currency (where the net position in a given currency equals 
the sum of the current fair values of any instruments or cash in the 
currency the FDIC-supervised institution has lent, sold subject to 
repurchase, or posted as collateral to the counterparty minus the sum 
of the current fair values of any instruments or cash in the currency 
the FDIC-supervised institution has borrowed, purchased subject to 
resale, or taken as collateral from the counterparty); and
    (F) Hfx equals the haircut appropriate to the mismatch 
between the currency referenced in Efx and the settlement 
currency.
    (ii) Standard supervisory haircuts. (A) Under the standard 
supervisory haircuts approach:
    (1) An FDIC-supervised institution must use the haircuts for market 
price volatility (Hs) in Table 1 to Sec.  324.132, as 
adjusted in certain circumstances as provided in paragraphs 
(b)(2)(ii)(A)(3) and (4) of this section;

                                  Table 1 to Sec.   324.132--Standard Supervisory Market Price Volatility Haircuts \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Haircut (in percent) assigned based on:
                                                              ------------------------------------------------------------------------
                                                                  Sovereign issuers risk weight     Non-sovereign issuers risk weight   Investment grade
                      Residual maturity                            under this section \2\ (in        under this section (in percent)     securitization
                                                                            percent)              ------------------------------------   exposures (in
                                                              ------------------------------------                                          percent)
                                                                  Zero      20 or 50       100         20          50          100
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than or equal to 1 year.................................         0.5         1.0        15.0         1.0         2.0         4.0                4.0
Greater than 1 year and less than or equal to 5 years........         2.0         3.0        15.0         4.0         6.0         8.0               12.0
Greater than 5 years.........................................         4.0         6.0        15.0         8.0        12.0        16.0               24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Main index equities (including convertible bonds) and gold..........................15.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other publicly traded equities (including convertible bonds)........................25.0.........
Mutual funds....................................................Highest haircut applicable to any security in
                                                                         which the fund can invest.
Cash collateral held................................................................Zero.........
Other exposure types................................................................25.0.........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The market price volatility haircuts in Table 1 to Sec.   324.132 are based on a 10 business-day holding period.
\2\ Includes a foreign PSE that receives a zero percent risk weight.

    (2) For currency mismatches, an FDIC-supervised institution must 
use a haircut for foreign exchange rate volatility (Hfx) of 
8 percent, as adjusted in certain circumstances as provided in 
paragraphs (b)(2)(ii)(A)(3) and (4) of this section.
    (3) For repo-style transactions, an FDIC-supervised institution may 
multiply the supervisory haircuts provided in paragraphs 
(b)(2)(ii)(A)(1) and (2) of this section by the square root of \1/2\ 
(which equals 0.707107).
    (4) An FDIC-supervised institution must adjust the supervisory 
haircuts upward on the basis of a holding period longer than ten 
business days (for eligible margin loans) or five business days (for 
repo-style transactions) where the following conditions apply. If the 
number of trades in a netting set exceeds 5,000 at any time during a 
quarter, an FDIC-supervised institution must adjust the supervisory 
haircuts upward on the basis of a holding period of twenty business 
days for the following quarter (except when an FDIC-supervised 
institution is calculating EAD for a cleared transaction under Sec.  
324.133). If a netting set contains one or more trades involving 
illiquid collateral or an OTC derivative that cannot be easily 
replaced, an FDIC-supervised institution must adjust the supervisory 
haircuts upward on the basis of a holding period of twenty business 
days. If over the two previous quarters more than two margin disputes 
on a netting set have occurred that lasted more than the holding 
period, then the FDIC-supervised institution must adjust the 
supervisory haircuts upward for that netting set on the basis of a 
holding period that is at least two times the minimum holding period 
for that netting set. An FDIC-supervised institution must adjust the 
standard supervisory haircuts upward using the following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.026

(i) TM equals a holding period of longer than 10 business 
days for eligible margin loans and derivative contracts or longer 
than 5 business days for repo-style transactions;
(ii) Hs equals the standard supervisory haircut; and
(iii) Ts equals 10 business days for eligible margin 
loans and derivative contracts or 5 business days for repo-style 
transactions.

    (5) If the instrument an FDIC-supervised institution has lent, sold 
subject to repurchase, or posted as collateral does not meet the 
definition of financial collateral, the FDIC-supervised institution 
must use a 25.0 percent haircut for market price volatility (Hs).
    (iii) Own internal estimates for haircuts. With the prior written 
approval of the FDIC, an FDIC-supervised institution may calculate 
haircuts (Hs and Hfx) using its own internal 
estimates of the volatilities of market prices and foreign exchange 
rates.
    (A) To receive FDIC approval to use its own internal estimates, an 
FDIC-supervised institution must satisfy the following minimum 
quantitative standards:
    (1) An FDIC-supervised institution must use a 99th percentile one-
tailed confidence interval.
    (2) The minimum holding period for a repo-style transaction is five 
business days and for an eligible margin loan is

[[Page 55538]]

ten business days except for transactions or netting sets for which 
paragraph (b)(2)(iii)(A)(3) of this section applies. When an FDIC-
supervised institution calculates an own-estimates haircut on a 
TN-day holding period, which is different from the minimum 
holding period for the transaction type, the applicable haircut 
(HM) is calculated using the following square root of time 
formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.027

(i) TM equals 5 for repo-style transactions and 10 for 
eligible margin loans;
(ii) TN equals the holding period used by the FDIC-
supervised institution to derive HN; and
(iii) HN equals the haircut based on the holding period 
TN.

    (3) If the number of trades in a netting set exceeds 5,000 at any 
time during a quarter, an FDIC-supervised institution must calculate 
the haircut using a minimum holding period of twenty business days for 
the following quarter (except when an FDIC-supervised institution is 
calculating EAD for a cleared transaction under Sec.  324.133). If a 
netting set contains one or more trades involving illiquid collateral 
or an OTC derivative that cannot be easily replaced, an FDIC-supervised 
institution must calculate the haircut using a minimum holding period 
of twenty business days. If over the two previous quarters more than 
two margin disputes on a netting set have occurred that lasted more 
than the holding period, then the FDIC-supervised institution must 
calculate the haircut for transactions in that netting set on the basis 
of a holding period that is at least two times the minimum holding 
period for that netting set.
    (4) An FDIC-supervised institution is required to calculate its own 
internal estimates with inputs calibrated to historical data from a 
continuous 12-month period that reflects a period of significant 
financial stress appropriate to the security or category of securities.
    (5) An FDIC-supervised institution must have policies and 
procedures that describe how it determines the period of significant 
financial stress used to calculate the FDIC-supervised institution's 
own internal estimates for haircuts under this section and must be able 
to provide empirical support for the period used. The FDIC-supervised 
institution must obtain the prior approval of the FDIC for, and notify 
the FDIC if the FDIC-supervised institution makes any material changes 
to, these policies and procedures.
    (6) Nothing in this section prevents the FDIC from requiring an 
FDIC-supervised institution to use a different period of significant 
financial stress in the calculation of own internal estimates for 
haircuts.
    (7) An FDIC-supervised institution must update its data sets and 
calculate haircuts no less frequently than quarterly and must also 
reassess data sets and haircuts whenever market prices change 
materially.
    (B) With respect to debt securities that are investment grade, an 
FDIC-supervised institution may calculate haircuts for categories of 
securities. For a category of securities, the FDIC-supervised 
institution must calculate the haircut on the basis of internal 
volatility estimates for securities in that category that are 
representative of the securities in that category that the FDIC-
supervised institution has lent, sold subject to repurchase, posted as 
collateral, borrowed, purchased subject to resale, or taken as 
collateral. In determining relevant categories, the FDIC-supervised 
institution must at a minimum take into account:
    (1) The type of issuer of the security;
    (2) The credit quality of the security;
    (3) The maturity of the security; and
    (4) The interest rate sensitivity of the security.
    (C) With respect to debt securities that are not investment grade 
and equity securities, an FDIC-supervised institution must calculate a 
separate haircut for each individual security.
    (D) Where an exposure or collateral (whether in the form of cash or 
securities) is denominated in a currency that differs from the 
settlement currency, the FDIC-supervised institution must calculate a 
separate currency mismatch haircut for its net position in each 
mismatched currency based on estimated volatilities of foreign exchange 
rates between the mismatched currency and the settlement currency.
    (E) An FDIC-supervised institution's own estimates of market price 
and foreign exchange rate volatilities may not take into account the 
correlations among securities and foreign exchange rates on either the 
exposure or collateral side of a transaction (or netting set) or the 
correlations among securities and foreign exchange rates between the 
exposure and collateral sides of the transaction (or netting set).
    (3) Simple VaR methodology. With the prior written approval of the 
FDIC, an FDIC-supervised institution may estimate EAD for a netting set 
using a VaR model that meets the requirements in paragraph (b)(3)(iii) 
of this section. In such event, the FDIC-supervised institution must 
set EAD equal to max {0, [([Sigma]E-[Sigma]C) + PFE]{time} , where:
    (i) [Sigma]E equals the value of the exposure (the sum of the 
current fair values of all instruments, gold, and cash the FDIC-
supervised institution has lent, sold subject to repurchase, or posted 
as collateral to the counterparty under the netting set);
    (ii) [Sigma]C equals the value of the collateral (the sum of the 
current fair values of all instruments, gold, and cash the FDIC-
supervised institution has borrowed, purchased subject to resale, or 
taken as collateral from the counterparty under the netting set); and
    (iii) PFE (potential future exposure) equals the FDIC-supervised 
institution's empirically based best estimate of the 99th percentile, 
one-tailed confidence interval for an increase in the value of 
([Sigma]E-[Sigma]C) over a five-business-day holding period for repo-
style transactions, or over a ten-business-day holding period for 
eligible margin loans except for netting sets for which paragraph 
(b)(3)(iv) of this section applies using a minimum one-year historical 
observation period of price data representing the instruments that the 
FDIC-supervised institution has lent, sold subject to repurchase, 
posted as collateral, borrowed, purchased subject to resale, or taken 
as collateral. The FDIC-supervised institution must validate its VaR 
model by establishing and maintaining a rigorous and regular 
backtesting regime.
    (iv) If the number of trades in a netting set exceeds 5,000 at any 
time during a quarter, an FDIC-supervised institution must use a 
twenty-business-day holding period for the following quarter (except 
when an FDIC-supervised institution is calculating EAD for a cleared 
transaction under Sec.  324.133). If a netting set contains one or more 
trades involving illiquid collateral, an FDIC-supervised institution 
must use a twenty-business-day holding period. If over the two previous 
quarters more than two margin disputes on a netting set have occurred 
that lasted more than the holding period, then the FDIC-supervised 
institution must set its PFE for that netting set equal to an estimate 
over a holding period that is at least two times the minimum holding 
period for that netting set.
    (c) EAD for OTC derivative contracts. (1) OTC derivative contracts 
not subject to a qualifying master netting agreement. An FDIC-
supervised institution must determine the EAD for an OTC derivative 
contract that is not subject to a qualifying master netting agreement 
using the current exposure methodology in paragraph (c)(5) of this

[[Page 55539]]

section or using the internal models methodology described in paragraph 
(d) of this section.
    (2) OTC derivative contracts subject to a qualifying master netting 
agreement. An FDIC-supervised institution must determine the EAD for 
multiple OTC derivative contracts that are subject to a qualifying 
master netting agreement using the current exposure methodology in 
paragraph (c)(6) of this section or using the internal models 
methodology described in paragraph (d) of this section.
    (3) Credit derivatives. Notwithstanding paragraphs (c)(1) and 
(c)(2) of this section:
    (i) An FDIC-supervised institution that purchases a credit 
derivative that is recognized under Sec.  324.134 or Sec.  324.135 as a 
credit risk mitigant for an exposure that is not a covered position 
under subpart F of this part is not required to calculate a separate 
counterparty credit risk capital requirement under this section so long 
as the FDIC-supervised institution does so consistently for all such 
credit derivatives and either includes or excludes all such credit 
derivatives that are subject to a master netting agreement from any 
measure used to determine counterparty credit risk exposure to all 
relevant counterparties for risk-based capital purposes.
    (ii) An FDIC-supervised institution that is the protection provider 
in a credit derivative must treat the credit derivative as a wholesale 
exposure to the reference obligor and is not required to calculate a 
counterparty credit risk capital requirement for the credit derivative 
under this section, so long as it does so consistently for all such 
credit derivatives and either includes all or excludes all such credit 
derivatives that are subject to a master netting agreement from any 
measure used to determine counterparty credit risk exposure to all 
relevant counterparties for risk-based capital purposes (unless the 
FDIC-supervised institution is treating the credit derivative as a 
covered position under subpart F of this part, in which case the FDIC-
supervised institution must calculate a supplemental counterparty 
credit risk capital requirement under this section).
    (4) Equity derivatives. An FDIC-supervised institution must treat 
an equity derivative contract as an equity exposure and compute a risk-
weighted asset amount for the equity derivative contract under 
Sec. Sec.  324.151-324.155 (unless the FDIC-supervised institution is 
treating the contract as a covered position under subpart F of this 
part). In addition, if the FDIC-supervised institution is treating the 
contract as a covered position under subpart F of this part, and under 
certain other circumstances described in Sec.  324.155, the FDIC-
supervised institution must also calculate a risk-based capital 
requirement for the counterparty credit risk of an equity derivative 
contract under this section.
    (5) Single OTC derivative contract. Except as modified by paragraph 
(c)(7) of this section, the EAD for a single OTC derivative contract 
that is not subject to a qualifying master netting agreement is equal 
to the sum of the FDIC-supervised institution's current credit exposure 
and potential future credit exposure (PFE) on the derivative contract.
    (i) Current credit exposure. The current credit exposure for a 
single OTC derivative contract is the greater of the mark-to-fair value 
of the derivative contract or zero; and
    (ii) PFE. The PFE for a single OTC derivative contract, including 
an OTC derivative contract with a negative mark-to-fair value, is 
calculated by multiplying the notional principal amount of the 
derivative contract by the appropriate conversion factor in Table 2 to 
Sec.  324.132. For purposes of calculating either the PFE under 
paragraph (c)(5) of this section or the gross PFE under paragraph 
(c)(6) of this section for exchange rate contracts and other similar 
contracts in which the notional principal amount is equivalent to the 
cash flows, the notional principal amount is the net receipts to each 
party falling due on each value date in each currency. For any OTC 
derivative contract that does not fall within one of the specified 
categories in Table 2 to Sec.  324.132, the PFE must be calculated 
using the ``other'' conversion factors. An FDIC-supervised institution 
must use an OTC derivative contract's effective notional principal 
amount (that is, its apparent or stated notional principal amount 
multiplied by any multiplier in the OTC derivative contract) rather 
than its apparent or stated notional principal amount in calculating 
PFE. PFE of the protection provider of a credit derivative is capped at 
the net present value of the amount of unpaid premiums.

                                  Table 2 to Sec.   324.132--Conversion Factor Matrix for OTC Derivative Contracts \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Credit       Credit (non-
                                                                        Foreign      (investment-     investment-                 Precious
                 Remaining maturity \2\                    Interest  exchange rate       grade           grade        Equity   metals (except    Other
                                                             rate       and gold       reference       reference                    gold)
                                                                                      asset) \3\        asset)
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year or less........................................      0.00           0.01             0.05            0.10       0.06            0.07       0.10
Over one to five years..................................      0.005          0.05             0.05            0.10       0.08            0.07       0.12
Over five years.........................................      0.015          0.075            0.05            0.10       0.10            0.08       0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For an OTC derivative contract with multiple exchanges of principal, the conversion factor is multiplied by the number of remaining payments in the
  derivative contract.
\2\ For an OTC derivative contract that is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that
  the fair value of the contract is zero, the remaining maturity equals the time until the next reset date. For an interest rate derivative contract
  with a remaining maturity of greater than one year that meets these criteria, the minimum conversion factor is 0.005.
\3\ An FDIC-supervised institution must use the column labeled ``Credit (investment-grade reference asset)'' for a credit derivative whose reference
  asset is an outstanding unsecured long-term debt security without credit enhancement that is investment grade. An FDIC-supervised institution must use
  the column labeled ``Credit (non-investment-grade reference asset)'' for all other credit derivatives.

    (6) Multiple OTC derivative contracts subject to a qualifying 
master netting agreement. Except as modified by paragraph (c)(7) of 
this section, the EAD for multiple OTC derivative contracts subject to 
a qualifying master netting agreement is equal to the sum of the net 
current credit exposure and the adjusted sum of the PFE exposure for 
all OTC derivative contracts subject to the qualifying master netting 
agreement.
    (i) Net current credit exposure. The net current credit exposure is 
the greater of:
    (A) The net sum of all positive and negative fair values of the 
individual OTC derivative contracts subject to the qualifying master 
netting agreement; or
    (B) Zero; and
    (ii) Adjusted sum of the PFE. The adjusted sum of the PFE, 
Anet, is calculated as Anet = (0.4 x 
Agross) + (0.6 x NGR x Agross), where:

[[Page 55540]]

    (A) Agross equals the gross PFE (that is, the sum of the 
PFE amounts (as determined under paragraph (c)(5)(ii) of this section) 
for each individual derivative contract subject to the qualifying 
master netting agreement); and
    (B) NGR equals the net to gross ratio (that is, the ratio of the 
net current credit exposure to the gross current credit exposure). In 
calculating the NGR, the gross current credit exposure equals the sum 
of the positive current credit exposures (as determined under paragraph 
(c)(6)(i) of this section) of all individual derivative contracts 
subject to the qualifying master netting agreement.
    (7) Collateralized OTC derivative contracts. An FDIC-supervised 
institution may recognize the credit risk mitigation benefits of 
financial collateral that secures an OTC derivative contract or single-
product netting set of OTC derivatives by factoring the collateral into 
its LGD estimates for the contract or netting set. Alternatively, an 
FDIC-supervised institution may recognize the credit risk mitigation 
benefits of financial collateral that secures such a contract or 
netting set that is marked-to-market on a daily basis and subject to a 
daily margin maintenance requirement by estimating an unsecured LGD for 
the contract or netting set and adjusting the EAD calculated under 
paragraph (c)(5) or (c)(6) of this section using the collateral haircut 
approach in paragraph (b)(2) of this section. The FDIC-supervised 
institution must substitute the EAD calculated under paragraph (c)(5) 
or (c)(6) of this section for [Sigma]E in the equation in paragraph 
(b)(2)(i) of this section and must use a ten-business day minimum 
holding period (TM = 10) unless a longer holding period is 
required by paragraph (b)(2)(iii)(A)(3) of this section.
    (8) Clearing member FDIC-supervised institution's EAD. A clearing 
member FDIC-supervised institution's EAD for an OTC derivative contract 
or netting set of OTC derivative contracts where the FDIC-supervised 
institution is either acting as a financial intermediary and enters 
into an offsetting transaction with a QCCP or where the FDIC-supervised 
institution provides a guarantee to the QCCP on the performance of the 
client equals the exposure amount calculated according to paragraph 
(c)(5) or (6) of this section multiplied by the scaling factor 0.71. If 
the FDIC-supervised institution determines that a longer period is 
appropriate, it must use a larger scaling factor to adjust for a longer 
holding period as follows:
[GRAPHIC] [TIFF OMITTED] TR10SE13.028


where H equals the holding period greater than five days. Additionally, 
the FDIC may require the FDIC-supervised institution to set a longer 
holding period if the FDIC determines that a longer period is 
appropriate due to the nature, structure, or characteristics of the 
transaction or is commensurate with the risks associated with the 
transaction.
    (d) Internal models methodology. (1)(i) With prior written approval 
from the FDIC, an FDIC-supervised institution may use the internal 
models methodology in this paragraph (d) to determine EAD for 
counterparty credit risk for derivative contracts (collateralized or 
uncollateralized) and single-product netting sets thereof, for eligible 
margin loans and single-product netting sets thereof, and for repo-
style transactions and single-product netting sets thereof.
    (ii) An FDIC-supervised institution that uses the internal models 
methodology for a particular transaction type (derivative contracts, 
eligible margin loans, or repo-style transactions) must use the 
internal models methodology for all transactions of that transaction 
type. An FDIC-supervised institution may choose to use the internal 
models methodology for one or two of these three types of exposures and 
not the other types.
    (iii) An FDIC-supervised institution may also use the internal 
models methodology for derivative contracts, eligible margin loans, and 
repo-style transactions subject to a qualifying cross-product netting 
agreement if:
    (A) The FDIC-supervised institution effectively integrates the risk 
mitigating effects of cross-product netting into its risk management 
and other information technology systems; and
    (B) The FDIC-supervised institution obtains the prior written 
approval of the FDIC.
    (iv) An FDIC-supervised institution that uses the internal models 
methodology for a transaction type must receive approval from the FDIC 
to cease using the methodology for that transaction type or to make a 
material change to its internal model.
    (2) Risk-weighted assets using IMM. Under the IMM, an FDIC-
supervised institution uses an internal model to estimate the expected 
exposure (EE) for a netting set and then calculates EAD based on that 
EE. An FDIC-supervised institution must calculate two EEs and two EADs 
(one stressed and one unstressed) for each netting set as follows:
    (i) EADunstressed is calculated using an EE estimate 
based on the most recent data meeting the requirements of paragraph 
(d)(3)(vii) of this section;
    (ii) EADstressed is calculated using an EE estimate 
based on a historical period that includes a period of stress to the 
credit default spreads of the FDIC-supervised institution's 
counterparties according to paragraph (d)(3)(viii) of this section;
    (iii) The FDIC-supervised institution must use its internal model's 
probability distribution for changes in the fair value of a netting set 
that are attributable to changes in market variables to determine EE; 
and
    (iv) Under the internal models methodology, EAD = Max (0, [alpha] x 
effective EPE-CVA), or, subject to the prior written approval of FDIC 
as provided in paragraph (d)(10) of this section, a more conservative 
measure of EAD.
    (A) CVA equals the credit valuation adjustment that the FDIC-
supervised institution has recognized in its balance sheet valuation of 
any OTC derivative contracts in the netting set. For purposes of this 
paragraph, CVA does not include any adjustments to common equity tier 1 
capital attributable to changes in the fair value of the FDIC-
supervised institution's liabilities that are due to changes in its own 
credit risk since the inception of the transaction with the 
counterparty.
[GRAPHIC] [TIFF OMITTED] TR10SE13.029


(that is, effective EPE is the time-weighted average of effective EE 
where the weights are the proportion that an individual effective EE 
represents in a one-year time interval) where:
    (1) EffectiveEEtk = max(Effective EEtk-1, EEtk) (that is, for a 
specific date tk, effective EE is the greater of EE at that

[[Page 55541]]

date or the effective EE at the previous date); and
    (2) tk represents the k^th future time period 
in the model and there are n time periods represented in the model over 
the first year, and
    (C) [alpha] = 1.4 except as provided in paragraph (d)(5) of this 
section, or when the FDIC has determined that the FDIC-supervised 
institution must set [alpha] higher based on the FDIC-supervised 
institution's specific characteristics of counterparty credit risk or 
model performance.
    (v) An FDIC-supervised institution may include financial collateral 
currently posted by the counterparty as collateral (but may not include 
other forms of collateral) when calculating EE.
    (vi) If an FDIC-supervised institution hedges some or all of the 
counterparty credit risk associated with a netting set using an 
eligible credit derivative, the FDIC-supervised institution may take 
the reduction in exposure to the counterparty into account when 
estimating EE. If the FDIC-supervised institution recognizes this 
reduction in exposure to the counterparty in its estimate of EE, it 
must also use its internal model to estimate a separate EAD for the 
FDIC-supervised institution's exposure to the protection provider of 
the credit derivative.
    (3) Prior approval relating to EAD calculation. To obtain FDIC 
approval to calculate the distributions of exposures upon which the EAD 
calculation is based, the FDIC-supervised institution must demonstrate 
to the satisfaction of the FDIC that it has been using for at least one 
year an internal model that broadly meets the following minimum 
standards, with which the FDIC-supervised institution must maintain 
compliance:
    (i) The model must have the systems capability to estimate the 
expected exposure to the counterparty on a daily basis (but is not 
expected to estimate or report expected exposure on a daily basis);
    (ii) The model must estimate expected exposure at enough future 
dates to reflect accurately all the future cash flows of contracts in 
the netting set;
    (iii) The model must account for the possible non-normality of the 
exposure distribution, where appropriate;
    (iv) The FDIC-supervised institution must measure, monitor, and 
control current counterparty exposure and the exposure to the 
counterparty over the whole life of all contracts in the netting set;
    (v) The FDIC-supervised institution must be able to measure and 
manage current exposures gross and net of collateral held, where 
appropriate. The FDIC-supervised institution must estimate expected 
exposures for OTC derivative contracts both with and without the effect 
of collateral agreements;
    (vi) The FDIC-supervised institution must have procedures to 
identify, monitor, and control wrong-way risk throughout the life of an 
exposure. The procedures must include stress testing and scenario 
analysis;
    (vii) The model must use current market data to compute current 
exposures. The FDIC-supervised institution must estimate model 
parameters using historical data from the most recent three-year period 
and update the data quarterly or more frequently if market conditions 
warrant. The FDIC-supervised institution should consider using model 
parameters based on forward-looking measures, where appropriate;
    (viii) When estimating model parameters based on a stress period, 
the FDIC-supervised institution must use at least three years of 
historical data that include a period of stress to the credit default 
spreads of the FDIC-supervised institution's counterparties. The FDIC-
supervised institution must review the data set and update the data as 
necessary, particularly for any material changes in its counterparties. 
The FDIC-supervised institution must demonstrate, at least quarterly, 
and maintain documentation of such demonstration, that the stress 
period coincides with increased CDS or other credit spreads of the 
FDIC-supervised institution's counterparties. The FDIC-supervised 
institution must have procedures to evaluate the effectiveness of its 
stress calibration that include a process for using benchmark 
portfolios that are vulnerable to the same risk factors as the FDIC-
supervised institution's portfolio. The FDIC may require the FDIC-
supervised institution to modify its stress calibration to better 
reflect actual historic losses of the portfolio;
    (ix) An FDIC-supervised institution must subject its internal model 
to an initial validation and annual model review process. The model 
review should consider whether the inputs and risk factors, as well as 
the model outputs, are appropriate. As part of the model review 
process, the FDIC-supervised institution must have a backtesting 
program for its model that includes a process by which unacceptable 
model performance will be determined and remedied;
    (x) An FDIC-supervised institution must have policies for the 
measurement, management and control of collateral and margin amounts; 
and
    (xi) An FDIC-supervised institution must have a comprehensive 
stress testing program that captures all credit exposures to 
counterparties, and incorporates stress testing of principal market 
risk factors and creditworthiness of counterparties.
    (4) Calculating the maturity of exposures. (i) If the remaining 
maturity of the exposure or the longest-dated contract in the netting 
set is greater than one year, the FDIC-supervised institution must set 
M for the exposure or netting set equal to the lower of five years or 
M(EPE), where:
[GRAPHIC] [TIFF OMITTED] TR10SE13.030


[[Page 55542]]


    (ii) If the remaining maturity of the exposure or the longest-dated 
contract in the netting set is one year or less, the FDIC-supervised 
institution must set M for the exposure or netting set equal to one 
year, except as provided in Sec.  324.131(d)(7).
    (iii) Alternatively, an FDIC-supervised institution that uses an 
internal model to calculate a one-sided credit valuation adjustment may 
use the effective credit duration estimated by the model as M(EPE) in 
place of the formula in paragraph (d)(4)(i) of this section.
    (5) Effects of collateral agreements on EAD. An FDIC-supervised 
institution may capture the effect on EAD of a collateral agreement 
that requires receipt of collateral when exposure to the counterparty 
increases, but may not capture the effect on EAD of a collateral 
agreement that requires receipt of collateral when counterparty credit 
quality deteriorates. Two methods are available to capture the effect 
of a collateral agreement, as set forth in paragraphs (d)(5)(i) and 
(ii) of this section:
    (i) With prior written approval from the FDIC, an FDIC-supervised 
institution may include the effect of a collateral agreement within its 
internal model used to calculate EAD. The FDIC-supervised institution 
may set EAD equal to the expected exposure at the end of the margin 
period of risk. The margin period of risk means, with respect to a 
netting set subject to a collateral agreement, the time period from the 
most recent exchange of collateral with a counterparty until the next 
required exchange of collateral, plus the period of time required to 
sell and realize the proceeds of the least liquid collateral that can 
be delivered under the terms of the collateral agreement and, where 
applicable, the period of time required to re-hedge the resulting 
market risk upon the default of the counterparty. The minimum margin 
period of risk is set according to paragraph (d)(5)(iii) of this 
section; or
    (ii) As an alternative to paragraph (d)(5)(i) of this section, an 
FDIC-supervised institution that can model EPE without collateral 
agreements but cannot achieve the higher level of modeling 
sophistication to model EPE with collateral agreements can set 
effective EPE for a collateralized netting set equal to the lesser of:
    (A) An add-on that reflects the potential increase in exposure of 
the netting set over the margin period of risk, plus the larger of:
    (1) The current exposure of the netting set reflecting all 
collateral held or posted by the FDIC-supervised institution excluding 
any collateral called or in dispute; or
    (2) The largest net exposure including all collateral held or 
posted under the margin agreement that would not trigger a collateral 
call. For purposes of this section, the add-on is computed as the 
expected increase in the netting set's exposure over the margin period 
of risk (set in accordance with paragraph (d)(5)(iii) of this section); 
or
    (B) Effective EPE without a collateral agreement plus any 
collateral the FDIC-supervised institution posts to the counterparty 
that exceeds the required margin amount.
    (iii) For purposes of this part, including paragraphs (d)(5)(i) and 
(ii) of this section, the margin period of risk for a netting set 
subject to a collateral agreement is:
    (A) Five business days for repo-style transactions subject to daily 
remargining and daily marking-to-market, and ten business days for 
other transactions when liquid financial collateral is posted under a 
daily margin maintenance requirement, or
    (B) Twenty business days if the number of trades in a netting set 
exceeds 5,000 at any time during the previous quarter or contains one 
or more trades involving illiquid collateral or any derivative contract 
that cannot be easily replaced (except if the FDIC-supervised 
institution is calculating EAD for a cleared transaction under Sec.  
324.133). If over the two previous quarters more than two margin 
disputes on a netting set have occurred that lasted more than the 
margin period of risk, then the FDIC-supervised institution must use a 
margin period of risk for that netting set that is at least two times 
the minimum margin period of risk for that netting set. If the 
periodicity of the receipt of collateral is N-days, the minimum margin 
period of risk is the minimum margin period of risk under this 
paragraph plus N minus 1. This period should be extended to cover any 
impediments to prompt re-hedging of any market risk.
    (C) Five business days for an OTC derivative contract or netting 
set of OTC derivative contracts where the FDIC-supervised institution 
is either acting as a financial intermediary and enters into an 
offsetting transaction with a CCP or where the FDIC-supervised 
institution provides a guarantee to the CCP on the performance of the 
client. An FDIC-supervised institution must use a longer holding period 
if the FDIC-supervised institution determines that a longer period is 
appropriate. Additionally, the FDIC may require the FDIC-supervised 
institution to set a longer holding period if the FDIC determines that 
a longer period is appropriate due to the nature, structure, or 
characteristics of the transaction or is commensurate with the risks 
associated with the transaction.
    (6) Own estimate of alpha. With prior written approval of the FDIC, 
an FDIC-supervised institution may calculate alpha as the ratio of 
economic capital from a full simulation of counterparty exposure across 
counterparties that incorporates a joint simulation of market and 
credit risk factors (numerator) and economic capital based on EPE 
(denominator), subject to a floor of 1.2. For purposes of this 
calculation, economic capital is the unexpected losses for all 
counterparty credit risks measured at a 99.9 percent confidence level 
over a one-year horizon. To receive approval, the FDIC-supervised 
institution must meet the following minimum standards to the 
satisfaction of the FDIC:
    (i) The FDIC-supervised institution's own estimate of alpha must 
capture in the numerator the effects of:
    (A) The material sources of stochastic dependency of distributions 
of fair values of transactions or portfolios of transactions across 
counterparties;
    (B) Volatilities and correlations of market risk factors used in 
the joint simulation, which must be related to the credit risk factor 
used in the simulation to reflect potential increases in volatility or 
correlation in an economic downturn, where appropriate; and
    (C) The granularity of exposures (that is, the effect of a 
concentration in the proportion of each counterparty's exposure that is 
driven by a particular risk factor).
    (ii) The FDIC-supervised institution must assess the potential 
model uncertainty in its estimates of alpha.
    (iii) The FDIC-supervised institution must calculate the numerator 
and denominator of alpha in a consistent fashion with respect to 
modeling methodology, parameter specifications, and portfolio 
composition.
    (iv) The FDIC-supervised institution must review and adjust as 
appropriate its estimates of the numerator and denominator of alpha on 
at least a quarterly basis and more frequently when the composition of 
the portfolio varies over time.
    (7) Risk-based capital requirements for transactions with specific 
wrong-way risk. An FDIC-supervised institution must determine if a 
repo-style transaction, eligible margin loan, bond option, or equity 
derivative contract or purchased credit derivative to which the FDIC-
supervised institution applies the internal models methodology under 
this paragraph (d) has specific wrong-way risk. If a transaction has 
specific wrong-

[[Page 55543]]

way risk, the FDIC-supervised institution must treat the transaction as 
its own netting set and exclude it from the model described in 
paragraph (d)(2) of this section and instead calculate the risk-based 
capital requirement for the transaction as follows:
    (i) For an equity derivative contract, by multiplying:
    (A) K, calculated using the appropriate risk-based capital formula 
specified in Table 1 of Sec.  324.131 using the PD of the counterparty 
and LGD equal to 100 percent, by
    (B) The maximum amount the FDIC-supervised institution could lose 
on the equity derivative.
    (ii) For a purchased credit derivative by multiplying:
    (A) K, calculated using the appropriate risk-based capital formula 
specified in Table 1 of Sec.  324.131 using the PD of the counterparty 
and LGD equal to 100 percent, by
    (B) The fair value of the reference asset of the credit derivative.
    (iii) For a bond option, by multiplying:
    (A) K, calculated using the appropriate risk-based capital formula 
specified in Table 1 of Sec.  324.131 using the PD of the counterparty 
and LGD equal to 100 percent, by
    (B) The smaller of the notional amount of the underlying reference 
asset and the maximum potential loss under the bond option contract.
    (iv) For a repo-style transaction or eligible margin loan by 
multiplying:
    (A) K, calculated using the appropriate risk-based capital formula 
specified in Table 1 of Sec.  324.131 using the PD of the counterparty 
and LGD equal to 100 percent, by
    (B) The EAD of the transaction determined according to the EAD 
equation in Sec.  324.131(b)(2), substituting the estimated value of 
the collateral assuming a default of the counterparty for the value of 
the collateral in [Sigma]C of the equation.
    (8) Risk-weighted asset amount for IMM exposures with specific 
wrong-way risk. The aggregate risk-weighted asset amount for IMM 
exposures with specific wrong-way risk is the sum of an FDIC-supervised 
institution's risk-based capital requirement for purchased credit 
derivatives that are not bond options with specific wrong-way risk as 
calculated under paragraph (d)(7)(ii) of this section, an FDIC-
supervised institution's risk-based capital requirement for equity 
derivatives with specific wrong-way risk as calculated under paragraph 
(d)(7)(i) of this section, an FDIC-supervised institution's risk-based 
capital requirement for bond options with specific wrong-way risk as 
calculated under paragraph (d)(7)(iii) of this section, and an FDIC-
supervised institution's risk-based capital requirement for repo-style 
transactions and eligible margin loans with specific wrong-way risk as 
calculated under paragraph (d)(7)(iv) of this section, multiplied by 
12.5.
    (9) Risk-weighted assets for IMM exposures. (i) The FDIC-supervised 
institution must insert the assigned risk parameters for each 
counterparty and netting set into the appropriate formula specified in 
Table 1 of Sec.  324.131 and multiply the output of the formula by the 
EADunstressed of the netting set to obtain the unstressed 
capital requirement for each netting set. An FDIC-supervised 
institution that uses an advanced CVA approach that captures migrations 
in credit spreads under paragraph (e)(3) of this section must set the 
maturity adjustment (b) in the formula equal to zero. The sum of the 
unstressed capital requirement calculated for each netting set equals 
Kunstressed.
    (ii) The FDIC-supervised institution must insert the assigned risk 
parameters for each wholesale obligor and netting set into the 
appropriate formula specified in Table 1 of Sec.  324.131 and multiply 
the output of the formula by the EADstressed of the netting 
set to obtain the stressed capital requirement for each netting set. An 
FDIC-supervised institution that uses an advanced CVA approach that 
captures migrations in credit spreads under paragraph (e)(3) of this 
section must set the maturity adjustment (b) in the formula equal to 
zero. The sum of the stressed capital requirement calculated for each 
netting set equals Kstressed.
    (iii) The FDIC-supervised institution's dollar risk-based capital 
requirement under the internal models methodology equals the larger of 
Kunstressed and Kstressed. An FDIC-supervised 
institution's risk-weighted assets amount for IMM exposures is equal to 
the capital requirement multiplied by 12.5, plus risk-weighted assets 
for IMM exposures with specific wrong-way risk in paragraph (d)(8) of 
this section and those in paragraph (d)(10) of this section.
    (10) Other measures of counterparty exposure. (i) With prior 
written approval of the FDIC, an FDIC-supervised institution may set 
EAD equal to a measure of counterparty credit risk exposure, such as 
peak EAD, that is more conservative than an alpha of 1.4 (or higher 
under the terms of paragraph (d)(7)(iv)(C) of this section) times the 
larger of EPEunstressed and EPEstressed for every 
counterparty whose EAD will be measured under the alternative measure 
of counterparty exposure. The FDIC-supervised institution must 
demonstrate the conservatism of the measure of counterparty credit risk 
exposure used for EAD. With respect to paragraph (d)(10)(i) of this 
section:
    (A) For material portfolios of new OTC derivative products, the 
FDIC-supervised institution may assume that the current exposure 
methodology in paragraphs (c)(5) and (c)(6) of this section meets the 
conservatism requirement of this section for a period not to exceed 180 
days.
    (B) For immaterial portfolios of OTC derivative contracts, the 
FDIC-supervised institution generally may assume that the current 
exposure methodology in paragraphs (c)(5) and (c)(6) of this section 
meets the conservatism requirement of this section.
    (ii) To calculate risk-weighted assets for purposes of the approach 
in paragraph (d)(10)(i) of this section, the FDIC-supervised 
institution must insert the assigned risk parameters for each 
counterparty and netting set into the appropriate formula specified in 
Table 1 of Sec.  324.131, multiply the output of the formula by the EAD 
for the exposure as specified above, and multiply by 12.5.
    (e) Credit valuation adjustment (CVA) risk-weighted assets. (1) In 
general. With respect to its OTC derivative contracts, an FDIC-
supervised institution must calculate a CVA risk-weighted asset amount 
for its portfolio of OTC derivative transactions that are subject to 
the CVA capital requirement using the simple CVA approach described in 
paragraph (e)(5) of this section or, with prior written approval of the 
FDIC, the advanced CVA approach described in paragraph (e)(6) of this 
section. An FDIC-supervised institution that receives prior FDIC 
approval to calculate its CVA risk-weighted asset amounts for a class 
of counterparties using the advanced CVA approach must continue to use 
that approach for that class of counterparties until it notifies the 
FDIC in writing that the FDIC-supervised institution expects to begin 
calculating its CVA risk-weighted asset amount using the simple CVA 
approach. Such notice must include an explanation of the FDIC-
supervised institution's rationale and the date upon which the FDIC-
supervised institution will begin to calculate its CVA risk-weighted 
asset amount using the simple CVA approach.
    (2) Market risk FDIC-supervised institutions. Notwithstanding the 
prior approval requirement in paragraph (e)(1) of this section, a 
market risk FDIC-supervised institution may calculate its

[[Page 55544]]

CVA risk-weighted asset amount using the advanced CVA approach if the 
FDIC-supervised institution has FDIC approval to:
    (i) Determine EAD for OTC derivative contracts using the internal 
models methodology described in paragraph (d) of this section; and
    (ii) Determine its specific risk add-on for debt positions issued 
by the counterparty using a specific risk model described in Sec.  
324.207(b).
    (3) Recognition of hedges. (i) An FDIC-supervised institution may 
recognize a single name CDS, single name contingent CDS, any other 
equivalent hedging instrument that references the counterparty 
directly, and index credit default swaps (CDSind) as a CVA 
hedge under paragraph (e)(5)(ii) of this section or paragraph (e)(6) of 
this section, provided that the position is managed as a CVA hedge in 
accordance with the FDIC-supervised institution's hedging policies.
    (ii) An FDIC-supervised institution shall not recognize as a CVA 
hedge any tranched or n\th\-to-default credit derivative.
    (4) Total CVA risk-weighted assets. Total CVA risk-weighted assets 
is the CVA capital requirement, KCVA, calculated for an 
FDIC-supervised institution's entire portfolio of OTC derivative 
counterparties that are subject to the CVA capital requirement, 
multiplied by 12.5.
    (5) Simple CVA approach. (i) Under the simple CVA approach, the CVA 
capital requirement, KCVA, is calculated according to the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.031

    (A) wi equals the weight applicable to counterparty i under Table 3 
to Sec.  324.132;
    (B) Mi equals the EAD-weighted average of the effective maturity of 
each netting set with counterparty i (where each netting set's 
effective maturity can be no less than one year.)
    (C) EADi total equals the sum of the EAD for all netting sets of 
OTC derivative contracts with counterparty i calculated using the 
current exposure methodology described in paragraph (c) of this section 
or the internal models methodology described in paragraph (d) of this 
section. When the FDIC-supervised institution calculates EAD under 
paragraph (c) of this section, such EAD may be adjusted for purposes of 
calculating EADi total by multiplying EAD by (1-exp(-0.05 x Mi))/(0.05 
x Mi), where ``exp'' is the exponential function. When the FDIC-
supervised institution calculates EAD under paragraph (d) of this 
section, EADi total equals EADunstressed.
    (D) M i hedge equals the notional weighted average maturity of the 
hedge instrument.
    (E) Bi equals the sum of the notional amounts of any purchased 
single name CDS referencing counterparty i that is used to hedge CVA 
risk to counterparty i multiplied by (1-exp(-0.05 x Mi hedge))/(0.05 x 
Mi hedge).
    (F) Mind equals the maturity of the CDSind or the notional weighted 
average maturity of any CDSind purchased to hedge CVA risk 
of counterparty i.
    (G) Bind equals the notional amount of one or more 
CDSind purchased to hedge CVA risk for counterparty i 
multiplied by (1-exp(-0.05 x Mind))/(0.05 x Mind)
    (H) wind equals the weight applicable to the CDSind 
based on the average weight of the underlying reference names that 
comprise the index under Table 3 to Sec.  324.132.
    (ii) The FDIC-supervised institution may treat the notional amount 
of the index attributable to a counterparty as a single name hedge of 
counterparty i (Bi,) when calculating KCVA, and subtract the 
notional amount of Bi from the notional amount of the 
CDSind. An FDIC-supervised institution must treat the 
CDSind hedge with the notional amount reduced by Bi as a CVA 
hedge.

      Table 3 to Sec.   324.132--Assignment of Counterparty Weight
------------------------------------------------------------------------
                                                          Weight wi (in
                Internal PD (in percent)                     percent)
------------------------------------------------------------------------
0.00-0.07..............................................             0.70
>0.070-0.15............................................             0.80
>0.15-0.40.............................................             1.00
>0.40-2.00.............................................             2.00
>2.00--6.00............................................             3.00
>6.00..................................................            10.00
------------------------------------------------------------------------

    (6) Advanced CVA approach. (i) An FDIC-supervised institution may 
use the VaR model that it uses to determine specific risk under Sec.  
324.207(b) or another VaR model that meets the quantitative 
requirements of Sec.  324.205(b) and Sec.  324.207(b)(1) to calculate 
its CVA capital requirement for a counterparty by modeling the impact 
of changes in the counterparties' credit spreads, together with any 
recognized CVA hedges, on the CVA for the counterparties, subject to 
the following requirements:
    (A) The VaR model must incorporate only changes in the 
counterparties' credit spreads, not changes in other risk factors. The 
VaR model does not need to capture jump-to-default risk;
    (B) An FDIC-supervised institution that qualifies to use the 
advanced CVA approach must include in that approach any immaterial OTC 
derivative portfolios for which it uses the current exposure 
methodology in paragraph (c) of this section according to paragraph 
(e)(6)(viii) of this section; and
    (C) An FDIC-supervised institution must have the systems capability 
to calculate the CVA capital requirement for a counterparty on a daily 
basis (but is not required to calculate the CVA capital requirement on 
a daily basis).
    (ii) Under the advanced CVA approach, the CVA capital requirement, 
KCVA, is calculated according to the following formulas:

[[Page 55545]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.032

Where

(A) ti equals the time of the i-th revaluation time bucket starting 
from t0 = 0.
(B) tT equals the longest contractual maturity across the OTC 
derivative contracts with the counterparty.
(C) si equals the CDS spread for the counterparty at tenor ti used 
to calculate the CVA for the counterparty. If a CDS spread is not 
available, the FDIC-supervised institution must use a proxy spread 
based on the credit quality, industry and region of the 
counterparty.
(D) LGDMKT equals the loss given default of the counterparty based 
on the spread of a publicly traded debt instrument of the 
counterparty, or, where a publicly traded debt instrument spread is 
not available, a proxy spread based on the credit quality, industry, 
and region of the counterparty. Where no market information and no 
reliable proxy based on the credit quality, industry, and region of 
the counterparty are available to determine LGDMKT, an 
FDIC-supervised institution may use a conservative estimate when 
determining LGDMKT, subject to approval by the FDIC.
(E) EEi equals the sum of the expected exposures for all netting 
sets with the counterparty at revaluation time ti, calculated 
according to paragraphs (e)(6)(iv)(A) and (e)(6)(v)(A) of this 
section.
(F) Di equals the risk-free discount factor at time ti, where D0 = 
1.
(G) Exp is the exponential function.
(H) The subscript j refers either to a stressed or an unstressed 
calibration as described in paragraphs (e)(6)(iv) and (v) of this 
section.

    (iii) Notwithstanding paragraphs (e)(6)(i) and (e)(6)(ii) of this 
section, an FDIC-supervised institution must use the formulas in 
paragraphs (e)(6)(iii)(A) or (e)(6)(iii)(B) of this section to 
calculate credit spread sensitivities if its VaR model is not based on 
full repricing.
    (A) If the VaR model is based on credit spread sensitivities for 
specific tenors, the FDIC-supervised institution must calculate each 
credit spread sensitivity according to the following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.033

    (B) If the VaR model uses credit spread sensitivities to parallel 
shifts in credit spreads, the FDIC-supervised institution must 
calculate each credit spread sensitivity according to the following 
formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.034


[[Page 55546]]


    (iv) To calculate the CVAUnstressed measure for purposes of 
paragraph (e)(6)(ii) of this section, the FDIC-supervised institution 
must:
    (A) Use the EEi calculated using the calibration of paragraph 
(d)(3)(vii) of this section, except as provided in Sec.  324.132 
(e)(6)(vi), and
    (B) Use the historical observation period required under Sec.  
324.205(b)(2).
    (v) To calculate the CVAStressed measure for purposes of paragraph 
(e)(6)(ii) of this section, the FDIC-supervised institution must:
    (A) Use the EEi calculated using the stress calibration in 
paragraph (d)(3)(viii) of this section except as provided in paragraph 
(e)(6)(vi) of this section.
    (B) Calibrate VaR model inputs to historical data from the most 
severe twelve-month stress period contained within the three-year 
stress period used to calculate EEi. The FDIC may require an FDIC-
supervised institution to use a different period of significant 
financial stress in the calculation of the CVAStressed measure.
    (vi) If an FDIC-supervised institution captures the effect of a 
collateral agreement on EAD using the method described in paragraph 
(d)(5)(ii) of this section, for purposes of paragraph (e)(6)(ii) of 
this section, the FDIC-supervised institution must calculate EEi using 
the method in paragraph (d)(5)(ii) of this section and keep that EE 
constant with the maturity equal to the maximum of:
    (A) Half of the longest maturity of a transaction in the netting 
set, and
    (B) The notional weighted average maturity of all transactions in 
the netting set.
    (vii) For purposes of paragraph (e)(6) of this section, the FDIC-
supervised institution's VaR model must capture the basis between the 
spreads of any CDSind that is used as the hedging instrument 
and the hedged counterparty exposure over various time periods, 
including benign and stressed environments. If the VaR model does not 
capture that basis, the FDIC-supervised institution must reflect only 
50 percent of the notional amount of the CDSind hedge in the 
VaR model.
    (viii) If an FDIC-supervised institution uses the current exposure 
methodology described in paragraphs (c)(5) and (c)(6) of this section 
to calculate the EAD for any immaterial portfolios of OTC derivative 
contracts, the FDIC-supervised institution must use that EAD as a 
constant EE in the formula for the calculation of CVA with the maturity 
equal to the maximum of:
    (A) Half of the longest maturity of a transaction in the netting 
set, and
    (B) The notional weighted average maturity of all transactions in 
the netting set.


Sec.  324.133  Cleared transactions.

    (a) General requirements. (1) An FDIC-supervised institution that 
is a clearing member client must use the methodologies described in 
paragraph (b) of this section to calculate risk-weighted assets for a 
cleared transaction.
    (2) An FDIC-supervised institution that is a clearing member must 
use the methodologies described in paragraph (c) of this section to 
calculate its risk-weighted assets for cleared transactions and 
paragraph (d) of this section to calculate its risk-weighted assets for 
its default fund contribution to a CCP.
    (b) Clearing member client FDIC-supervised institutions--(1) Risk-
weighted assets for cleared transactions. (i) To determine the risk-
weighted asset amount for a cleared transaction, an FDIC-supervised 
institution that is a clearing member client must multiply the trade 
exposure amount for the cleared transaction, calculated in accordance 
with paragraph (b)(2) of this section, by the risk weight appropriate 
for the cleared transaction, determined in accordance with paragraph 
(b)(3) of this section.
    (ii) A clearing member client FDIC-supervised institution's total 
risk-weighted assets for cleared transactions is the sum of the risk-
weighted asset amounts for all of its cleared transactions.
    (2) Trade exposure amount. (i) For a cleared transaction that is a 
derivative contract or a netting set of derivative contracts, trade 
exposure amount equals the EAD for the derivative contract or netting 
set of derivative contracts calculated using the methodology used to 
calculate EAD for OTC derivative contracts set forth in Sec.  
324.132(c) or (d), plus the fair value of the collateral posted by the 
clearing member client FDIC-supervised institution and held by the CCP 
or a clearing member in a manner that is not bankruptcy remote. When 
the FDIC-supervised institution calculates EAD for the cleared 
transaction using the methodology in Sec.  324.132(d), EAD equals 
EADunstressed.
    (ii) For a cleared transaction that is a repo-style transaction or 
netting set of repo-style transactions, trade exposure amount equals 
the EAD for the repo-style transaction calculated using the methodology 
set forth in Sec.  324.132(b)(2), (b)(3), or (d), plus the fair value 
of the collateral posted by the clearing member client FDIC-supervised 
institution and held by the CCP or a clearing member in a manner that 
is not bankruptcy remote. When the FDIC-supervised institution 
calculates EAD for the cleared transaction under Sec.  324.132(d), EAD 
equals EADunstressed.
    (3) Cleared transaction risk weights. (i) For a cleared transaction 
with a QCCP, a clearing member client FDIC-supervised institution must 
apply a risk weight of:
    (A) 2 percent if the collateral posted by the FDIC-supervised 
institution to the QCCP or clearing member is subject to an arrangement 
that prevents any loss to the clearing member client FDIC-supervised 
institution due to the joint default or a concurrent insolvency, 
liquidation, or receivership proceeding of the clearing member and any 
other clearing member clients of the clearing member; and the clearing 
member client FDIC-supervised institution has conducted sufficient 
legal review to conclude with a well-founded basis (and maintains 
sufficient written documentation of that legal review) that in the 
event of a legal challenge (including one resulting from an event of 
default or from liquidation, insolvency or receivership proceedings) 
the relevant court and administrative authorities would find the 
arrangements to be legal, valid, binding and enforceable under the law 
of the relevant jurisdictions.
    (B) 4 percent, if the requirements of Sec.  324.132(b)(3)(i)(A) are 
not met.
    (ii) For a cleared transaction with a CCP that is not a QCCP, a 
clearing member client FDIC-supervised institution must apply the risk 
weight applicable to the CCP under Sec.  324.32.
    (4) Collateral. (i) Notwithstanding any other requirement of this 
section, collateral posted by a clearing member client FDIC-supervised 
institution that is held by a custodian (in its capacity as custodian) 
in a manner that is bankruptcy remote from the CCP, the custodian, 
clearing member, and other clearing member clients of the clearing 
member, is not subject to a capital requirement under this section.
    (ii) A clearing member client FDIC-supervised institution must 
calculate a risk-weighted asset amount for any collateral provided to a 
CCP, clearing member or a custodian in connection with a cleared 
transaction in accordance with requirements under Sec.  324.131.
    (c) Clearing member FDIC-supervised institution--(1) Risk-weighted 
assets for cleared transactions. (i) To determine the risk-weighted 
asset amount for a cleared transaction, a clearing member FDIC-
supervised institution must multiply the trade exposure amount for the 
cleared transaction, calculated in accordance with paragraph (c)(2) of 
this section by the risk weight appropriate

[[Page 55547]]

for the cleared transaction, determined in accordance with paragraph 
(c)(3) of this section.
    (ii) A clearing member FDIC-supervised institution's total risk-
weighted assets for cleared transactions is the sum of the risk-
weighted asset amounts for all of its cleared transactions.
    (2) Trade exposure amount. A clearing member FDIC-supervised 
institution must calculate its trade exposure amount for a cleared 
transaction as follows:
    (i) For a cleared transaction that is a derivative contract or a 
netting set of derivative contracts, trade exposure amount equals the 
EAD calculated using the methodology used to calculate EAD for OTC 
derivative contracts set forth in Sec.  324.132(c) or Sec.  324.132(d), 
plus the fair value of the collateral posted by the clearing member 
FDIC-supervised institution and held by the CCP in a manner that is not 
bankruptcy remote. When the clearing member FDIC-supervised institution 
calculates EAD for the cleared transaction using the methodology in 
Sec.  324.132(d), EAD equals EADunstressed.
    (ii) For a cleared transaction that is a repo-style transaction or 
netting set of repo-style transactions, trade exposure amount equals 
the EAD calculated under Sec. Sec.  324.132(b)(2), (b)(3), or (d), plus 
the fair value of the collateral posted by the clearing member FDIC-
supervised institution and held by the CCP in a manner that is not 
bankruptcy remote. When the clearing member FDIC-supervised institution 
calculates EAD for the cleared transaction under Sec.  324.132(d), EAD 
equals EADunstressed.
    (3) Cleared transaction risk weights. (i) A clearing member FDIC-
supervised institution must apply a risk weight of 2 percent to the 
trade exposure amount for a cleared transaction with a QCCP.
    (ii) For a cleared transaction with a CCP that is not a QCCP, a 
clearing member FDIC-supervised institution must apply the risk weight 
applicable to the CCP according to Sec.  324.32.
    (4) Collateral. (i) Notwithstanding any other requirement of this 
section, collateral posted by a clearing member FDIC-supervised 
institution that is held by a custodian in a manner that is bankruptcy 
remote from the CCP is not subject to a capital requirement under this 
section.
    (ii) A clearing member FDIC-supervised institution must calculate a 
risk-weighted asset amount for any collateral provided to a CCP, 
clearing member or a custodian in connection with a cleared transaction 
in accordance with requirements under Sec.  324.131
    (d) Default fund contributions--(1) General requirement. A clearing 
member FDIC-supervised institution must determine the risk-weighted 
asset amount for a default fund contribution to a CCP at least 
quarterly, or more frequently if, in the opinion of the FDIC-supervised 
institution or the FDIC, there is a material change in the financial 
condition of the CCP.
    (2) Risk-weighted asset amount for default fund contributions to 
non-qualifying CCPs. A clearing member FDIC-supervised institution's 
risk-weighted asset amount for default fund contributions to CCPs that 
are not QCCPs equals the sum of such default fund contributions 
multiplied by 1,250 percent or an amount determined by the FDIC, based 
on factors such as size, structure and membership characteristics of 
the CCP and riskiness of its transactions, in cases where such default 
fund contributions may be unlimited.
    (3) Risk-weighted asset amount for default fund contributions to 
QCCPs. A clearing member FDIC-supervised institution's risk-weighted 
asset amount for default fund contributions to QCCPs equals the sum of 
its capital requirement, KCM for each QCCP, as calculated 
under the methodology set forth in paragraph (d)(3)(i) of this section 
(Method 1), multiplied by 1,250 percent or paragraph (d)(3)(iv) of this 
section (Method 2).
    (i) Method 1. The hypothetical capital requirement of a QCCP 
(KCCP) equals:
[GRAPHIC] [TIFF OMITTED] TR10SE13.035


Where

(A) EBRMi equals the EAD for each transaction cleared 
through the QCCP by clearing member i, calculated using the 
methodology used to calculate EAD for OTC derivative contracts set 
forth in Sec.  324.132(c)(5) and Sec.  324.132.(c)(6) or the 
methodology used to calculate EAD for repo-style transactions set 
forth in Sec.  324.132(b)(2) for repo-style transactions, provided 
that:
(1) For purposes of this section, when calculating the EAD, the 
FDIC-supervised institution may replace the formula provided in 
Sec.  324.132 (c)(6)(ii) with the following formula:
[GRAPHIC] [TIFF OMITTED] TR10SE13.047

    (2) For option derivative contracts that are cleared 
transactions, the PFE described in Sec.  324.132(c)(5) must be 
adjusted by multiplying the notional principal amount of the 
derivative contract by the appropriate conversion factor in Table 2 
to Sec.  324.132 and the absolute value of the option's delta, that 
is, the ratio of the change in the value of the derivative contract 
to the corresponding change in the price of the underlying asset.
    (3) For repo-style transactions, when applying Sec.  
324.132(b)(2), the FDIC-supervised institution must use the 
methodology in Sec.  324.132(b)(2)(ii).
    (B) VMi equals any collateral posted by clearing 
member i to the QCCP that it is entitled to receive from the QCCP 
but has not yet received, and any collateral that the QCCP has 
actually received from clearing member i;
    (C) IMi equals the collateral posted as initial 
margin by clearing member i to the QCCP;
    (D) DFi equals the funded portion of clearing member 
i's default fund contribution that will be applied to reduce the 
QCCP's loss upon a default by clearing member i; and
    (E) RW equals 20 percent, except when the FDIC has determined 
that a higher risk weight is more appropriate based on the specific 
characteristics of the QCCP and its clearing members; and
    (F) Where a QCCP has provided its KCCP, an FDIC-
supervised institution must rely on such disclosed figure instead of 
calculating KCCP under this paragraph, unless the FDIC-
supervised institution determines that a more conservative figure is 
appropriate based on the nature, structure, or characteristics of 
the QCCP.

    (ii) For an FDIC-supervised institution that is a clearing 
member of a QCCP with a default fund supported by funded 
commitments, KCM equals:

[[Page 55548]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.036


[[Page 55549]]


[GRAPHIC] [TIFF OMITTED] TR10SE13.037


Where

(A) DFi equals the FDIC-supervised institution's unfunded 
commitment to the default fund;
(B) DFCM equals the total of all clearing members' 
unfunded commitments to the default fund; and
(C) K*CM as defined in paragraph (d)(3)(ii) of this section.
(D) For an FDIC-supervised institution that is a clearing member of 
a QCCP with a default fund supported by unfunded commitments and 
that is unable to calculate KCM using the methodology 
described above in this paragraph (d)(3)(iii), KCM 
equals:
[GRAPHIC] [TIFF OMITTED] TR10SE13.038


Where

(1) IMi equals the FDIC-supervised institution's initial 
margin posted to the QCCP;
(2) IMCM = the total of initial margin posted to the 
QCCP; and
(3) K*CM as defined above in this paragraph (d)(3)(iii).
(iv) Method 2. A clearing member FDIC-supervised institution's risk-
weighted asset amount for its default fund contribution to a QCCP, 
RWADF, equals:
RWADF = Min {12.5 * DF; 0.18 * TE{time} 

Where

(A) TE equals the FDIC-supervised institution's trade exposure 
amount to the QCCP calculated according to section 133(c)(2);

[[Page 55550]]

(B) DF equals the funded portion of the FDIC-supervised 
institution's default fund contribution to the QCCP.

    (v) Total risk-weighted assets for default fund contributions. 
Total risk-weighted assets for default fund contributions is the sum of 
a clearing member FDIC-supervised institution's risk-weighted assets 
for all of its default fund contributions to all CCPs of which the 
FDIC-supervised institution is a clearing member.


Sec.  324.134  Guarantees and credit derivatives: PD substitution and 
LGD adjustment approaches.

    (a) Scope. (1) This section applies to wholesale exposures for 
which:
    (i) Credit risk is fully covered by an eligible guarantee or 
eligible credit derivative; or
    (ii) Credit risk is covered on a pro rata basis (that is, on a 
basis in which the FDIC-supervised institution and the protection 
provider share losses proportionately) by an eligible guarantee or 
eligible credit derivative.
    (2) Wholesale exposures on which there is a tranching of credit 
risk (reflecting at least two different levels of seniority) are 
securitization exposures subject to Sec. Sec.  324.141 through 324.145.
    (3) An FDIC-supervised institution may elect to recognize the 
credit risk mitigation benefits of an eligible guarantee or eligible 
credit derivative covering an exposure described in paragraph (a)(1) of 
this section by using the PD substitution approach or the LGD 
adjustment approach in paragraph (c) of this section or, if the 
transaction qualifies, using the double default treatment in Sec.  
324.135. An FDIC-supervised institution's PD and LGD for the hedged 
exposure may not be lower than the PD and LGD floors described in Sec.  
324.131(d)(2) and (d)(3).
    (4) If multiple eligible guarantees or eligible credit derivatives 
cover a single exposure described in paragraph (a)(1) of this section, 
an FDIC-supervised institution may treat the hedged exposure as 
multiple separate exposures each covered by a single eligible guarantee 
or eligible credit derivative and may calculate a separate risk-based 
capital requirement for each separate exposure as described in 
paragraph (a)(3) of this section.
    (5) If a single eligible guarantee or eligible credit derivative 
covers multiple hedged wholesale exposures described in paragraph 
(a)(1) of this section, an FDIC-supervised institution must treat each 
hedged exposure as covered by a separate eligible guarantee or eligible 
credit derivative and must calculate a separate risk-based capital 
requirement for each exposure as described in paragraph (a)(3) of this 
section.
    (6) An FDIC-supervised institution must use the same risk 
parameters for calculating ECL as it uses for calculating the risk-
based capital requirement for the exposure.
    (b) Rules of recognition. (1) An FDIC-supervised institution may 
only recognize the credit risk mitigation benefits of eligible 
guarantees and eligible credit derivatives.
    (2) An FDIC-supervised institution may only recognize the credit 
risk mitigation benefits of an eligible credit derivative to hedge an 
exposure that is different from the credit derivative's reference 
exposure used for determining the derivative's cash settlement value, 
deliverable obligation, or occurrence of a credit event if:
    (i) The reference exposure ranks pari passu (that is, equally) with 
or is junior to the hedged exposure; and
    (ii) The reference exposure and the hedged exposure are exposures 
to the same legal entity, and legally enforceable cross-default or 
cross-acceleration clauses are in place to assure payments under the 
credit derivative are triggered when the obligor fails to pay under the 
terms of the hedged exposure.
    (c) Risk parameters for hedged exposures--(1) PD substitution 
approach--(i) Full coverage. If an eligible guarantee or eligible 
credit derivative meets the conditions in paragraphs (a) and (b) of 
this section and the protection amount (P) of the guarantee or credit 
derivative is greater than or equal to the EAD of the hedged exposure, 
an FDIC-supervised institution may recognize the guarantee or credit 
derivative in determining the FDIC-supervised institution's risk-based 
capital requirement for the hedged exposure by substituting the PD 
associated with the rating grade of the protection provider for the PD 
associated with the rating grade of the obligor in the risk-based 
capital formula applicable to the guarantee or credit derivative in 
Table 1 of Sec.  324.131 and using the appropriate LGD as described in 
paragraph (c)(1)(iii) of this section. If the FDIC-supervised 
institution determines that full substitution of the protection 
provider's PD leads to an inappropriate degree of risk mitigation, the 
FDIC-supervised institution may substitute a higher PD than that of the 
protection provider.
    (ii) Partial coverage. If an eligible guarantee or eligible credit 
derivative meets the conditions in paragraphs (a) and (b) of this 
section and P of the guarantee or credit derivative is less than the 
EAD of the hedged exposure, the FDIC-supervised institution must treat 
the hedged exposure as two separate exposures (protected and 
unprotected) in order to recognize the credit risk mitigation benefit 
of the guarantee or credit derivative.
    (A) The FDIC-supervised institution must calculate its risk-based 
capital requirement for the protected exposure under Sec.  324.131, 
where PD is the protection provider's PD, LGD is determined under 
paragraph (c)(1)(iii) of this section, and EAD is P. If the FDIC-
supervised institution determines that full substitution leads to an 
inappropriate degree of risk mitigation, the FDIC-supervised 
institution may use a higher PD than that of the protection provider.
    (B) The FDIC-supervised institution must calculate its risk-based 
capital requirement for the unprotected exposure under Sec.  324.131, 
where PD is the obligor's PD, LGD is the hedged exposure's LGD (not 
adjusted to reflect the guarantee or credit derivative), and EAD is the 
EAD of the original hedged exposure minus P.
    (C) The treatment in paragraph (c)(1)(ii) of this section is 
applicable when the credit risk of a wholesale exposure is covered on a 
partial pro rata basis or when an adjustment is made to the effective 
notional amount of the guarantee or credit derivative under paragraphs 
(d), (e), or (f) of this section.
    (iii) LGD of hedged exposures. The LGD of a hedged exposure under 
the PD substitution approach is equal to:
    (A) The lower of the LGD of the hedged exposure (not adjusted to 
reflect the guarantee or credit derivative) and the LGD of the 
guarantee or credit derivative, if the guarantee or credit derivative 
provides the FDIC-supervised institution with the option to receive 
immediate payout upon triggering the protection; or
    (B) The LGD of the guarantee or credit derivative, if the guarantee 
or credit derivative does not provide the FDIC-supervised institution 
with the option to receive immediate payout upon triggering the 
protection.
    (2) LGD adjustment approach--(i) Full coverage. If an eligible 
guarantee or eligible credit derivative meets the conditions in 
paragraphs (a) and (b) of this section and the protection amount (P) of 
the guarantee or credit derivative is greater than or equal to the EAD 
of the hedged exposure, the FDIC-supervised institution's risk-based 
capital requirement for the hedged exposure is the greater of:
    (A) The risk-based capital requirement for the exposure as 
calculated under Sec.  324.131, with the

[[Page 55551]]

LGD of the exposure adjusted to reflect the guarantee or credit 
derivative; or
    (B) The risk-based capital requirement for a direct exposure to the 
protection provider as calculated under Sec.  324.131, using the PD for 
the protection provider, the LGD for the guarantee or credit 
derivative, and an EAD equal to the EAD of the hedged exposure.
    (ii) Partial coverage. If an eligible guarantee or eligible credit 
derivative meets the conditions in paragraphs (a) and (b) of this 
section and the protection amount (P) of the guarantee or credit 
derivative is less than the EAD of the hedged exposure, the FDIC-
supervised institution must treat the hedged exposure as two separate 
exposures (protected and unprotected) in order to recognize the credit 
risk mitigation benefit of the guarantee or credit derivative.
    (A) The FDIC-supervised institution's risk-based capital 
requirement for the protected exposure would be the greater of:
    (1) The risk-based capital requirement for the protected exposure 
as calculated under Sec.  324.131, with the LGD of the exposure 
adjusted to reflect the guarantee or credit derivative and EAD set 
equal to P; or
    (2) The risk-based capital requirement for a direct exposure to the 
guarantor as calculated under Sec.  324.131, using the PD for the 
protection provider, the LGD for the guarantee or credit derivative, 
and an EAD set equal to P.
    (B) The FDIC-supervised institution must calculate its risk-based 
capital requirement for the unprotected exposure under Sec.  324.131, 
where PD is the obligor's PD, LGD is the hedged exposure's LGD (not 
adjusted to reflect the guarantee or credit derivative), and EAD is the 
EAD of the original hedged exposure minus P.
    (3) M of hedged exposures. For purposes of this paragraph (c), the 
M of the hedged exposure is the same as the M of the exposure if it 
were unhedged.
    (d) Maturity mismatch. (1) An FDIC-supervised institution that 
recognizes an eligible guarantee or eligible credit derivative in 
determining its risk-based capital requirement for a hedged exposure 
must adjust the effective notional amount of the credit risk mitigant 
to reflect any maturity mismatch between the hedged exposure and the 
credit risk mitigant.
    (2) A maturity mismatch occurs when the residual maturity of a 
credit risk mitigant is less than that of the hedged exposure(s).
    (3) The residual maturity of a hedged exposure is the longest 
possible remaining time before the obligor is scheduled to fulfil its 
obligation on the exposure. If a credit risk mitigant has embedded 
options that may reduce its term, the FDIC-supervised institution 
(protection purchaser) must use the shortest possible residual maturity 
for the credit risk mitigant. If a call is at the discretion of the 
protection provider, the residual maturity of the credit risk mitigant 
is at the first call date. If the call is at the discretion of the 
FDIC-supervised institution (protection purchaser), but the terms of 
the arrangement at origination of the credit risk mitigant contain a 
positive incentive for the FDIC-supervised institution to call the 
transaction before contractual maturity, the remaining time to the 
first call date is the residual maturity of the credit risk 
mitigant.\26\
---------------------------------------------------------------------------

    \26\ For example, where there is a step-up in cost in 
conjunction with a call feature or where the effective cost of 
protection increases over time even if credit quality remains the 
same or improves, the residual maturity of the credit risk mitigant 
will be the remaining time to the first call.
---------------------------------------------------------------------------

    (4) A credit risk mitigant with a maturity mismatch may be 
recognized only if its original maturity is greater than or equal to 
one year and its residual maturity is greater than three months.
    (5) When a maturity mismatch exists, the FDIC-supervised 
institution must apply the following adjustment to the effective 
notional amount of the credit risk mitigant: Pm = E x (t-
0.25)/(T-0.25), where:
    (i) Pm equals effective notional amount of the credit 
risk mitigant, adjusted for maturity mismatch;
    (ii) E equals effective notional amount of the credit risk 
mitigant;
    (iii) t equals the lesser of T or the residual maturity of the 
credit risk mitigant, expressed in years; and
    (iv) T equals the lesser of five or the residual maturity of the 
hedged exposure, expressed in years.
    (e) Credit derivatives without restructuring as a credit event. If 
an FDIC-supervised institution recognizes an eligible credit derivative 
that does not include as a credit event a restructuring of the hedged 
exposure involving forgiveness or postponement of principal, interest, 
or fees that results in a credit loss event (that is, a charge-off, 
specific provision, or other similar debit to the profit and loss 
account), the FDIC-supervised institution must apply the following 
adjustment to the effective notional amount of the credit derivative: 
Pr = Pm x 0.60, where:
    (1) Pr equals effective notional amount of the credit 
risk mitigant, adjusted for lack of restructuring event (and maturity 
mismatch, if applicable); and
    (2) Pm equals effective notional amount of the credit 
risk mitigant adjusted for maturity mismatch (if applicable).
    (f) Currency mismatch. (1) If an FDIC-supervised institution 
recognizes an eligible guarantee or eligible credit derivative that is 
denominated in a currency different from that in which the hedged 
exposure is denominated, the FDIC-supervised institution must apply the 
following formula to the effective notional amount of the guarantee or 
credit derivative: Pc = Pr x (1-HFX), 
where:
    (i) Pc equals effective notional amount of the credit 
risk mitigant, adjusted for currency mismatch (and maturity mismatch 
and lack of restructuring event, if applicable);
    (ii) Pr equals effective notional amount of the credit 
risk mitigant (adjusted for maturity mismatch and lack of restructuring 
event, if applicable); and
    (iii) HFX equals haircut appropriate for the currency 
mismatch between the credit risk mitigant and the hedged exposure.
    (2) An FDIC-supervised institution must set HFX equal to 
8 percent unless it qualifies for the use of and uses its own internal 
estimates of foreign exchange volatility based on a ten-business-day 
holding period and daily marking-to-market and remargining. An FDIC-
supervised institution qualifies for the use of its own internal 
estimates of foreign exchange volatility if it qualifies for:
    (i) The own-estimates haircuts in Sec.  324.132(b)(2)(iii);
    (ii) The simple VaR methodology in Sec.  324.132(b)(3); or
    (iii) The internal models methodology in Sec.  324.132(d).
    (3) An FDIC-supervised institution must adjust HFX 
calculated in paragraph (f)(2) of this section upward if the FDIC-
supervised institution revalues the guarantee or credit derivative less 
frequently than once every ten business days using the square root of 
time formula provided in Sec.  324.132(b)(2)(iii)(A)(2).


Sec.  324.135  Guarantees and credit derivatives: Double default 
treatment.

    (a) Eligibility and operational criteria for double default 
treatment. An FDIC-supervised institution may recognize the credit risk 
mitigation benefits of a guarantee or credit derivative covering an 
exposure described in Sec.  324.134(a)(1) by applying the double 
default treatment in this section if all the following criteria are 
satisfied:
    (1) The hedged exposure is fully covered or covered on a pro rata 
basis by:
    (i) An eligible guarantee issued by an eligible double default 
guarantor; or

[[Page 55552]]

    (ii) An eligible credit derivative that meets the requirements of 
Sec.  324.134(b)(2) and that is issued by an eligible double default 
guarantor.
    (2) The guarantee or credit derivative is:
    (i) An uncollateralized guarantee or uncollateralized credit 
derivative (for example, a credit default swap) that provides 
protection with respect to a single reference obligor; or
    (ii) An nth-to-default credit derivative (subject to the 
requirements of Sec.  324.142(m)).
    (3) The hedged exposure is a wholesale exposure (other than a 
sovereign exposure).
    (4) The obligor of the hedged exposure is not:
    (i) An eligible double default guarantor or an affiliate of an 
eligible double default guarantor; or
    (ii) An affiliate of the guarantor.
    (5) The FDIC-supervised institution does not recognize any credit 
risk mitigation benefits of the guarantee or credit derivative for the 
hedged exposure other than through application of the double default 
treatment as provided in this section.
    (6) The FDIC-supervised institution has implemented a process 
(which has received the prior, written approval of the FDIC) to detect 
excessive correlation between the creditworthiness of the obligor of 
the hedged exposure and the protection provider. If excessive 
correlation is present, the FDIC-supervised institution may not use the 
double default treatment for the hedged exposure.
    (b) Full coverage. If a transaction meets the criteria in paragraph 
(a) of this section and the protection amount (P) of the guarantee or 
credit derivative is at least equal to the EAD of the hedged exposure, 
the FDIC-supervised institution may determine its risk-weighted asset 
amount for the hedged exposure under paragraph (e) of this section.
    (c) Partial coverage. If a transaction meets the criteria in 
paragraph (a) of this section and the protection amount (P) of the 
guarantee or credit derivative is less than the EAD of the hedged 
exposure, the FDIC-supervised institution must treat the hedged 
exposure as two separate exposures (protected and unprotected) in order 
to recognize double default treatment on the protected portion of the 
exposure:
    (1) For the protected exposure, the FDIC-supervised institution 
must set EAD equal to P and calculate its risk-weighted asset amount as 
provided in paragraph (e) of this section; and
    (2) For the unprotected exposure, the FDIC-supervised institution 
must set EAD equal to the EAD of the original exposure minus P and then 
calculate its risk-weighted asset amount as provided in Sec.  324.131.
    (d) Mismatches. For any hedged exposure to which an FDIC-supervised 
institution applies double default treatment under this part, the FDIC-
supervised institution must make applicable adjustments to the 
protection amount as required in Sec. Sec.  324.134(d), (e), and (f).
    (e) The double default dollar risk-based capital requirement. The 
dollar risk-based capital requirement for a hedged exposure to which an 
FDIC-supervised institution has applied double default treatment is 
KDD multiplied by the EAD of the exposure. KDD is 
calculated according to the following formula: KDD = 
Ko x (0.15 + 160 x PDg),

where:
(1)
[GRAPHIC] [TIFF OMITTED] TR10SE13.039

(2) PDg equals PD of the protection provider.
(3) PDo equals PD of the obligor of the hedged exposure.
(4) LGDg equals:
(i) The lower of the LGD of the hedged exposure (not adjusted to 
reflect the guarantee or credit derivative) and the LGD of the 
guarantee or credit derivative, if the guarantee or credit 
derivative provides the FDIC-supervised institution with the option 
to receive immediate payout on triggering the protection; or
(ii) The LGD of the guarantee or credit derivative, if the guarantee 
or credit derivative does not provide the FDIC-supervised 
institution with the option to receive immediate payout on 
triggering the protection; and
(5) [rho]os (asset value correlation of the obligor) is 
calculated according to the appropriate formula for (R) provided in 
Table 1 in Sec.  324.131, with PD equal to PDo.
(6) b (maturity adjustment coefficient) is calculated according to 
the formula for b provided in Table 1 in Sec.  324.131, with PD 
equal to the lesser of PDo and PDg; and
(7) M (maturity) is the effective maturity of the guarantee or 
credit derivative, which may not be less than one year or greater 
than five years.


Sec.  324.136  Unsettled transactions.

    (a) Definitions. For purposes of this section:
    (1) Delivery-versus-payment (DvP) transaction means a securities or 
commodities transaction in which the buyer is obligated to make payment 
only if the seller has made delivery of the securities or commodities 
and the seller is obligated to deliver the securities or commodities 
only if the buyer has made payment.
    (2) Payment-versus-payment (PvP) transaction means a foreign 
exchange transaction in which each counterparty is obligated to make a 
final transfer of one or more currencies only if the other counterparty 
has made a final transfer of one or more currencies.
    (3) A transaction has a normal settlement period if the contractual 
settlement period for the transaction is equal to or less than the 
market standard for the instrument underlying the transaction and equal 
to or less than five business days.
    (4) The positive current exposure of an FDIC-supervised institution 
for a transaction is the difference between the transaction value at 
the agreed settlement price and the current market price of the 
transaction, if the difference results in a credit exposure of the 
FDIC-supervised institution to the counterparty.
    (b) Scope. This section applies to all transactions involving 
securities, foreign exchange instruments, and commodities that have a 
risk of delayed settlement or delivery. This section does not apply to:
    (1) Cleared transactions that are subject to daily marking-to-
market and daily receipt and payment of variation margin;
    (2) Repo-style transactions, including unsettled repo-style 
transactions (which are addressed in Sec. Sec.  324.131 and 324.132);
    (3) One-way cash payments on OTC derivative contracts (which are 
addressed in Sec. Sec.  324.131 and 324.132); or
    (4) Transactions with a contractual settlement period that is 
longer than the normal settlement period (which are treated as OTC 
derivative contracts and addressed in Sec. Sec.  324.131 and 324.132).

[[Page 55553]]

    (c) System-wide failures. In the case of a system-wide failure of a 
settlement or clearing system, or a central counterparty, the FDIC may 
waive risk-based capital requirements for unsettled and failed 
transactions until the situation is rectified.
    (d) Delivery-versus-payment (DvP) and payment-versus-payment (PvP) 
transactions. An FDIC-supervised institution must hold risk-based 
capital against any DvP or PvP transaction with a normal settlement 
period if the FDIC-supervised institution's counterparty has not made 
delivery or payment within five business days after the settlement 
date. The FDIC-supervised institution must determine its risk-weighted 
asset amount for such a transaction by multiplying the positive current 
exposure of the transaction for the FDIC-supervised institution by the 
appropriate risk weight in Table 1 to Sec.  324.136.

    Table 1 to Sec.   324.136--Risk Weights for Unsettled DvP and PvP
                              Transactions
------------------------------------------------------------------------
                                                      Risk weight to be
     Number of business days after contractual       applied to positive
                  settlement date                      current exposure
                                                         (in percent)
------------------------------------------------------------------------
From 5 to 15.......................................                100
From 16 to 30......................................                625
From 31 to 45......................................                937.5
46 or more.........................................              1,250
------------------------------------------------------------------------

    (e) Non-DvP/non-PvP (non-delivery-versus-payment/non-payment-
versus-payment) transactions. (1) An FDIC-supervised institution must 
hold risk-based capital against any non-DvP/non-PvP transaction with a 
normal settlement period if the FDIC-supervised institution has 
delivered cash, securities, commodities, or currencies to its 
counterparty but has not received its corresponding deliverables by the 
end of the same business day. The FDIC-supervised institution must 
continue to hold risk-based capital against the transaction until the 
FDIC-supervised institution has received its corresponding 
deliverables.
    (2) From the business day after the FDIC-supervised institution has 
made its delivery until five business days after the counterparty 
delivery is due, the FDIC-supervised institution must calculate its 
risk-based capital requirement for the transaction by treating the 
current fair value of the deliverables owed to the FDIC-supervised 
institution as a wholesale exposure.
    (i) An FDIC-supervised institution may use a 45 percent LGD for the 
transaction rather than estimating LGD for the transaction provided the 
FDIC-supervised institution uses the 45 percent LGD for all 
transactions described in Sec.  324.135(e)(1) and (e)(2).
    (ii) An FDIC-supervised institution may use a 100 percent risk 
weight for the transaction provided the FDIC-supervised institution 
uses this risk weight for all transactions described in Sec. Sec.  
324.135(e)(1) and (e)(2).
    (3) If the FDIC-supervised institution has not received its 
deliverables by the fifth business day after the counterparty delivery 
was due, the FDIC-supervised institution must apply a 1,250 percent 
risk weight to the current fair value of the deliverables owed to the 
FDIC-supervised institution.
    (f) Total risk-weighted assets for unsettled transactions. Total 
risk-weighted assets for unsettled transactions is the sum of the risk-
weighted asset amounts of all DvP, PvP, and non-DvP/non-PvP 
transactions.


Sec. Sec.  324.137 through 324.140  [Reserved]

Risk-Weighted Assets for Securitization Exposures


Sec.  324.141  Operational criteria for recognizing the transfer of 
risk.

    (a) Operational criteria for traditional securitizations. An FDIC-
supervised institution that transfers exposures it has originated or 
purchased to a securitization SPE or other third party in connection 
with a traditional securitization may exclude the exposures from the 
calculation of its risk-weighted assets only if each of the conditions 
in this paragraph (a) is satisfied. An FDIC-supervised institution that 
meets these conditions must hold risk-based capital against any 
securitization exposures it retains in connection with the 
securitization. An FDIC-supervised institution that fails to meet these 
conditions must hold risk-based capital against the transferred 
exposures as if they had not been securitized and must deduct from 
common equity tier 1 capital any after-tax gain-on-sale resulting from 
the transaction. The conditions are:
    (1) The exposures are not reported on the FDIC-supervised 
institution's consolidated balance sheet under GAAP;
    (2) The FDIC-supervised institution has transferred to one or more 
third parties credit risk associated with the underlying exposures;
    (3) Any clean-up calls relating to the securitization are eligible 
clean-up calls; and
    (4) The securitization does not:
    (i) Include one or more underlying exposures in which the borrower 
is permitted to vary the drawn amount within an agreed limit under a 
line of credit; and
    (ii) Contain an early amortization provision.
    (b) Operational criteria for synthetic securitizations. For 
synthetic securitizations, an FDIC-supervised institution may recognize 
for risk-based capital purposes under this subpart the use of a credit 
risk mitigant to hedge underlying exposures only if each of the 
conditions in this paragraph (b) is satisfied. An FDIC-supervised 
institution that meets these conditions must hold risk-based capital 
against any credit risk of the exposures it retains in connection with 
the synthetic securitization. An FDIC-supervised institution that fails 
to meet these conditions or chooses not to recognize the credit risk 
mitigant for purposes of this section must hold risk-based capital 
under this subpart against the underlying exposures as if they had not 
been synthetically securitized. The conditions are:
    (1) The credit risk mitigant is:
    (i) Financial collateral; or
    (ii) A guarantee that meets all of the requirements of an eligible 
guarantee in Sec.  324.2 except for paragraph (3) of the definition; or
    (iii) A credit derivative that meets all of the requirements of an 
eligible credit derivative except for paragraph (3) of the definition 
of eligible guarantee in Sec.  324.2.
    (2) The FDIC-supervised institution transfers credit risk 
associated with the underlying exposures to third parties, and the 
terms and conditions in the credit risk mitigants employed do not 
include provisions that:
    (i) Allow for the termination of the credit protection due to 
deterioration in the credit quality of the underlying exposures;
    (ii) Require the FDIC-supervised institution to alter or replace 
the underlying exposures to improve the credit quality of the 
underlying exposures;
    (iii) Increase the FDIC-supervised institution's cost of credit 
protection in response to deterioration in the credit quality of the 
underlying exposures;
    (iv) Increase the yield payable to parties other than the FDIC-
supervised institution in response to a deterioration in the credit 
quality of the underlying exposures; or
    (v) Provide for increases in a retained first loss position or 
credit enhancement provided by the FDIC-supervised institution after 
the inception of the securitization;
    (3) The FDIC-supervised institution obtains a well-reasoned opinion 
from legal counsel that confirms the

[[Page 55554]]

enforceability of the credit risk mitigant in all relevant 
jurisdictions; and
    (4) Any clean-up calls relating to the securitization are eligible 
clean-up calls.
    (c) Due diligence requirements for securitization exposures. (1) 
Except for exposures that are deducted from common equity tier 1 
capital and exposures subject to Sec.  324.142(k), if an FDIC-
supervised institution is unable to demonstrate to the satisfaction of 
the FDIC a comprehensive understanding of the features of a 
securitization exposure that would materially affect the performance of 
the exposure, the FDIC-supervised institution must assign a 1,250 
percent risk weight to the securitization exposure. The FDIC-supervised 
institution's analysis must be commensurate with the complexity of the 
securitization exposure and the materiality of the position in relation 
to regulatory capital according to this part.
    (2) An FDIC-supervised institution must demonstrate its 
comprehensive understanding of a securitization exposure under 
paragraph (c)(1) of this section, for each securitization exposure by:
    (i) Conducting an analysis of the risk characteristics of a 
securitization exposure prior to acquiring the exposure and document 
such analysis within three business days after acquiring the exposure, 
considering:
    (A) Structural features of the securitization that would materially 
impact the performance of the exposure, for example, the contractual 
cash flow waterfall, waterfall-related triggers, credit enhancements, 
liquidity enhancements, fair value triggers, the performance of 
organizations that service the position, and deal-specific definitions 
of default;
    (B) Relevant information regarding the performance of the 
underlying credit exposure(s), for example, the percentage of loans 30, 
60, and 90 days past due; default rates; prepayment rates; loans in 
foreclosure; property types; occupancy; average credit score or other 
measures of creditworthiness; average loan-to-value ratio; and industry 
and geographic diversification data on the underlying exposure(s);
    (C) Relevant market data of the securitization, for example, bid-
ask spreads, most recent sales price and historical price volatility, 
trading volume, implied market rating, and size, depth and 
concentration level of the market for the securitization; and
    (D) For resecuritization exposures, performance information on the 
underlying securitization exposures, for example, the issuer name and 
credit quality, and the characteristics and performance of the 
exposures underlying the securitization exposures; and
    (ii) On an on-going basis (no less frequently than quarterly), 
evaluating, reviewing, and updating as appropriate the analysis 
required under this section for each securitization exposure.


Sec.  324.142  Risk-weighted assets for securitization exposures.

    (a) Hierarchy of approaches. Except as provided elsewhere in this 
section and in Sec.  324.141:
    (1) An FDIC-supervised institution must deduct from common equity 
tier 1 capital any after-tax gain-on-sale resulting from a 
securitization and must apply a 1,250 percent risk weight to the 
portion of any CEIO that does not constitute after tax gain-on-sale;
    (2) If a securitization exposure does not require deduction or a 
1,250 percent risk weight under paragraph (a)(1) of this section, the 
FDIC-supervised institution must apply the supervisory formula approach 
in Sec.  324.143 to the exposure if the FDIC-supervised institution and 
the exposure qualify for the supervisory formula approach according to 
Sec.  324.143(a);
    (3) If a securitization exposure does not require deduction or a 
1,250 percent risk weight under paragraph (a)(1) of this section and 
does not qualify for the supervisory formula approach, the FDIC-
supervised institution may apply the simplified supervisory formula 
approach under Sec.  324.144;
    (4) If a securitization exposure does not require deduction or a 
1,250 percent risk weight under paragraph (a)(1) of this section, does 
not qualify for the supervisory formula approach in Sec.  324.143, and 
the FDIC-supervised institution does not apply the simplified 
supervisory formula approach in Sec.  324.144, the FDIC-supervised 
institution must apply a 1,250 percent risk weight to the exposure; and
    (5) If a securitization exposure is a derivative contract (other 
than protection provided by an FDIC-supervised institution in the form 
of a credit derivative) that has a first priority claim on the cash 
flows from the underlying exposures (notwithstanding amounts due under 
interest rate or currency derivative contracts, fees due, or other 
similar payments), an FDIC-supervised institution may choose to set the 
risk-weighted asset amount of the exposure equal to the amount of the 
exposure as determined in paragraph (e) of this section rather than 
apply the hierarchy of approaches described in paragraphs (a)(1) 
through (4) of this section.
    (b) Total risk-weighted assets for securitization exposures. An 
FDIC-supervised institution's total risk-weighted assets for 
securitization exposures is equal to the sum of its risk-weighted 
assets calculated using Sec. Sec.  324.141 through 146.
    (c) Deductions. An FDIC-supervised institution may calculate any 
deduction from common equity tier 1 capital for a securitization 
exposure net of any DTLs associated with the securitization exposure.
    (d) Maximum risk-based capital requirement. Except as provided in 
Sec.  324.141(c), unless one or more underlying exposures does not meet 
the definition of a wholesale, retail, securitization, or equity 
exposure, the total risk-based capital requirement for all 
securitization exposures held by a single FDIC-supervised institution 
associated with a single securitization (excluding any risk-based 
capital requirements that relate to the FDIC-supervised institution's 
gain-on-sale or CEIOs associated with the securitization) may not 
exceed the sum of:
    (1) The FDIC-supervised institution's total risk-based capital 
requirement for the underlying exposures calculated under this subpart 
as if the FDIC-supervised institution directly held the underlying 
exposures; and
    (2) The total ECL of the underlying exposures calculated under this 
subpart.
    (e) Exposure amount of a securitization exposure. (1) The exposure 
amount of an on-balance sheet securitization exposure that is not a 
repo-style transaction, eligible margin loan, OTC derivative contract, 
or cleared transaction is the FDIC-supervised institution's carrying 
value.
    (2) Except as provided in paragraph (m) of this section, the 
exposure amount of an off-balance sheet securitization exposure that is 
not an OTC derivative contract (other than a credit derivative), repo-
style transaction, eligible margin loan, or cleared transaction (other 
than a credit derivative) is the notional amount of the exposure. For 
an off-balance-sheet securitization exposure to an ABCP program, such 
as an eligible ABCP liquidity facility, the notional amount may be 
reduced to the maximum potential amount that the FDIC-supervised 
institution could be required to fund given the ABCP program's current 
underlying assets (calculated without regard to the current credit 
quality of those assets).
    (3) The exposure amount of a securitization exposure that is a 
repo-style transaction, eligible margin loan, or OTC derivative 
contract (other than a credit derivative) or cleared transaction (other 
than a credit derivative) is the

[[Page 55555]]

EAD of the exposure as calculated in Sec.  324.132 or Sec.  324.133.
    (f) Overlapping exposures. If an FDIC-supervised institution has 
multiple securitization exposures that provide duplicative coverage of 
the underlying exposures of a securitization (such as when an FDIC-
supervised institution provides a program-wide credit enhancement and 
multiple pool-specific liquidity facilities to an ABCP program), the 
FDIC-supervised institution is not required to hold duplicative risk-
based capital against the overlapping position. Instead, the FDIC-
supervised institution may assign to the overlapping securitization 
exposure the applicable risk-based capital treatment under this subpart 
that results in the highest risk-based capital requirement.
    (g) Securitizations of non-IRB exposures. Except as provided in 
Sec.  324.141(c), if an FDIC-supervised institution has a 
securitization exposure where any underlying exposure is not a 
wholesale exposure, retail exposure, securitization exposure, or equity 
exposure, the FDIC-supervised institution:
    (1) Must deduct from common equity tier 1 capital any after-tax 
gain-on-sale resulting from the securitization and apply a 1,250 
percent risk weight to the portion of any CEIO that does not constitute 
gain-on-sale, if the FDIC-supervised institution is an originating 
FDIC-supervised institution;
    (2) May apply the simplified supervisory formula approach in Sec.  
324.144 to the exposure, if the securitization exposure does not 
require deduction or a 1,250 percent risk weight under paragraph (g)(1) 
of this section;
    (3) Must assign a 1,250 percent risk weight to the exposure if the 
securitization exposure does not require deduction or a 1,250 percent 
risk weight under paragraph (g)(1) of this section, does not qualify 
for the supervisory formula approach in Sec.  324.143, and the FDIC-
supervised institution does not apply the simplified supervisory 
formula approach in Sec.  324.144 to the exposure.
    (h) Implicit support. If an FDIC-supervised institution provides 
support to a securitization in excess of the FDIC-supervised 
institution's contractual obligation to provide credit support to the 
securitization (implicit support):
    (1) The FDIC-supervised institution must calculate a risk-weighted 
asset amount for underlying exposures associated with the 
securitization as if the exposures had not been securitized and must 
deduct from common equity tier 1 capital any after-tax gain-on-sale 
resulting from the securitization; and
    (2) The FDIC-supervised institution must disclose publicly:
    (i) That it has provided implicit support to the securitization; 
and
    (ii) The regulatory capital impact to the FDIC-supervised 
institution of providing such implicit support.
    (i) Undrawn portion of a servicer cash advance facility. (1) 
Notwithstanding any other provision of this subpart, an FDIC-supervised 
institution that is a servicer under an eligible servicer cash advance 
facility is not required to hold risk-based capital against potential 
future cash advance payments that it may be required to provide under 
the contract governing the facility.
    (2) For an FDIC-supervised institution that acts as a servicer, the 
exposure amount for a servicer cash advance facility that is not an 
eligible servicer cash advance facility is equal to the amount of all 
potential future cash advance payments that the FDIC-supervised 
institution may be contractually required to provide during the 
subsequent 12 month period under the contract governing the facility.
    (j) Interest-only mortgage-backed securities. Regardless of any 
other provisions in this part, the risk weight for a non-credit-
enhancing interest-only mortgage-backed security may not be less than 
100 percent.
    (k) Small-business loans and leases on personal property 
transferred with recourse. (1) Notwithstanding any other provisions of 
this subpart E, an FDIC-supervised institution that has transferred 
small-business loans and leases on personal property (small-business 
obligations) with recourse must include in risk-weighted assets only 
the contractual amount of retained recourse if all the following 
conditions are met:
    (i) The transaction is a sale under GAAP.
    (ii) The FDIC-supervised institution establishes and maintains, 
pursuant to GAAP, a non-capital reserve sufficient to meet the FDIC-
supervised institution's reasonably estimated liability under the 
recourse arrangement.
    (iii) The loans and leases are to businesses that meet the criteria 
for a small-business concern established by the Small Business 
Administration under section 3(a) of the Small Business Act (15 U.S.C. 
632 et seq.); and
    (iv) The FDIC-supervised institution is well-capitalized, as 
defined in subpart H of this part. For purposes of determining whether 
an FDIC-supervised institution is well capitalized for purposes of this 
paragraph, the FDIC-supervised institution's capital ratios must be 
calculated without regard to the capital treatment for transfers of 
small-business obligations with recourse specified in paragraph (k)(1) 
of this section.
    (2) The total outstanding amount of recourse retained by an FDIC-
supervised institution on transfers of small-business obligations 
subject to paragraph (k)(1) of this section cannot exceed 15 percent of 
the FDIC-supervised institution's total capital.
    (3) If an FDIC-supervised institution ceases to be well capitalized 
or exceeds the 15 percent capital limitation in paragraph (k)(2) of 
this section, the preferential capital treatment specified in paragraph 
(k)(1) of this section will continue to apply to any transfers of 
small-business obligations with recourse that occurred during the time 
that the FDIC-supervised institution was well capitalized and did not 
exceed the capital limit.
    (4) The risk-based capital ratios of an FDIC-supervised institution 
must be calculated without regard to the capital treatment for 
transfers of small-business obligations with recourse specified in 
paragraph (k)(1) of this section.
    (l) Nth-to-default credit derivatives--(1) Protection provider. An 
FDIC-supervised institution must determine a risk weight using the 
supervisory formula approach (SFA) pursuant to Sec.  324.143 or the 
simplified supervisory formula approach (SSFA) pursuant to Sec.  
324.144 for an n^th-to-default credit derivative in 
accordance with this paragraph. In the case of credit protection sold, 
an FDIC-supervised institution must determine its exposure in the 
n^th-to-default credit derivative as the largest notional 
amount of all the underlying exposures.
    (2) For purposes of determining the risk weight for an 
n^th-to-default credit derivative using the SFA or the SSFA, 
the FDIC-supervised institution must calculate the attachment point and 
detachment point of its exposure as follows:
    (i) The attachment point (parameter A) is the ratio of the sum of 
the notional amounts of all underlying exposures that are subordinated 
to the FDIC-supervised institution's exposure to the total notional 
amount of all underlying exposures. For purposes of the SSFA, parameter 
A is expressed as a decimal value between zero and one. For purposes of 
using the SFA to calculate the risk weight for its exposure in an 
n^th-to-default credit derivative, parameter A must be set 
equal to the credit enhancement level (L) input to the SFA formula. In 
the case of a first-to-default credit derivative, there are no 
underlying exposures that are subordinated to the FDIC-supervised

[[Page 55556]]

institution's exposure. In the case of a second-or-subsequent-to-
default credit derivative, the smallest (n-1) risk-weighted asset 
amounts of the underlying exposure(s) are subordinated to the FDIC-
supervised institution's exposure.
    (ii) The detachment point (parameter D) equals the sum of parameter 
A plus the ratio of the notional amount of the FDIC-supervised 
institution's exposure in the n^th-to-default credit 
derivative to the total notional amount of all underlying exposures. 
For purposes of the SSFA, parameter W is expressed as a decimal value 
between zero and one. For purposes of the SFA, parameter D must be set 
to equal L plus the thickness of tranche T input to the SFA formula.
    (3) An FDIC-supervised institution that does not use the SFA or the 
SSFA to determine a risk weight for its exposure in an n^th-
to-default credit derivative must assign a risk weight of 1,250 percent 
to the exposure.
    (4) Protection purchaser--(i) First-to-default credit derivatives. 
An FDIC-supervised institution that obtains credit protection on a 
group of underlying exposures through a first-to-default credit 
derivative that meets the rules of recognition of Sec.  324.134(b) must 
determine its risk-based capital requirement under this subpart for the 
underlying exposures as if the FDIC-supervised institution 
synthetically securitized the underlying exposure with the lowest risk-
based capital requirement and had obtained no credit risk mitigant on 
the other underlying exposures. An FDIC-supervised institution must 
calculate a risk-based capital requirement for counterparty credit risk 
according to Sec.  324.132 for a first-to-default credit derivative 
that does not meet the rules of recognition of Sec.  324.134(b).
    (ii) Second-or-subsequent-to-default credit derivatives. (A) An 
FDIC-supervised institution that obtains credit protection on a group 
of underlying exposures through a n^th-to-default credit 
derivative that meets the rules of recognition of Sec.  324.134(b) 
(other than a first-to-default credit derivative) may recognize the 
credit risk mitigation benefits of the derivative only if:
    (1) The FDIC-supervised institution also has obtained credit 
protection on the same underlying exposures in the form of first-
through-(n-1)-to-default credit derivatives; or
    (2) If n-1 of the underlying exposures have already defaulted.
    (B) If an FDIC-supervised institution satisfies the requirements of 
paragraph (l)(3)(ii)(A) of this section, the FDIC-supervised 
institution must determine its risk-based capital requirement for the 
underlying exposures as if the bank had only synthetically securitized 
the underlying exposure with the n^th smallest risk-based 
capital requirement and had obtained no credit risk mitigant on the 
other underlying exposures.
    (C) An FDIC-supervised institution must calculate a risk-based 
capital requirement for counterparty credit risk according to Sec.  
324.132 for a nth-to-default credit derivative that does not meet the 
rules of recognition of Sec.  324.134(b).
    (m) Guarantees and credit derivatives other than nth-to-default 
credit derivatives--(1) Protection provider. For a guarantee or credit 
derivative (other than an nth-to-default credit derivative) provided by 
an FDIC-supervised institution that covers the full amount or a pro 
rata share of a securitization exposure's principal and interest, the 
FDIC-supervised institution must risk weight the guarantee or credit 
derivative as if it holds the portion of the reference exposure covered 
by the guarantee or credit derivative.
    (2) Protection purchaser. (i) An FDIC-supervised institution that 
purchases an OTC credit derivative (other than an n^th-to-
default credit derivative) that is recognized under Sec.  324.145 as a 
credit risk mitigant (including via recognized collateral) is not 
required to compute a separate counterparty credit risk capital 
requirement under Sec.  324.131 in accordance with Sec.  324.132(c)(3).
    (ii) If an FDIC-supervised institution cannot, or chooses not to, 
recognize a purchased credit derivative as a credit risk mitigant under 
Sec.  324.145, the FDIC-supervised institution must determine the 
exposure amount of the credit derivative under Sec.  324.132(c).
    (A) If the FDIC-supervised institution purchases credit protection 
from a counterparty that is not a securitization SPE, the FDIC-
supervised institution must determine the risk weight for the exposure 
according to Sec.  324.131.
    (B) If the FDIC-supervised institution purchases the credit 
protection from a counterparty that is a securitization SPE, the FDIC-
supervised institution must determine the risk weight for the exposure 
according to this Sec.  324.142, including paragraph (a)(5) of this 
section for a credit derivative that has a first priority claim on the 
cash flows from the underlying exposures of the securitization SPE 
(notwithstanding amounts due under interest rate or currency derivative 
contracts, fees due, or other similar payments.


Sec.  324.143  Supervisory formula approach (SFA).

    (a) Eligibility requirements. An FDIC-supervised institution must 
use the SFA to determine its risk-weighted asset amount for a 
securitization exposure if the FDIC-supervised institution can 
calculate on an ongoing basis each of the SFA parameters in paragraph 
(e) of this section.
    (b) Mechanics. The risk-weighted asset amount for a securitization 
exposure equals its SFA risk-based capital requirement as calculated 
under paragraph (c) and (d) of this section, multiplied by 12.5.
    (c) The SFA risk-based capital requirement. (1) If KIRB 
is greater than or equal to L+T, an exposure's SFA risk-based capital 
requirement equals the exposure amount.
    (2) If KIRB is less than or equal to L, an exposure's 
SFA risk-based capital requirement is UE multiplied by TP multiplied by 
the greater of:
    (i) F [middot] T (where F is 0.016 for all securitization 
exposures); or
    (ii) S[L + T] - S[L].
    (3) If KIRB is greater than L and less than L +T, the 
FDIC-supervised institution must apply a 1,250 percent risk weight to 
an amount equal to UE [middot] TP [middot] (KIRB - L), and 
the exposure's SFA risk-based capital requirement is UE multiplied by 
TP multiplied by the greater of:
    (i) F [middot] (T - (KIRB - L)) (where F is 0.016 for 
all other securitization exposures); or
    (ii) S[L + T] - S[KIRB].
    (d) The supervisory formula:

[[Page 55557]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.040

    (e) SFA parameters. For purposes of the calculations in paragraphs 
(c) and (d) of this section:
    (1) Amount of the underlying exposures (UE). UE is the EAD of any 
underlying exposures that are wholesale and retail exposures (including 
the amount of any funded spread accounts, cash collateral accounts, and 
other similar funded credit enhancements) plus the amount of any 
underlying exposures that are securitization exposures (as defined in 
Sec.  324.142(e)) plus the adjusted carrying value of any underlying 
exposures that are equity exposures (as defined in Sec.  324.151(b)).
    (2) Tranche percentage (TP). TP is the ratio of the amount of the 
FDIC-supervised institution's securitization exposure to the amount of 
the tranche that contains the securitization exposure.
    (3) Capital requirement on underlying exposures (KIRB). (i) 
KIRB is the ratio of:
    (A) The sum of the risk-based capital requirements for the 
underlying exposures plus the expected credit losses of the underlying 
exposures (as determined under this subpart E as if the underlying 
exposures were directly held by the FDIC-supervised institution); to
    (B) UE.
    (ii) The calculation of KIRB must reflect the effects of 
any credit risk mitigant applied to the underlying exposures (either to 
an individual underlying exposure, to a group of underlying exposures, 
or to all of the underlying exposures).
    (iii) All assets related to the securitization are treated as 
underlying exposures, including assets in a reserve account (such as a 
cash collateral account).
    (4) Credit enhancement level (L). (i) L is the ratio of:

[[Page 55558]]

    (A) The amount of all securitization exposures subordinated to the 
tranche that contains the FDIC-supervised institution's securitization 
exposure; to
    (B) UE.
    (ii) An FDIC-supervised institution must determine L before 
considering the effects of any tranche-specific credit enhancements.
    (iii) Any gain-on-sale or CEIO associated with the securitization 
may not be included in L.
    (iv) Any reserve account funded by accumulated cash flows from the 
underlying exposures that is subordinated to the tranche that contains 
the FDIC-supervised institution's securitization exposure may be 
included in the numerator and denominator of L to the extent cash has 
accumulated in the account. Unfunded reserve accounts (that is, reserve 
accounts that are to be funded from future cash flows from the 
underlying exposures) may not be included in the calculation of L.
    (v) In some cases, the purchase price of receivables will reflect a 
discount that provides credit enhancement (for example, first loss 
protection) for all or certain tranches of the securitization. When 
this arises, L should be calculated inclusive of this discount if the 
discount provides credit enhancement for the securitization exposure.
    (5) Thickness of tranche (T). T is the ratio of:
    (i) The amount of the tranche that contains the FDIC-supervised 
institution's securitization exposure; to
    (ii) UE.
    (6) Effective number of exposures (N). (i) Unless the FDIC-
supervised institution elects to use the formula provided in paragraph 
(f) of this section,
[GRAPHIC] [TIFF OMITTED] TR10SE13.041

    where EADi represents the EAD associated with the 
i^th instrument in the underlying exposures.
    (ii) Multiple exposures to one obligor must be treated as a single 
underlying exposure.
    (iii) In the case of a resecuritization, the FDIC-supervised 
institution must treat each underlying exposure as a single underlying 
exposure and must not look through to the originally securitized 
underlying exposures.
    (7) Exposure-weighted average loss given default (EWALGD). EWALGD 
is calculated as:
[GRAPHIC] [TIFF OMITTED] TR10SE13.042

    where LGDi represents the average LGD associated with 
all exposures to the i^th obligor. In the case of a 
resecuritization, an LGD of 100 percent must be assumed for the 
underlying exposures that are themselves securitization exposures.
    (f) Simplified method for computing N and EWALGD. (1) If all 
underlying exposures of a securitization are retail exposures, an FDIC-
supervised institution may apply the SFA using the following 
simplifications:
    (i) h = 0; and
    (ii) v = 0.
    (2) Under the conditions in Sec. Sec.  324.143(f)(3) and (f)(4), an 
FDIC-supervised institution may employ a simplified method for 
calculating N and EWALGD.
    (3) If C1 is no more than 0.03, an FDIC-supervised 
institution may set EWALGD = 0.50 if none of the underlying exposures 
is a securitization exposure, or may set EWALGD = 1 if one or more of 
the underlying exposures is a securitization exposure, and may set N 
equal to the following amount:
[GRAPHIC] [TIFF OMITTED] TR10SE13.043

where:
(i) Cm is the ratio of the sum of the amounts of the `m' 
largest underlying exposures to UE; and
(ii) The level of m is to be selected by the FDIC-supervised 
institution.

    (4) Alternatively, if only C1 is available and 
C1 is no more than 0.03, the FDIC-supervised institution may 
set EWALGD = 0.50 if none of the underlying exposures is a 
securitization exposure, or may set EWALGD = 1 if one or more of the 
underlying exposures is a securitization exposure and may set N = 1/
C1.


Sec.  324.144  Simplified supervisory formula approach (SSFA).

    (a) General requirements for the SSFA. To use the SSFA to determine 
the risk weight for a securitization exposure, an FDIC-supervised 
institution must have data that enables it to assign accurately the 
parameters described in paragraph (b) of this section. Data used to 
assign the parameters described in paragraph (b) of this section must 
be the most currently available data; if the contracts governing the 
underlying exposures of the securitization require payments on a 
monthly or quarterly basis, the data used to assign the parameters 
described in paragraph (b) of this section must be no more than 91 
calendar days old. An FDIC-supervised institution that does not have 
the appropriate data to assign the parameters described in paragraph 
(b) of this section must assign a risk weight of 1,250 percent to the 
exposure.
    (b) SSFA parameters. To calculate the risk weight for a 
securitization exposure using the SSFA, an FDIC-supervised institution 
must have accurate information on the following five inputs to the SSFA 
calculation:
    (1) KG is the weighted-average (with unpaid principal 
used as the weight for each exposure) total capital requirement of the 
underlying exposures calculated using subpart D of this part. 
KG is expressed as a decimal value between zero and one 
(that is, an average risk weight of 100 percent represents a value of 
KG equal to 0.08).
    (2) Parameter W is expressed as a decimal value between zero and 
one. Parameter W is the ratio of the sum of the dollar amounts of any 
underlying exposures of the securitization that meet any of the 
criteria as set forth in paragraphs (b)(2)(i) through (vi) of this 
section to the balance, measured in dollars, of underlying exposures:
    (i) Ninety days or more past due;
    (ii) Subject to a bankruptcy or insolvency proceeding;
    (iii) In the process of foreclosure;
    (iv) Held as real estate owned;
    (v) Has contractually deferred payments for 90 days or more, other 
than principal or interest payments deferred on:
    (A) Federally-guaranteed student loans, in accordance with the 
terms of those guarantee programs; or
    (B) Consumer loans, including non-federally-guaranteed student 
loans, provided that such payments are deferred pursuant to provisions

[[Page 55559]]

included in the contract at the time funds are disbursed that provide 
for period(s) of deferral that are not initiated based on changes in 
the creditworthiness of the borrower; or
    (vi) Is in default.
    (3) Parameter A is the attachment point for the exposure, which 
represents the threshold at which credit losses will first be allocated 
to the exposure. Except as provided in Sec.  324.142(l) for nth-to-
default credit derivatives, parameter A equals the ratio of the current 
dollar amount of underlying exposures that are subordinated to the 
exposure of the FDIC-supervised institution to the current dollar 
amount of underlying exposures. Any reserve account funded by the 
accumulated cash flows from the underlying exposures that is 
subordinated to the FDIC-supervised institution's securitization 
exposure may be included in the calculation of parameter A to the 
extent that cash is present in the account. Parameter A is expressed as 
a decimal value between zero and one.
    (4) Parameter D is the detachment point for the exposure, which 
represents the threshold at which credit losses of principal allocated 
to the exposure would result in a total loss of principal. Except as 
provided in Sec.  324.142(l) for n^th-to-default credit 
derivatives, parameter D equals parameter A plus the ratio of the 
current dollar amount of the securitization exposures that are pari 
passu with the exposure (that is, have equal seniority with respect to 
credit risk) to the current dollar amount of the underlying exposures. 
Parameter D is expressed as a decimal value between zero and one.
    (5) A supervisory calibration parameter, p, is equal to 0.5 for 
securitization exposures that are not resecuritization exposures and 
equal to 1.5 for resecuritization exposures.
    (c) Mechanics of the SSFA. KG and W are used to 
calculate KA, the augmented value of KG, which 
reflects the observed credit quality of the underlying exposures. 
KA is defined in paragraph (d) of this section. The values 
of parameters A and D, relative to KA determine the risk 
weight assigned to a securitization exposure as described in paragraph 
(d) of this section. The risk weight assigned to a securitization 
exposure, or portion of a securitization exposure, as appropriate, is 
the larger of the risk weight determined in accordance with this 
paragraph, paragraph (d) of this section, and a risk weight of 20 
percent.
    (1) When the detachment point, parameter D, for a securitization 
exposure is less than or equal to KA, the exposure must be 
assigned a risk weight of 1,250 percent;
    (2) When the attachment point, parameter A, for a securitization 
exposure is greater than or equal to KA, the FDIC-supervised 
institution must calculate the risk weight in accordance with paragraph 
(d) of this section;
    (3) When A is less than KA and D is greater than 
KA, the risk weight is a weighted-average of 1,250 percent 
and 1,250 percent times KSSFA calculated in accordance with 
paragraph (d) of this section. For the purpose of this weighted-average 
calculation:

[[Page 55560]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.044

Sec.  324.145  Recognition of credit risk mitigants for securitization 
exposures.

    (a) General. An originating FDIC-supervised institution that has 
obtained a credit risk mitigant to hedge its securitization exposure to 
a synthetic or traditional securitization that satisfies the 
operational criteria in Sec.  324.141 may recognize the credit risk 
mitigant, but only as provided in this section. An investing FDIC-
supervised institution that has obtained a credit risk mitigant to 
hedge a securitization exposure may recognize the credit risk mitigant, 
but only as provided in this section.
    (b) Collateral--(1) Rules of recognition. An FDIC-supervised 
institution may recognize financial collateral in determining the FDIC-
supervised institution's risk-weighted asset amount for a 
securitization exposure (other than a repo-style transaction, an 
eligible margin loan, or an OTC derivative contract for which the FDIC-
supervised institution has reflected collateral in its determination of 
exposure amount under Sec.  324.132) as

[[Page 55561]]

follows. The FDIC-supervised institution's risk-weighted asset amount 
for the collateralized securitization exposure is equal to the risk-
weighted asset amount for the securitization exposure as calculated 
under the SSFA in Sec.  324.144 or under the SFA in Sec.  324.143 
multiplied by the ratio of adjusted exposure amount (SE*) to original 
exposure amount (SE), where:
    (i) SE* equals max {0, [SE - C x (1- Hs - 
Hfx)]{time} ;
    (ii) SE equals the amount of the securitization exposure calculated 
under Sec.  324.142(e);
    (iii) C equals the current fair value of the collateral;
    (iv) Hs equals the haircut appropriate to the collateral 
type; and
    (v) Hfx equals the haircut appropriate for any currency 
mismatch between the collateral and the exposure.
[GRAPHIC] [TIFF OMITTED] TR10SE13.048

    (3) Standard supervisory haircuts. Unless an FDIC-supervised 
institution qualifies for use of and uses own-estimates haircuts in 
paragraph (b)(4) of this section:
    (i) An FDIC-supervised institution must use the collateral type 
haircuts (Hs) in Table 1 to Sec.  324.132 of this subpart;
    (ii) An FDIC-supervised institution must use a currency mismatch 
haircut (Hfx) of 8 percent if the exposure and the 
collateral are denominated in different currencies;
    (iii) An FDIC-supervised institution must multiply the supervisory 
haircuts obtained in paragraphs (b)(3)(i) and (ii) of this section by 
the square root of 6.5 (which equals 2.549510); and
    (iv) An FDIC-supervised institution must adjust the supervisory 
haircuts upward on the basis of a holding period longer than 65 
business days where and as appropriate to take into account the 
illiquidity of the collateral.
    (4) Own estimates for haircuts. With the prior written approval of 
the FDIC, an FDIC-supervised institution may calculate haircuts using 
its own internal estimates of market price volatility and foreign 
exchange volatility, subject to Sec.  324.132(b)(2)(iii). The minimum 
holding period (TM) for securitization exposures is 65 
business days.
    (c) Guarantees and credit derivatives--(1) Limitations on 
recognition. An FDIC-supervised institution may only recognize an 
eligible guarantee or eligible credit derivative provided by an 
eligible guarantor in determining the FDIC-supervised institution's 
risk-weighted asset amount for a securitization exposure.
    (2) ECL for securitization exposures. When an FDIC-supervised 
institution recognizes an eligible guarantee or eligible credit 
derivative provided by an eligible guarantor in determining the FDIC-
supervised institution's risk-weighted asset amount for a 
securitization exposure, the FDIC-supervised institution must also:
    (i) Calculate ECL for the protected portion of the exposure using 
the same risk parameters that it uses for calculating the risk-weighted 
asset amount of the exposure as described in paragraph (c)(3) of this 
section; and
    (ii) Add the exposure's ECL to the FDIC-supervised institution's 
total ECL.
    (3) Rules of recognition. An FDIC-supervised institution may 
recognize an eligible guarantee or eligible credit derivative provided 
by an eligible guarantor in determining the FDIC-supervised 
institution's risk-weighted asset amount for the securitization 
exposure as follows:
    (i) Full coverage. If the protection amount of the eligible 
guarantee or eligible credit derivative equals or exceeds the amount of 
the securitization exposure, the FDIC-supervised institution may set 
the risk-weighted asset amount for the securitization exposure equal to 
the risk-weighted asset amount for a direct exposure to the eligible 
guarantor (as determined in the wholesale risk weight function 
described in Sec.  324.131), using the FDIC-supervised institution's PD 
for the guarantor, the FDIC-supervised institution's LGD for the 
guarantee or credit derivative, and an EAD equal to the amount of the 
securitization exposure (as determined in Sec.  324.142(e)).
    (ii) Partial coverage. If the protection amount of the eligible 
guarantee or eligible credit derivative is less than the amount of the 
securitization exposure, the FDIC-supervised institution may set the 
risk-weighted asset amount for the securitization exposure equal to the 
sum of:
    (A) Covered portion. The risk-weighted asset amount for a direct 
exposure to the eligible guarantor (as determined in the wholesale risk 
weight function described in Sec.  324.131), using the FDIC-supervised 
institution's PD for the guarantor, the FDIC-supervised institution's 
LGD for the guarantee or credit derivative, and an EAD equal to the 
protection amount of the credit risk mitigant; and
    (B) Uncovered portion. (1) 1.0 minus the ratio of the protection 
amount of the eligible guarantee or eligible credit derivative to the 
amount of the securitization exposure); multiplied by
    (2) The risk-weighted asset amount for the securitization exposure 
without the credit risk mitigant (as determined in Sec. Sec.  324.142 
through 324.146).
    (4) Mismatches. The FDIC-supervised institution must make 
applicable adjustments to the protection amount as required in Sec.  
324.134(d), (e), and (f) for any hedged securitization exposure and any 
more senior securitization exposure that benefits from the hedge. In 
the context of a synthetic securitization, when an eligible guarantee 
or eligible credit derivative covers multiple hedged exposures that 
have different residual maturities, the FDIC-supervised institution 
must use the longest residual maturity of any of the hedged exposures 
as the residual maturity of all the hedged exposures.


Sec. Sec.  324.146 through 324.150   [Reserved]

Risk-Weighted Assets for Equity Exposures


Sec.  324.151  Introduction and exposure measurement.

    (a) General. (1) To calculate its risk-weighted asset amounts for 
equity

[[Page 55562]]

exposures that are not equity exposures to investment funds, an FDIC-
supervised institution may apply either the Simple Risk Weight Approach 
(SRWA) in Sec.  324.152 or, if it qualifies to do so, the Internal 
Models Approach (IMA) in Sec.  324.153. An FDIC-supervised institution 
must use the look-through approaches provided in Sec.  324.154 to 
calculate its risk-weighted asset amounts for equity exposures to 
investment funds.
    (2) An FDIC-supervised institution must treat an investment in a 
separate account (as defined in Sec.  324.2), as if it were an equity 
exposure to an investment fund as provided in Sec.  324.154.
    (3) Stable value protection. (i) Stable value protection means a 
contract where the provider of the contract is obligated to pay:
    (A) The policy owner of a separate account an amount equal to the 
shortfall between the fair value and cost basis of the separate account 
when the policy owner of the separate account surrenders the policy, or
    (B) The beneficiary of the contract an amount equal to the 
shortfall between the fair value and book value of a specified 
portfolio of assets.
    (ii) An FDIC-supervised institution that purchases stable value 
protection on its investment in a separate account must treat the 
portion of the carrying value of its investment in the separate account 
attributable to the stable value protection as an exposure to the 
provider of the protection and the remaining portion of the carrying 
value of its separate account as an equity exposure to an investment 
fund.
    (iii) An FDIC-supervised institution that provides stable value 
protection must treat the exposure as an equity derivative with an 
adjusted carrying value determined as the sum of Sec.  324.151(b)(1) 
and (2).
    (b) Adjusted carrying value. For purposes of this subpart, the 
adjusted carrying value of an equity exposure is:
    (1) For the on-balance sheet component of an equity exposure, the 
FDIC-supervised institution's carrying value of the exposure;
    (2) For the off-balance sheet component of an equity exposure, the 
effective notional principal amount of the exposure, the size of which 
is equivalent to a hypothetical on-balance sheet position in the 
underlying equity instrument that would evidence the same change in 
fair value (measured in dollars) for a given small change in the price 
of the underlying equity instrument, minus the adjusted carrying value 
of the on-balance sheet component of the exposure as calculated in 
paragraph (b)(1) of this section.
    (3) For unfunded equity commitments that are unconditional, the 
effective notional principal amount is the notional amount of the 
commitment. For unfunded equity commitments that are conditional, the 
effective notional principal amount is the FDIC-supervised 
institution's best estimate of the amount that would be funded under 
economic downturn conditions.


Sec.  324.152  Simple risk weight approach (SRWA).

    (a) General. Under the SRWA, an FDIC-supervised institution's 
aggregate risk-weighted asset amount for its equity exposures is equal 
to the sum of the risk-weighted asset amounts for each of the FDIC-
supervised institution's individual equity exposures (other than equity 
exposures to an investment fund) as determined in this section and the 
risk-weighted asset amounts for each of the FDIC-supervised 
institution's individual equity exposures to an investment fund as 
determined in Sec.  324.154.
    (b) SRWA computation for individual equity exposures. An FDIC-
supervised institution must determine the risk-weighted asset amount 
for an individual equity exposure (other than an equity exposure to an 
investment fund) by multiplying the adjusted carrying value of the 
equity exposure or the effective portion and ineffective portion of a 
hedge pair (as defined in paragraph (c) of this section) by the lowest 
applicable risk weight in this section.
    (1) Zero percent risk weight equity exposures. An equity exposure 
to an entity whose credit exposures are exempt from the 0.03 percent PD 
floor in Sec.  324.131(d)(2) is assigned a zero percent risk weight.
    (2) 20 percent risk weight equity exposures. An equity exposure to 
a Federal Home Loan Bank or the Federal Agricultural Mortgage 
Corporation (Farmer Mac) is assigned a 20 percent risk weight.
    (3) 100 percent risk weight equity exposures. The following equity 
exposures are assigned a 100 percent risk weight:
    (i) Community development equity exposures. An equity exposure that 
qualifies as a community development investment under section 24 
(Eleventh) of the National Bank Act, excluding equity exposures to an 
unconsolidated small business investment company and equity exposures 
held through a consolidated small business investment company described 
in section 302 of the Small Business Investment Act.
    (ii) Effective portion of hedge pairs. The effective portion of a 
hedge pair.
    (iii) Non-significant equity exposures. Equity exposures, excluding 
significant investments in the capital of an unconsolidated institution 
in the form of common stock and exposures to an investment firm that 
would meet the definition of a traditional securitization were it not 
for the FDIC's application of paragraph (8) of that definition in Sec.  
324.2 and has greater than immaterial leverage, to the extent that the 
aggregate adjusted carrying value of the exposures does not exceed 10 
percent of the FDIC-supervised institution's total capital.
    (A) To compute the aggregate adjusted carrying value of an FDIC-
supervised institution's equity exposures for purposes of this section, 
the FDIC-supervised institution may exclude equity exposures described 
in paragraphs (b)(1), (b)(2), (b)(3)(i), and (b)(3)(ii) of this 
section, the equity exposure in a hedge pair with the smaller adjusted 
carrying value, and a proportion of each equity exposure to an 
investment fund equal to the proportion of the assets of the investment 
fund that are not equity exposures or that meet the criterion of 
paragraph (b)(3)(i) of this section. If an FDIC-supervised institution 
does not know the actual holdings of the investment fund, the FDIC-
supervised institution may calculate the proportion of the assets of 
the fund that are not equity exposures based on the terms of the 
prospectus, partnership agreement, or similar contract that defines the 
fund's permissible investments. If the sum of the investment limits for 
all exposure classes within the fund exceeds 100 percent, the FDIC-
supervised institution must assume for purposes of this section that 
the investment fund invests to the maximum extent possible in equity 
exposures.
    (B) When determining which of an FDIC-supervised institution's 
equity exposures qualifies for a 100 percent risk weight under this 
section, an FDIC-supervised institution first must include equity 
exposures to unconsolidated small business investment companies or held 
through consolidated small business investment companies described in 
section 302 of the Small Business Investment Act, then must include 
publicly traded equity exposures (including those held indirectly 
through investment funds), and then must include non-publicly traded 
equity exposures (including those held indirectly through investment 
funds).
    (4) 250 percent risk weight equity exposures. Significant 
investments in the capital of unconsolidated financial

[[Page 55563]]

institutions in the form of common stock that are not deducted from 
capital pursuant to Sec.  324.22(b)(4) are assigned a 250 percent risk 
weight.
    (5) 300 percent risk weight equity exposures. A publicly traded 
equity exposure (other than an equity exposure described in paragraph 
(b)(6) of this section and including the ineffective portion of a hedge 
pair) is assigned a 300 percent risk weight.
    (6) 400 percent risk weight equity exposures. An equity exposure 
(other than an equity exposure described in paragraph (b)(6) of this 
section) that is not publicly traded is assigned a 400 percent risk 
weight.
    (7) 600 percent risk weight equity exposures. An equity exposure to 
an investment firm that:
    (i) Would meet the definition of a traditional securitization were 
it not for the FDIC's application of paragraph (8) of that definition 
in Sec.  324.2; and
    (ii) Has greater than immaterial leverage is assigned a 600 percent 
risk weight.
    (c) Hedge transactions--(1) Hedge pair. A hedge pair is two equity 
exposures that form an effective hedge so long as each equity exposure 
is publicly traded or has a return that is primarily based on a 
publicly traded equity exposure.
    (2) Effective hedge. Two equity exposures form an effective hedge 
if the exposures either have the same remaining maturity or each has a 
remaining maturity of at least three months; the hedge relationship is 
formally documented in a prospective manner (that is, before the FDIC-
supervised institution acquires at least one of the equity exposures); 
the documentation specifies the measure of effectiveness (E) the FDIC-
supervised institution will use for the hedge relationship throughout 
the life of the transaction; and the hedge relationship has an E 
greater than or equal to 0.8. An FDIC-supervised institution must 
measure E at least quarterly and must use one of three alternative 
measures of E:
    (i) Under the dollar-offset method of measuring effectiveness, the 
FDIC-supervised institution must determine the ratio of value change 
(RVC). The RVC is the ratio of the cumulative sum of the periodic 
changes in value of one equity exposure to the cumulative sum of the 
periodic changes in the value of the other equity exposure. If RVC is 
positive, the hedge is not effective and E equals zero. If RVC is 
negative and greater than or equal to -1 (that is, between zero and -
1), then E equals the absolute value of RVC. If RVC is negative and 
less than -1, then E equals 2 plus RVC.
    (ii) Under the variability-reduction method of measuring 
effectiveness:
[GRAPHIC] [TIFF OMITTED] TR10SE13.045

    (iii) Under the regression method of measuring effectiveness, E 
equals the coefficient of determination of a regression in which the 
change in value of one exposure in a hedge pair is the dependent 
variable and the change in value of the other exposure in a hedge pair 
is the independent variable. However, if the estimated regression 
coefficient is positive, then the value of E is zero.
    (3) The effective portion of a hedge pair is E multiplied by the 
greater of the adjusted carrying values of the equity exposures forming 
a hedge pair.
    (4) The ineffective portion of a hedge pair is (1-E) multiplied by 
the greater of the adjusted carrying values of the equity exposures 
forming a hedge pair.


Sec.  324.153  Internal models approach (IMA).

    (a) General. An FDIC-supervised institution may calculate its risk-
weighted asset amount for equity exposures using the IMA by modeling 
publicly traded and non-publicly traded equity exposures (in accordance 
with paragraph (c) of this section) or by modeling only publicly traded 
equity exposures (in accordance with paragraphs (c) and (d) of this 
section).
    (b) Qualifying criteria. To qualify to use the IMA to calculate 
risk-weighted assets for equity exposures, an FDIC-supervised 
institution must receive prior written approval from the FDIC. To 
receive such approval, the FDIC-supervised institution must demonstrate 
to the FDIC's satisfaction that the FDIC-supervised institution meets 
the following criteria:
    (1) The FDIC-supervised institution must have one or more models 
that:
    (i) Assess the potential decline in value of its modeled equity 
exposures;
    (ii) Are commensurate with the size, complexity, and composition of 
the FDIC-supervised institution's modeled equity exposures; and
    (iii) Adequately capture both general market risk and idiosyncratic 
risk.
    (2) The FDIC-supervised institution's model must produce an 
estimate of potential losses for its modeled equity exposures that is 
no less than the estimate of potential losses produced by a VaR 
methodology employing a 99th percentile one-tailed confidence interval 
of the distribution of quarterly returns for a benchmark portfolio of 
equity exposures comparable to the FDIC-supervised institution's 
modeled equity exposures using a long-term sample period.
    (3) The number of risk factors and exposures in the sample and the 
data period used for quantification in the FDIC-supervised 
institution's model and benchmarking exercise must be sufficient to 
provide confidence in the accuracy and robustness of the FDIC-
supervised institution's estimates.
    (4) The FDIC-supervised institution's model and benchmarking 
process must

[[Page 55564]]

incorporate data that are relevant in representing the risk profile of 
the FDIC-supervised institution's modeled equity exposures, and must 
include data from at least one equity market cycle containing adverse 
market movements relevant to the risk profile of the FDIC-supervised 
institution's modeled equity exposures. In addition, the FDIC-
supervised institution's benchmarking exercise must be based on daily 
market prices for the benchmark portfolio. If the FDIC-supervised 
institution's model uses a scenario methodology, the FDIC-supervised 
institution must demonstrate that the model produces a conservative 
estimate of potential losses on the FDIC-supervised institution's 
modeled equity exposures over a relevant long-term market cycle. If the 
FDIC-supervised institution employs risk factor models, the FDIC-
supervised institution must demonstrate through empirical analysis the 
appropriateness of the risk factors used.
    (5) The FDIC-supervised institution must be able to demonstrate, 
using theoretical arguments and empirical evidence, that any proxies 
used in the modeling process are comparable to the FDIC-supervised 
institution's modeled equity exposures and that the FDIC-supervised 
institution has made appropriate adjustments for differences. The FDIC-
supervised institution must derive any proxies for its modeled equity 
exposures and benchmark portfolio using historical market data that are 
relevant to the FDIC-supervised institution's modeled equity exposures 
and benchmark portfolio (or, where not, must use appropriately adjusted 
data), and such proxies must be robust estimates of the risk of the 
FDIC-supervised institution's modeled equity exposures.
    (c) Risk-weighted assets calculation for an FDIC-supervised 
institution using the IMA for publicly traded and non-publicly traded 
equity exposures. If an FDIC-supervised institution models publicly 
traded and non-publicly traded equity exposures, the FDIC-supervised 
institution's aggregate risk-weighted asset amount for its equity 
exposures is equal to the sum of:
    (1) The risk-weighted asset amount of each equity exposure that 
qualifies for a 0 percent, 20 percent, or 100 percent risk weight under 
Sec.  324.152(b)(1) through (b)(3)(i) (as determined under Sec.  
324.152) and each equity exposure to an investment fund (as determined 
under Sec.  324.154); and
    (2) The greater of:
    (i) The estimate of potential losses on the FDIC-supervised 
institution's equity exposures (other than equity exposures referenced 
in paragraph (c)(1) of this section) generated by the FDIC-supervised 
institution's internal equity exposure model multiplied by 12.5; or
    (ii) The sum of:
    (A) 200 percent multiplied by the aggregate adjusted carrying value 
of the FDIC-supervised institution's publicly traded equity exposures 
that do not belong to a hedge pair, do not qualify for a 0 percent, 20 
percent, or 100 percent risk weight under Sec.  324.152(b)(1) through 
(b)(3)(i), and are not equity exposures to an investment fund;
    (B) 200 percent multiplied by the aggregate ineffective portion of 
all hedge pairs; and
    (C) 300 percent multiplied by the aggregate adjusted carrying value 
of the FDIC-supervised institution's equity exposures that are not 
publicly traded, do not qualify for a 0 percent, 20 percent, or 100 
percent risk weight under Sec.  324.152(b)(1) through (b)(3)(i), and 
are not equity exposures to an investment fund.
    (d) Risk-weighted assets calculation for an FDIC-supervised 
institution using the IMA only for publicly traded equity exposures. If 
an FDIC-supervised institution models only publicly traded equity 
exposures, the FDIC-supervised institution's aggregate risk-weighted 
asset amount for its equity exposures is equal to the sum of:
    (1) The risk-weighted asset amount of each equity exposure that 
qualifies for a 0 percent, 20 percent, or 100 percent risk weight under 
Sec. Sec.  324.152(b)(1) through (b)(3)(i) (as determined under Sec.  
324.152), each equity exposure that qualifies for a 400 percent risk 
weight under Sec.  324.152(b)(5) or a 600 percent risk weight under 
Sec.  324.152(b)(6) (as determined under Sec.  324.152), and each 
equity exposure to an investment fund (as determined under Sec.  
324.154); and
    (2) The greater of:
    (i) The estimate of potential losses on the FDIC-supervised 
institution's equity exposures (other than equity exposures referenced 
in paragraph (d)(1) of this section) generated by the FDIC-supervised 
institution's internal equity exposure model multiplied by 12.5; or
    (ii) The sum of:
    (A) 200 percent multiplied by the aggregate adjusted carrying value 
of the FDIC-supervised institution's publicly traded equity exposures 
that do not belong to a hedge pair, do not qualify for a 0 percent, 20 
percent, or 100 percent risk weight under Sec.  324.152(b)(1) through 
(b)(3)(i), and are not equity exposures to an investment fund; and
    (B) 200 percent multiplied by the aggregate ineffective portion of 
all hedge pairs.


Sec.  324.154  Equity exposures to investment funds.

    (a) Available approaches. (1) Unless the exposure meets the 
requirements for a community development equity exposure in Sec.  
324.152(b)(3)(i), an FDIC-supervised institution must determine the 
risk-weighted asset amount of an equity exposure to an investment fund 
under the full look-through approach in paragraph (b) of this section, 
the simple modified look-through approach in paragraph (c) of this 
section, or the alternative modified look-through approach in paragraph 
(d) of this section.
    (2) The risk-weighted asset amount of an equity exposure to an 
investment fund that meets the requirements for a community development 
equity exposure in Sec.  324.152(b)(3)(i) is its adjusted carrying 
value.
    (3) If an equity exposure to an investment fund is part of a hedge 
pair and the FDIC-supervised institution does not use the full look-
through approach, the FDIC-supervised institution may use the 
ineffective portion of the hedge pair as determined under Sec.  
324.152(c) as the adjusted carrying value for the equity exposure to 
the investment fund. The risk-weighted asset amount of the effective 
portion of the hedge pair is equal to its adjusted carrying value.
    (b) Full look-through approach. An FDIC-supervised institution that 
is able to calculate a risk-weighted asset amount for its proportional 
ownership share of each exposure held by the investment fund (as 
calculated under this subpart E of this part as if the proportional 
ownership share of each exposure were held directly by the FDIC-
supervised institution) may either:
    (1) Set the risk-weighted asset amount of the FDIC-supervised 
institution's exposure to the fund equal to the product of:
    (i) The aggregate risk-weighted asset amounts of the exposures held 
by the fund as if they were held directly by the FDIC-supervised 
institution; and
    (ii) The FDIC-supervised institution's proportional ownership share 
of the fund; or
    (2) Include the FDIC-supervised institution's proportional 
ownership share of each exposure held by the fund in the FDIC-
supervised institution's IMA.
    (c) Simple modified look-through approach. Under this approach, the 
risk-weighted asset amount for an FDIC-supervised institution's equity 
exposure to an investment fund equals the adjusted carrying value of 
the equity exposure multiplied by the highest risk weight assigned 
according to subpart D

[[Page 55565]]

of this part that applies to any exposure the fund is permitted to hold 
under its prospectus, partnership agreement, or similar contract that 
defines the fund's permissible investments (excluding derivative 
contracts that are used for hedging rather than speculative purposes 
and that do not constitute a material portion of the fund's exposures).
    (d) Alternative modified look-through approach. Under this 
approach, an FDIC-supervised institution may assign the adjusted 
carrying value of an equity exposure to an investment fund on a pro 
rata basis to different risk weight categories assigned according to 
subpart D of this part based on the investment limits in the fund's 
prospectus, partnership agreement, or similar contract that defines the 
fund's permissible investments. The risk-weighted asset amount for the 
FDIC-supervised institution's equity exposure to the investment fund 
equals the sum of each portion of the adjusted carrying value assigned 
to an exposure class multiplied by the applicable risk weight. If the 
sum of the investment limits for all exposure types within the fund 
exceeds 100 percent, the FDIC-supervised institution must assume that 
the fund invests to the maximum extent permitted under its investment 
limits in the exposure type with the highest risk weight under subpart 
D of this part, and continues to make investments in order of the 
exposure type with the next highest risk weight under subpart D of this 
part until the maximum total investment level is reached. If more than 
one exposure type applies to an exposure, the FDIC-supervised 
institution must use the highest applicable risk weight. An FDIC-
supervised institution may exclude derivative contracts held by the 
fund that are used for hedging rather than for speculative purposes and 
do not constitute a material portion of the fund's exposures.


Sec.  324.155  Equity derivative contracts.

    (a) Under the IMA, in addition to holding risk-based capital 
against an equity derivative contract under this part, an FDIC-
supervised institution must hold risk-based capital against the 
counterparty credit risk in the equity derivative contract by also 
treating the equity derivative contract as a wholesale exposure and 
computing a supplemental risk-weighted asset amount for the contract 
under Sec.  324.132.
    (b) Under the SRWA, an FDIC-supervised institution may choose not 
to hold risk-based capital against the counterparty credit risk of 
equity derivative contracts, as long as it does so for all such 
contracts. Where the equity derivative contracts are subject to a 
qualified master netting agreement, an FDIC-supervised institution 
using the SRWA must either include all or exclude all of the contracts 
from any measure used to determine counterparty credit risk exposure.


Sec. Sec.  324.161 through 324.160   [Reserved]

Risk-Weighted Assets for Operational Risk


Sec.  324.161  Qualification requirements for incorporation of 
operational risk mitigants.

    (a) Qualification to use operational risk mitigants. An FDIC-
supervised institution may adjust its estimate of operational risk 
exposure to reflect qualifying operational risk mitigants if:
    (1) The FDIC-supervised institution's operational risk 
quantification system is able to generate an estimate of the FDIC-
supervised institution's operational risk exposure (which does not 
incorporate qualifying operational risk mitigants) and an estimate of 
the FDIC-supervised institution's operational risk exposure adjusted to 
incorporate qualifying operational risk mitigants; and
    (2) The FDIC-supervised institution's methodology for incorporating 
the effects of insurance, if the FDIC-supervised institution uses 
insurance as an operational risk mitigant, captures through appropriate 
discounts to the amount of risk mitigation:
    (i) The residual term of the policy, where less than one year;
    (ii) The cancellation terms of the policy, where less than one 
year;
    (iii) The policy's timeliness of payment;
    (iv) The uncertainty of payment by the provider of the policy; and
    (v) Mismatches in coverage between the policy and the hedged 
operational loss event.
    (b) Qualifying operational risk mitigants. Qualifying operational 
risk mitigants are:
    (1) Insurance that:
    (i) Is provided by an unaffiliated company that the FDIC-supervised 
institution deems to have strong capacity to meet its claims payment 
obligations and the obligor rating category to which the FDIC-
supervised institution assigns the company is assigned a PD equal to or 
less than 10 basis points;
    (ii) Has an initial term of at least one year and a residual term 
of more than 90 days;
    (iii) Has a minimum notice period for cancellation by the provider 
of 90 days;
    (iv) Has no exclusions or limitations based upon regulatory action 
or for the receiver or liquidator of a failed depository institution; 
and
    (v) Is explicitly mapped to a potential operational loss event;
    (2) Operational risk mitigants other than insurance for which the 
FDIC has given prior written approval. In evaluating an operational 
risk mitigant other than insurance, the FDIC will consider whether the 
operational risk mitigant covers potential operational losses in a 
manner equivalent to holding total capital.


Sec.  324.162  Mechanics of risk-weighted asset calculation.

    (a) If an FDIC-supervised institution does not qualify to use or 
does not have qualifying operational risk mitigants, the FDIC-
supervised institution's dollar risk-based capital requirement for 
operational risk is its operational risk exposure minus eligible 
operational risk offsets (if any).
    (b) If an FDIC-supervised institution qualifies to use operational 
risk mitigants and has qualifying operational risk mitigants, the FDIC-
supervised institution's dollar risk-based capital requirement for 
operational risk is the greater of:
    (1) The FDIC-supervised institution's operational risk exposure 
adjusted for qualifying operational risk mitigants minus eligible 
operational risk offsets (if any); or
    (2) 0.8 multiplied by the difference between:
    (i) The FDIC-supervised institution's operational risk exposure; 
and
    (ii) Eligible operational risk offsets (if any).
    (c) The FDIC-supervised institution's risk-weighted asset amount 
for operational risk equals the FDIC-supervised institution's dollar 
risk-based capital requirement for operational risk determined under 
sections 162(a) or (b) multiplied by 12.5.


Sec. Sec.  324.163 through 324.170   [ Reserved]

Disclosures


Sec.  324.171  Purpose and scope.

    Sec. Sec.  324.171 through 324.173 establish public disclosure 
requirements related to the capital requirements of an FDIC-supervised 
institution that is an advanced approaches FDIC-supervised institution.


Sec.  324.172  Disclosure requirements.

    (a) An FDIC-supervised institution that is an advanced approaches 
FDIC-supervised institution that has completed the parallel run process 
and that has received notification from the FDIC pursuant to Sec.  
324.121(d) must publicly disclose each quarter its total and tier 1 
risk-based capital ratios and their components as calculated under

[[Page 55566]]

this subpart (that is, common equity tier 1 capital, additional tier 1 
capital, tier 2 capital, total qualifying capital, and total risk-
weighted assets).
    (b) An FDIC-supervised institution that is an advanced approaches 
FDIC-supervised institution that has completed the parallel run process 
and that has received notification from the FDIC pursuant to section 
Sec.  324.121(d) must comply with paragraph (c) of this section unless 
it is a consolidated subsidiary of a bank holding company, savings and 
loan holding company, or depository institution that is subject to 
these disclosure requirements or a subsidiary of a non-U.S. banking 
organization that is subject to comparable public disclosure 
requirements in its home jurisdiction.
    (c)(1) An FDIC-supervised institution described in paragraph (b) of 
this section must provide timely public disclosures each calendar 
quarter of the information in the applicable tables in Sec.  324.173. 
If a significant change occurs, such that the most recent reported 
amounts are no longer reflective of the FDIC-supervised institution's 
capital adequacy and risk profile, then a brief discussion of this 
change and its likely impact must be disclosed as soon as practicable 
thereafter. Qualitative disclosures that typically do not change each 
quarter (for example, a general summary of the FDIC-supervised 
institution's risk management objectives and policies, reporting 
system, and definitions) may be disclosed annually after the end of the 
fourth calendar quarter, provided that any significant changes to these 
are disclosed in the interim. Management may provide all of the 
disclosures required by this subpart in one place on the FDIC-
supervised institution's public Web site or may provide the disclosures 
in more than one public financial report or other regulatory reports, 
provided that the FDIC-supervised institution publicly provides a 
summary table specifically indicating the location(s) of all such 
disclosures.
    (2) An FDIC-supervised institution described in paragraph (b) of 
this section must have a formal disclosure policy approved by the board 
of directors that addresses its approach for determining the 
disclosures it makes. The policy must address the associated internal 
controls and disclosure controls and procedures. The board of directors 
and senior management are responsible for establishing and maintaining 
an effective internal control structure over financial reporting, 
including the disclosures required by this subpart, and must ensure 
that appropriate review of the disclosures takes place. One or more 
senior officers of the FDIC-supervised institution must attest that the 
disclosures meet the requirements of this subpart.
    (3) If an FDIC-supervised institution described in paragraph (b) of 
this section believes that disclosure of specific commercial or 
financial information would prejudice seriously its position by making 
public information that is either proprietary or confidential in 
nature, the FDIC-supervised institution is not required to disclose 
those specific items, but must disclose more general information about 
the subject matter of the requirement, together with the fact that, and 
the reason why, the specific items of information have not been 
disclosed.


Sec.  324.173  Disclosures by certain advanced approaches FDIC-
supervised institutions.

    (a) Except as provided in Sec.  324.172(b), an FDIC-supervised 
institution described in Sec.  324.172(b) must make the disclosures 
described in Tables 1 through 12 to Sec.  324.173. The FDIC-supervised 
institution must make these disclosures publicly available for each of 
the last three years (that is, twelve quarters) or such shorter period 
beginning on January 1, 2014.

             Table 1 to Sec.   324.173--Scope of Application
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The name of the top
                                                    corporate entity in
                                                    the group to which
                                                    subpart E of this
                                                    part applies.
                                (b)..............  A brief description
                                                    of the differences
                                                    in the basis for
                                                    consolidating
                                                    entities \1\ for
                                                    accounting and
                                                    regulatory purposes,
                                                    with a description
                                                    of those entities:
                                                   (1) That are fully
                                                    consolidated;
                                                   (2) That are
                                                    deconsolidated and
                                                    deducted from total
                                                    capital;
                                                   (3) For which the
                                                    total capital
                                                    requirement is
                                                    deducted; and
                                                   (4) That are neither
                                                    consolidated nor
                                                    deducted (for
                                                    example, where the
                                                    investment in the
                                                    entity is assigned a
                                                    risk weight in
                                                    accordance with this
                                                    subpart E).
                                (c)..............  Any restrictions, or
                                                    other major
                                                    impediments, on
                                                    transfer of funds or
                                                    total capital within
                                                    the group.
Quantitative disclosures......  (d)..............  The aggregate amount
                                                    of surplus capital
                                                    of insurance
                                                    subsidiaries
                                                    included in the
                                                    total capital of the
                                                    consolidated group.
                                ((e).............  The aggregate amount
                                                    by which actual
                                                    total capital is
                                                    less than the
                                                    minimum total
                                                    capital requirement
                                                    in all subsidiaries,
                                                    with total capital
                                                    requirements and the
                                                    name(s) of the
                                                    subsidiaries with
                                                    such deficiencies.
------------------------------------------------------------------------
\1\ Such entities include securities, insurance and other financial
  subsidiaries, commercial subsidiaries (where permitted), and
  significant minority equity investments in insurance, financial and
  commercial entities.


              Table 2 to Sec.   324.173--Capital Structure
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  Summary information
                                                    on the terms and
                                                    conditions of the
                                                    main features of all
                                                    regulatory capital
                                                    instruments.
Quantitative disclosures......  (b)..............  The amount of common
                                                    equity tier 1
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Common stock and
                                                    related surplus;
                                                   (2) Retained
                                                    earnings;
                                                   (3) Common equity
                                                    minority interest;
                                                   (4) AOCI (net of tax)
                                                    and other reserves;
                                                    and
                                                   (5) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    common equity tier 1
                                                    capital.

[[Page 55567]]

 
                                (c)..............  The amount of tier 1
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Additional tier 1
                                                    capital elements,
                                                    including additional
                                                    tier 1 capital
                                                    instruments and tier
                                                    1 minority interest
                                                    not included in
                                                    common equity tier 1
                                                    capital; and
                                                   (2) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    tier 1 capital.
                                (d)..............  The amount of total
                                                    capital, with
                                                    separate disclosure
                                                    of:
                                                   (1) Tier 2 capital
                                                    elements, including
                                                    tier 2 capital
                                                    instruments and
                                                    total capital
                                                    minority interest
                                                    not included in tier
                                                    1 capital; and
                                                   (2) Regulatory
                                                    adjustments and
                                                    deductions made to
                                                    total capital.
------------------------------------------------------------------------


               Table 3 to Sec.   324.173--Capital Adequacy
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  A summary discussion
                                                    of the FDIC-
                                                    supervised
                                                    institution's
                                                    approach to
                                                    assessing the
                                                    adequacy of its
                                                    capital to support
                                                    current and future
                                                    activities.
Quantitative disclosures......  (b)..............  Risk-weighted assets
                                                    for credit risk
                                                    from:
                                                   (1) Wholesale
                                                    exposures;
                                                   (2) Residential
                                                    mortgage exposures;
                                                   (3) Qualifying
                                                    revolving exposures;
                                                   (4) Other retail
                                                    exposures;
                                                   (5) Securitization
                                                    exposures;
                                                   (6) Equity exposures:
                                                   (7) Equity exposures
                                                    subject to the
                                                    simple risk weight
                                                    approach; and
                                                   (8) Equity exposures
                                                    subject to the
                                                    internal models
                                                    approach.
                                (c)..............  Standardized market
                                                    risk-weighted assets
                                                    and advanced market
                                                    risk-weighted assets
                                                    as calculated under
                                                    subpart F of this
                                                    part:
                                                   (1) Standardized
                                                    approach for
                                                    specific risk; and
                                                   (2) Internal models
                                                    approach for
                                                    specific risk.
                                (d)..............  Risk-weighted assets
                                                    for operational
                                                    risk.
                                (e)..............  Common equity tier 1,
                                                    tier 1 and total
                                                    risk-based capital
                                                    ratios:
                                                   (1) For the top
                                                    consolidated group;
                                                    and
                                                   (2) For each
                                                    depository
                                                    institution
                                                    subsidiary.
                                (f)..............  Total risk-weighted
                                                    assets.
------------------------------------------------------------------------


   Table 4 to Sec.   324.173--Capital Conservation and Countercyclical
                             Capital Buffers
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The FDIC-supervised
                                                    institution must
                                                    publicly disclose
                                                    the geographic
                                                    breakdown of its
                                                    private sector
                                                    credit exposures
                                                    used in the
                                                    calculation of the
                                                    countercyclical
                                                    capital buffer.
Quantitative disclosures......  (b)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    the capital
                                                    conservation buffer
                                                    and the
                                                    countercyclical
                                                    capital buffer as
                                                    described under Sec.
                                                      324.11 of subpart
                                                    B.
                                (c)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    the buffer retained
                                                    income of the FDIC-
                                                    supervised
                                                    institution, as
                                                    described under Sec.
                                                      324.11 of subpart
                                                    B.
                                (d)..............  At least quarterly,
                                                    the FDIC-supervised
                                                    institution must
                                                    calculate and
                                                    publicly disclose
                                                    any limitations it
                                                    has on distributions
                                                    and discretionary
                                                    bonus payments
                                                    resulting from the
                                                    capital conservation
                                                    buffer and the
                                                    countercyclical
                                                    capital buffer
                                                    framework described
                                                    under Sec.   324.11
                                                    of subpart B,
                                                    including the
                                                    maximum payout
                                                    amount for the
                                                    quarter.
------------------------------------------------------------------------

    (b) General qualitative disclosure requirement. For each separate 
risk area described in Tables 5 through 12 to Sec.  324.173, the FDIC-
supervised institution must describe its risk management objectives and 
policies, including:
    (1) Strategies and processes;
    (2) The structure and organization of the relevant risk management 
function;
    (3) The scope and nature of risk reporting and/or measurement 
systems; and
    (4) Policies for hedging and/or mitigating risk and strategies and 
processes for monitoring the continuing effectiveness of hedges/
mitigants.

[[Page 55568]]



     Table 5\1\ to Sec.   324.173--Credit Risk: General Disclosures
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to credit
                                                    risk (excluding
                                                    counterparty credit
                                                    risk disclosed in
                                                    accordance with
                                                    Table 7 to Sec.
                                                    324.173), including:
                                                   (1) Policy for
                                                    determining past due
                                                    or delinquency
                                                    status;
                                                   (2) Policy for
                                                    placing loans on
                                                    nonaccrual;
                                                   (3) Policy for
                                                    returning loans to
                                                    accrual status;
                                                   (4) Definition of and
                                                    policy for
                                                    identifying impaired
                                                    loans (for financial
                                                    accounting
                                                    purposes).
                                                   (5) Description of
                                                    the methodology that
                                                    the entity uses to
                                                    estimate its
                                                    allowance for loan
                                                    and lease losses,
                                                    including
                                                    statistical methods
                                                    used where
                                                    applicable;
                                                   (6) Policy for
                                                    charging-off
                                                    uncollectible
                                                    amounts; and
                                                   (7) Discussion of the
                                                    FDIC-supervised
                                                    institution's credit
                                                    risk management
                                                    policy
Quantitative disclosures......  (b)..............  Total credit risk
                                                    exposures and
                                                    average credit risk
                                                    exposures, after
                                                    accounting offsets
                                                    in accordance with
                                                    GAAP,\2\ without
                                                    taking into account
                                                    the effects of
                                                    credit risk
                                                    mitigation
                                                    techniques (for
                                                    example, collateral
                                                    and netting not
                                                    permitted under
                                                    GAAP), over the
                                                    period categorized
                                                    by major types of
                                                    credit exposure. For
                                                    example, FDIC-
                                                    supervised
                                                    institutions could
                                                    use categories
                                                    similar to that used
                                                    for financial
                                                    statement purposes.
                                                    Such categories
                                                    might include, for
                                                    instance:
                                                   (1) Loans, off-
                                                    balance sheet
                                                    commitments, and
                                                    other non-derivative
                                                    off-balance sheet
                                                    exposures;
                                                   (2) Debt securities;
                                                    and
                                                   (3) OTC derivatives.
                                (c)..............  Geographic \3\
                                                    distribution of
                                                    exposures,
                                                    categorized in
                                                    significant areas by
                                                    major types of
                                                    credit exposure.
                                (d)..............  Industry or
                                                    counterparty type
                                                    distribution of
                                                    exposures,
                                                    categorized by major
                                                    types of credit
                                                    exposure.
                                (e)..............  By major industry or
                                                    counterparty type:
                                                   (1) Amount of
                                                    impaired loans for
                                                    which there was a
                                                    related allowance
                                                    under GAAP;
                                                   (2) Amount of
                                                    impaired loans for
                                                    which there was no
                                                    related allowance
                                                    under GAAP;
                                                   (3) Amount of loans
                                                    past due 90 days and
                                                    on nonaccrual;
                                                   (4) Amount of loans
                                                    past due 90 days and
                                                    still accruing; \4\
                                                   (5) The balance in
                                                    the allowance for
                                                    loan and lease
                                                    losses at the end of
                                                    each period,
                                                    disaggregated on the
                                                    basis of the
                                                    entity's impairment
                                                    method. To
                                                    disaggregate the
                                                    information required
                                                    on the basis of
                                                    impairment
                                                    methodology, an
                                                    entity shall
                                                    separately disclose
                                                    the amounts based on
                                                    the requirements in
                                                    GAAP; and
                                                   (6) Charge-offs
                                                    during the period.
                                (f)..............  Amount of impaired
                                                    loans and, if
                                                    available, the
                                                    amount of past due
                                                    loans categorized by
                                                    significant
                                                    geographic areas
                                                    including, if
                                                    practical, the
                                                    amounts of
                                                    allowances related
                                                    to each geographical
                                                    area,\5\ further
                                                    categorized as
                                                    required by GAAP.
                                (g)..............  Reconciliation of
                                                    changes in ALLL.\6\
                                (h)..............  Remaining contractual
                                                    maturity breakdown
                                                    (for example, one
                                                    year or less) of the
                                                    whole portfolio,
                                                    categorized by
                                                    credit exposure.
------------------------------------------------------------------------
\1\ Table 5 to Sec.   324.173 does not cover equity exposures, which
  should be reported in Table 9 to Sec.   324.173.
\2\ See, for example, ASC Topic 815-10 and 210-20, as they may be
  amended from time to time.
\3\ Geographical areas may comprise individual countries, groups of
  countries, or regions within countries. An FDIC-supervised institution
  might choose to define the geographical areas based on the way the
  company's portfolio is geographically managed. The criteria used to
  allocate the loans to geographical areas must be specified.
\4\ An FDIC-supervised institution is encouraged also to provide an
  analysis of the aging of past-due loans.
\5\ The portion of the general allowance that is not allocated to a
  geographical area should be disclosed separately.
\6\ The reconciliation should include the following: a description of
  the allowance; the opening balance of the allowance; charge-offs taken
  against the allowance during the period; amounts provided (or
  reversed) for estimated probable loan losses during the period; any
  other adjustments (for example, exchange rate differences, business
  combinations, acquisitions and disposals of subsidiaries), including
  transfers between allowances; and the closing balance of the
  allowance. Charge-offs and recoveries that have been recorded directly
  to the income statement should be disclosed separately.


   Table 6 to Sec.   324.173--Credit Risk: Disclosures for Portfolios
               Subject to IRB Risk-Based Capital Formulas
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  Explanation and
                                                    review of the:
                                                   (1) Structure of
                                                    internal rating
                                                    systems and relation
                                                    between internal and
                                                    external ratings;
                                                   (2) Use of risk
                                                    parameter estimates
                                                    other than for
                                                    regulatory capital
                                                    purposes;
                                                   (3) Process for
                                                    managing and
                                                    recognizing credit
                                                    risk mitigation (see
                                                    Table 8 to Sec.
                                                    324.173); and
                                                   (4) Control
                                                    mechanisms for the
                                                    rating system,
                                                    including discussion
                                                    of independence,
                                                    accountability, and
                                                    rating systems
                                                    review.

[[Page 55569]]

 
                                (b)..............  (1) Description of
                                                    the internal ratings
                                                    process, provided
                                                    separately for the
                                                    following:
                                                   (i) Wholesale
                                                    category;
                                                   (ii) Retail
                                                    subcategories;
                                                   (iii) Residential
                                                    mortgage exposures;
                                                   (iv) Qualifying
                                                    revolving exposures;
                                                    and
                                                   (v) Other retail
                                                    exposures.
                                                   (2) For each category
                                                    and subcategory
                                                    above the
                                                    description should
                                                    include:
                                                   (i) The types of
                                                    exposure included in
                                                    the category/
                                                    subcategories; and
                                                   (ii) The definitions,
                                                    methods and data for
                                                    estimation and
                                                    validation of PD,
                                                    LGD, and EAD,
                                                    including
                                                    assumptions employed
                                                    in the derivation of
                                                    these variables.\1\
Quantitative disclosures: risk  (c)..............  (1) For wholesale
 assessment.                                        exposures, present
                                                    the following
                                                    information across a
                                                    sufficient number of
                                                    PD grades (including
                                                    default) to allow
                                                    for a meaningful
                                                    differentiation of
                                                    credit risk: \2\
                                                   (i) Total EAD; \3\
                                                   (ii) Exposure-
                                                    weighted average LGD
                                                    (percentage);
                                                   (iii) Exposure-
                                                    weighted average
                                                    risk weight; and
                                                   (iv) Amount of
                                                    undrawn commitments
                                                    and exposure-
                                                    weighted average EAD
                                                    including average
                                                    drawdowns prior to
                                                    default for
                                                    wholesale exposures.
                                                   (2) For each retail
                                                    subcategory, present
                                                    the disclosures
                                                    outlined above
                                                    across a sufficient
                                                    number of segments
                                                    to allow for a
                                                    meaningful
                                                    differentiation of
                                                    credit risk.
Quantitative disclosures:       (d)..............  Actual losses in the
 historical results.                                preceding period for
                                                    each category and
                                                    subcategory and how
                                                    this differs from
                                                    past experience. A
                                                    discussion of the
                                                    factors that
                                                    impacted the loss
                                                    experience in the
                                                    preceding period--
                                                    for example, has the
                                                    FDIC-supervised
                                                    institution
                                                    experienced higher
                                                    than average default
                                                    rates, loss rates or
                                                    EADs.
                                (e)..............  The FDIC-supervised
                                                    institution's
                                                    estimates compared
                                                    against actual
                                                    outcomes over a
                                                    longer period.\4\ At
                                                    a minimum, this
                                                    should include
                                                    information on
                                                    estimates of losses
                                                    against actual
                                                    losses in the
                                                    wholesale category
                                                    and each retail
                                                    subcategory over a
                                                    period sufficient to
                                                    allow for a
                                                    meaningful
                                                    assessment of the
                                                    performance of the
                                                    internal rating
                                                    processes for each
                                                    category/
                                                    subcategory.\5\
                                                    Where appropriate,
                                                    the FDIC-supervised
                                                    institution should
                                                    further decompose
                                                    this to provide
                                                    analysis of PD, LGD,
                                                    and EAD outcomes
                                                    against estimates
                                                    provided in the
                                                    quantitative risk
                                                    assessment
                                                    disclosures
                                                    above.\6\
------------------------------------------------------------------------
\1\ This disclosure item does not require a detailed description of the
  model in full--it should provide the reader with a broad overview of
  the model approach, describing definitions of the variables and
  methods for estimating and validating those variables set out in the
  quantitative risk disclosures below. This should be done for each of
  the four category/subcategories. The FDIC-supervised institution must
  disclose any significant differences in approach to estimating these
  variables within each category/subcategories.
\2\ The PD, LGD and EAD disclosures in Table 6 (c) to Sec.   324.173
  should reflect the effects of collateral, qualifying master netting
  agreements, eligible guarantees and eligible credit derivatives as
  defined under this part. Disclosure of each PD grade should include
  the exposure-weighted average PD for each grade. Where an FDIC-
  supervised institution aggregates PD grades for the purposes of
  disclosure, this should be a representative breakdown of the
  distribution of PD grades used for regulatory capital purposes.
\3\ Outstanding loans and EAD on undrawn commitments can be presented on
  a combined basis for these disclosures.
\4\ These disclosures are a way of further informing the reader about
  the reliability of the information provided in the ``quantitative
  disclosures: risk assessment'' over the long run. The disclosures are
  requirements from year-end 2010; in the meantime, early adoption is
  encouraged. The phased implementation is to allow an FDIC-supervised
  institution sufficient time to build up a longer run of data that will
  make these disclosures meaningful.
\5\ This disclosure item is not intended to be prescriptive about the
  period used for this assessment. Upon implementation, it is expected
  that an FDIC-supervised institution would provide these disclosures
  for as long a set of data as possible--for example, if an FDIC-
  supervised institution has 10 years of data, it might choose to
  disclose the average default rates for each PD grade over that 10-year
  period. Annual amounts need not be disclosed.
\6\ An FDIC-supervised institution must provide this further
  decomposition where it will allow users greater insight into the
  reliability of the estimates provided in the ``quantitative
  disclosures: risk assessment.'' In particular, it must provide this
  information where there are material differences between its estimates
  of PD, LGD or EAD compared to actual outcomes over the long run. The
  FDIC-supervised institution must also provide explanations for such
  differences.


  Table 7 to Sec.   324.173--General Disclosure for Counterparty Credit
 Risk of OTC Derivative Contracts, Repo-Style Transactions, and Eligible
                              Margin Loans
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative Disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to OTC
                                                    derivatives,
                                                    eligible margin
                                                    loans, and repo-
                                                    style transactions,
                                                    including:
                                                   (1) Discussion of
                                                    methodology used to
                                                    assign economic
                                                    capital and credit
                                                    limits for
                                                    counterparty credit
                                                    exposures;
                                                   (2) Discussion of
                                                    policies for
                                                    securing collateral,
                                                    valuing and managing
                                                    collateral, and
                                                    establishing credit
                                                    reserves;
                                                   (3) Discussion of the
                                                    primary types of
                                                    collateral taken;
                                                   (4) Discussion of
                                                    policies with
                                                    respect to wrong-way
                                                    risk exposures; and
                                                   (5) Discussion of the
                                                    impact of the amount
                                                    of collateral the
                                                    FDIC-supervised
                                                    institution would
                                                    have to provide if
                                                    the FDIC-supervised
                                                    institution were to
                                                    receive a credit
                                                    rating downgrade.

[[Page 55570]]

 
Quantitative Disclosures......  (b)..............  Gross positive fair
                                                    value of contracts,
                                                    netting benefits,
                                                    netted current
                                                    credit exposure,
                                                    collateral held
                                                    (including type, for
                                                    example, cash,
                                                    government
                                                    securities), and net
                                                    unsecured credit
                                                    exposure.\1\ Also
                                                    report measures for
                                                    EAD used for
                                                    regulatory capital
                                                    for these
                                                    transactions, the
                                                    notional value of
                                                    credit derivative
                                                    hedges purchased for
                                                    counterparty credit
                                                    risk protection,
                                                    and, for FDIC-
                                                    supervised
                                                    institutions not
                                                    using the internal
                                                    models methodology
                                                    in Sec.
                                                    324.132(d), the
                                                    distribution of
                                                    current credit
                                                    exposure by types of
                                                    credit exposure.\2\
                                (c)..............  Notional amount of
                                                    purchased and sold
                                                    credit derivatives,
                                                    segregated between
                                                    use for the FDIC-
                                                    supervised
                                                    institution's own
                                                    credit portfolio and
                                                    for its
                                                    intermediation
                                                    activities,
                                                    including the
                                                    distribution of the
                                                    credit derivative
                                                    products used,
                                                    categorized further
                                                    by protection bought
                                                    and sold within each
                                                    product group.
                                (d)..............  The estimate of alpha
                                                    if the FDIC-
                                                    supervised
                                                    institution has
                                                    received supervisory
                                                    approval to estimate
                                                    alpha.
------------------------------------------------------------------------
\1\ Net unsecured credit exposure is the credit exposure after
  considering the benefits from legally enforceable netting agreements
  and collateral arrangements, without taking into account haircuts for
  price volatility, liquidity, etc.
\2\ This may include interest rate derivative contracts, foreign
  exchange derivative contracts, equity derivative contracts, credit
  derivatives, commodity or other derivative contracts, repo-style
  transactions, and eligible margin loans.


          Table 8 to Sec.   324.173--Credit Risk Mitigation 1 2
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to credit
                                                    risk mitigation,
                                                    including:
                                                   (1) Policies and
                                                    processes for, and
                                                    an indication of the
                                                    extent to which the
                                                    FDIC-supervised
                                                    institution uses, on-
                                                     or off-balance
                                                    sheet netting;
                                                   (2) Policies and
                                                    processes for
                                                    collateral valuation
                                                    and management;
                                                   (3) A description of
                                                    the main types of
                                                    collateral taken by
                                                    the FDIC-supervised
                                                    institution;
                                                   (4) The main types of
                                                    guarantors/credit
                                                    derivative
                                                    counterparties and
                                                    their
                                                    creditworthiness;
                                                    and
                                                   (5) Information about
                                                    (market or credit)
                                                    risk concentrations
                                                    within the
                                                    mitigation taken.
Quantitative disclosures......  (b)..............  For each separately
                                                    disclosed portfolio,
                                                    the total exposure
                                                    (after, where
                                                    applicable, on- or
                                                    off-balance sheet
                                                    netting) that is
                                                    covered by
                                                    guarantees/credit
                                                    derivatives.
------------------------------------------------------------------------
\1\ At a minimum, an FDIC-supervised institution must provide the
  disclosures in Table 8 to Sec.   324.173 in relation to credit risk
  mitigation that has been recognized for the purposes of reducing
  capital requirements under this subpart. Where relevant, FDIC-
  supervised institutions are encouraged to give further information
  about mitigants that have not been recognized for that purpose.
\2\ Credit derivatives and other credit mitigation that are treated for
  the purposes of this subpart as synthetic securitization exposures
  should be excluded from the credit risk mitigation disclosures (in
  Table 8 to Sec.   324.173) and included within those relating to
  securitization (in Table 9 to Sec.   324.173).


                Table 9 to Sec.   324.173--Securitization
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to
                                                    securitization
                                                    (including synthetic
                                                    securitizations),
                                                    including a
                                                    discussion of:
                                                   (1) The FDIC-
                                                    supervised
                                                    institution's
                                                    objectives for
                                                    securitizing assets,
                                                    including the extent
                                                    to which these
                                                    activities transfer
                                                    credit risk of the
                                                    underlying exposures
                                                    away from the FDIC-
                                                    supervised
                                                    institution to other
                                                    entities and
                                                    including the type
                                                    of risks assumed and
                                                    retained with
                                                    resecuritization
                                                    activity; \1\
                                                   (2) The nature of the
                                                    risks (e.g.
                                                    liquidity risk)
                                                    inherent in the
                                                    securitized assets;
                                                   (3) The roles played
                                                    by the FDIC-
                                                    supervised
                                                    institution in the
                                                    securitization
                                                    process \2\ and an
                                                    indication of the
                                                    extent of the FDIC-
                                                    supervised
                                                    institution's
                                                    involvement in each
                                                    of them;
                                                   (4) The processes in
                                                    place to monitor
                                                    changes in the
                                                    credit and market
                                                    risk of
                                                    securitization
                                                    exposures including
                                                    how those processes
                                                    differ for
                                                    resecuritization
                                                    exposures;
                                                   (5) The FDIC-
                                                    supervised
                                                    institution's policy
                                                    for mitigating the
                                                    credit risk retained
                                                    through
                                                    securitization and
                                                    resecuritization
                                                    exposures; and
                                                   (6) The risk-based
                                                    capital approaches
                                                    that the FDIC-
                                                    supervised
                                                    institution follows
                                                    for its
                                                    securitization
                                                    exposures including
                                                    the type of
                                                    securitization
                                                    exposure to which
                                                    each approach
                                                    applies.

[[Page 55571]]

 
                                (b)..............  A list of:
                                                   (1) The type of
                                                    securitization SPEs
                                                    that the FDIC-
                                                    supervised
                                                    institution, as
                                                    sponsor, uses to
                                                    securitize third-
                                                    party exposures. The
                                                    FDIC-supervised
                                                    institution must
                                                    indicate whether it
                                                    has exposure to
                                                    these SPEs, either
                                                    on- or off- balance
                                                    sheet; and
                                                   (2) Affiliated
                                                    entities:
                                                   (i) That the FDIC-
                                                    supervised
                                                    institution manages
                                                    or advises; and
                                                   (ii) That invest
                                                    either in the
                                                    securitization
                                                    exposures that the
                                                    FDIC-supervised
                                                    institution has
                                                    securitized or in
                                                    securitization SPEs
                                                    that the FDIC-
                                                    supervised
                                                    institution
                                                    sponsors.\3\
                                (c)..............  Summary of the FDIC-
                                                    supervised
                                                    institution's
                                                    accounting policies
                                                    for securitization
                                                    activities,
                                                    including:
                                                   (1) Whether the
                                                    transactions are
                                                    treated as sales or
                                                    financings;
                                                   (2) Recognition of
                                                    gain-on-sale;
                                                   (3) Methods and key
                                                    assumptions and
                                                    inputs applied in
                                                    valuing retained or
                                                    purchased interests;
                                                   (4) Changes in
                                                    methods and key
                                                    assumptions and
                                                    inputs from the
                                                    previous period for
                                                    valuing retained
                                                    interests and impact
                                                    of the changes;
                                                   (5) Treatment of
                                                    synthetic
                                                    securitizations;
                                                   (6) How exposures
                                                    intended to be
                                                    securitized are
                                                    valued and whether
                                                    they are recorded
                                                    under subpart E of
                                                    this part; and
                                                   (7) Policies for
                                                    recognizing
                                                    liabilities on the
                                                    balance sheet for
                                                    arrangements that
                                                    could require the
                                                    FDIC-supervised
                                                    institution to
                                                    provide financial
                                                    support for
                                                    securitized assets.
                                (d)..............  An explanation of
                                                    significant changes
                                                    to any of the
                                                    quantitative
                                                    information set
                                                    forth below since
                                                    the last reporting
                                                    period.
Quantitative disclosures......  (e)..............  The total outstanding
                                                    exposures
                                                    securitized \4\ by
                                                    the FDIC-supervised
                                                    institution in
                                                    securitizations that
                                                    meet the operational
                                                    criteria in Sec.
                                                    324.141 (categorized
                                                    into traditional/
                                                    synthetic), by
                                                    underlying exposure
                                                    type \5\ separately
                                                    for securitizations
                                                    of third-party
                                                    exposures for which
                                                    the FDIC-supervised
                                                    institution acts
                                                    only as sponsor.
                                (f)..............  For exposures
                                                    securitized by the
                                                    FDIC-supervised
                                                    institution in
                                                    securitizations that
                                                    meet the operational
                                                    criteria in Sec.
                                                    324.141:
                                                   (1) Amount of
                                                    securitized assets
                                                    that are impaired
                                                    \6\/past due
                                                    categorized by
                                                    exposure type; and
                                                   (2) Losses recognized
                                                    by the FDIC-
                                                    supervised
                                                    institution during
                                                    the current period
                                                    categorized by
                                                    exposure type.\7\
                                (g)..............  The total amount of
                                                    outstanding
                                                    exposures intended
                                                    to be securitized
                                                    categorized by
                                                    exposure type.
                                (h)..............  Aggregate amount of:
                                                   (1) On-balance sheet
                                                    securitization
                                                    exposures retained
                                                    or purchased
                                                    categorized by
                                                    exposure type; and
                                                   (2) Off-balance sheet
                                                    securitization
                                                    exposures
                                                    categorized by
                                                    exposure type.
                                (i)..............  (1) Aggregate amount
                                                    of securitization
                                                    exposures retained
                                                    or purchased and the
                                                    associated capital
                                                    requirements for
                                                    these exposures,
                                                    categorized between
                                                    securitization and
                                                    resecuritization
                                                    exposures, further
                                                    categorized into a
                                                    meaningful number of
                                                    risk weight bands
                                                    and by risk-based
                                                    capital approach
                                                    (e.g. SA, SFA, or
                                                    SSFA).
                                                   (2) Exposures that
                                                    have been deducted
                                                    entirely from tier 1
                                                    capital, CEIOs
                                                    deducted from total
                                                    capital (as
                                                    described in Sec.
                                                    324.42(a)(1)), and
                                                    other exposures
                                                    deducted from total
                                                    capital should be
                                                    disclosed separately
                                                    by exposure type.
                                (j)..............  Summary of current
                                                    year's
                                                    securitization
                                                    activity, including
                                                    the amount of
                                                    exposures
                                                    securitized (by
                                                    exposure type), and
                                                    recognized gain or
                                                    loss on sale by
                                                    asset type.
                                (k)..............  Aggregate amount of
                                                    resecuritization
                                                    exposures retained
                                                    or purchased
                                                    categorized
                                                    according to:
                                                   (1) Exposures to
                                                    which credit risk
                                                    mitigation is
                                                    applied and those
                                                    not applied; and
                                                   (2) Exposures to
                                                    guarantors
                                                    categorized
                                                    according to
                                                    guarantor
                                                    creditworthiness
                                                    categories or
                                                    guarantor name.
------------------------------------------------------------------------
\1\ The FDIC-supervised institution must describe the structure of
  resecuritizations in which it participates; this description must be
  provided for the main categories of resecuritization products in which
  the FDIC-supervised institution is active.
\2\ For example, these roles would include originator, investor,
  servicer, provider of credit enhancement, sponsor, liquidity provider,
  or swap provider.
\3\ For example, money market mutual funds should be listed
  individually, and personal and private trusts, should be noted
  collectively.
\4\ ``Exposures securitized'' include underlying exposures originated by
  the FDIC-supervised institution, whether generated by them or
  purchased, and recognized in the balance sheet, from third parties,
  and third-party exposures included in sponsored transactions.
  Securitization transactions (including underlying exposures originally
  on the FDIC-supervised institution's balance sheet and underlying
  exposures acquired by the FDIC-supervised institution from third-party
  entities) in which the originating bank does not retain any
  securitization exposure should be shown separately but need only be
  reported for the year of inception.
\5\ An FDIC-supervised institution is required to disclose exposures
  regardless of whether there is a capital charge under this part.
\6\ An FDIC-supervised institution must include credit-related other
  than temporary impairment (OTTI).

[[Page 55572]]

 
\7\ For example, charge-offs/allowances (if the assets remain on the
  FDIC-supervised institution's balance sheet) or credit-related OTTI of
  I/O strips and other retained residual interests, as well as
  recognition of liabilities for probable future financial support
  required of the FDIC-supervised institution with respect to
  securitized assets.


              Table 10 to Sec.   324.173--Operational Risk
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement for
                                                    operational risk.
                                (b)..............  Description of the
                                                    AMA, including a
                                                    discussion of
                                                    relevant internal
                                                    and external factors
                                                    considered in the
                                                    FDIC-supervised
                                                    institution's
                                                    measurement
                                                    approach.
                                (c)..............  A description of the
                                                    use of insurance for
                                                    the purpose of
                                                    mitigating
                                                    operational risk.
------------------------------------------------------------------------


  Table 11 to Sec.   324.173--Equities Not Subject to Subpart F of This
                                  Part
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement with
                                                    respect to the
                                                    equity risk of
                                                    equity holdings not
                                                    subject to subpart F
                                                    of this part,
                                                    including:
                                                   (1) Differentiation
                                                    between holdings on
                                                    which capital gains
                                                    are expected and
                                                    those held for other
                                                    objectives,
                                                    including for
                                                    relationship and
                                                    strategic reasons;
                                                    and
                                                   (2) Discussion of
                                                    important policies
                                                    covering the
                                                    valuation of and
                                                    accounting for
                                                    equity holdings not
                                                    subject to subpart F
                                                    of this part. This
                                                    includes the
                                                    accounting
                                                    methodology and
                                                    valuation
                                                    methodologies used,
                                                    including key
                                                    assumptions and
                                                    practices affecting
                                                    valuation as well as
                                                    significant changes
                                                    in these practices.
Quantitative disclosures......  (b)..............  Carrying value on the
                                                    balance sheet of
                                                    equity investments,
                                                    as well as the fair
                                                    value of those
                                                    investments.
                                (c)..............  The types and nature
                                                    of investments,
                                                    including the amount
                                                    that is:
                                                   (1) Publicly traded;
                                                    and
                                                   (2) Non-publicly
                                                    traded.
                                (d)..............  The cumulative
                                                    realized gains
                                                    (losses) arising
                                                    from sales and
                                                    liquidations in the
                                                    reporting period.
                                (e)..............  (1) Total unrealized
                                                    gains (losses) \1\
                                                   (2) Total latent
                                                    revaluation gains
                                                    (losses) \2\
                                                   (3) Any amounts of
                                                    the above included
                                                    in tier 1 and/or
                                                    tier 2 capital.
                                (f)..............  Capital requirements
                                                    categorized by
                                                    appropriate equity
                                                    groupings,
                                                    consistent with the
                                                    FDIC-supervised
                                                    institution's
                                                    methodology, as well
                                                    as the aggregate
                                                    amounts and the type
                                                    of equity
                                                    investments subject
                                                    to any supervisory
                                                    transition regarding
                                                    total capital
                                                    requirements.\3\
------------------------------------------------------------------------
\1\ Unrealized gains (losses) recognized in the balance sheet but not
  through earnings.
\2\ Unrealized gains (losses) not recognized either in the balance sheet
  or through earnings.
\3\ This disclosure must include a breakdown of equities that are
  subject to the 0 percent, 20 percent, 100 percent, 300 percent, 400
  percent, and 600 percent risk weights, as applicable.


     Table 12 to Sec.   324.173--Interest Rate Risk for Non-trading
                               Activities
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Qualitative disclosures.......  (a)..............  The general
                                                    qualitative
                                                    disclosure
                                                    requirement,
                                                    including the nature
                                                    of interest rate
                                                    risk for non-trading
                                                    activities and key
                                                    assumptions,
                                                    including
                                                    assumptions
                                                    regarding loan
                                                    prepayments and
                                                    behavior of non-
                                                    maturity deposits,
                                                    and frequency of
                                                    measurement of
                                                    interest rate risk
                                                    for non-trading
                                                    activities.
Quantitative disclosures......  (b)..............  The increase
                                                    (decline) in
                                                    earnings or economic
                                                    value (or relevant
                                                    measure used by
                                                    management) for
                                                    upward and downward
                                                    rate shocks
                                                    according to
                                                    management's method
                                                    for measuring
                                                    interest rate risk
                                                    for non-trading
                                                    activities,
                                                    categorized by
                                                    currency (as
                                                    appropriate).
------------------------------------------------------------------------

Sec. Sec.  324.174 through 234.200  [Reserved]

Subpart F--Risk-Weighted Assets--Market Risk


Sec.  324.201  Purpose, applicability, and reservation of authority.

    (a) Purpose. This subpart F establishes risk-based capital 
requirements for FDIC-supervised institutions with significant exposure 
to market risk, provides methods for these FDIC-supervised institutions 
to calculate their standardized measure for market risk and, if 
applicable, advanced measure for market risk, and establishes public 
disclosure requirements.
    (b) Applicability. (1) This subpart F applies to any FDIC-
supervised institution with aggregate trading assets and trading 
liabilities (as reported in the FDIC-supervised institution's most 
recent quarterly Call Report), equal to:
    (i) 10 percent or more of quarter-end total assets as reported on 
the most recent quarterly Call Report; or
    (ii) $1 billion or more.
    (2) The FDIC may apply this subpart to any FDIC-supervised 
institution if the FDIC deems it necessary or appropriate because of 
the level of market risk of the FDIC-supervised institution or to 
ensure safe and sound banking practices.
    (3) The FDIC may exclude an FDIC-supervised institution that meets 
the criteria of paragraph (b)(1) of this section from application of 
this subpart if the FDIC determines that the exclusion is appropriate 
based on the level of market risk of the FDIC-supervised institution 
and is consistent with safe and sound banking practices.

[[Page 55573]]

    (c) Reservation of authority (1) The FDIC may require an FDIC-
supervised institution to hold an amount of capital greater than 
otherwise required under this subpart if the FDIC determines that the 
FDIC-supervised institution's capital requirement for market risk as 
calculated under this subpart is not commensurate with the market risk 
of the FDIC-supervised institution's covered positions. In making 
determinations under paragraphs (c)(1) through (c)(3) of this section, 
the FDIC will apply notice and response procedures generally in the 
same manner as the notice and response procedures set forth in Sec.  
324.5(c).
    (2) If the FDIC determines that the risk-based capital requirement 
calculated under this subpart by the FDIC-supervised institution for 
one or more covered positions or portfolios of covered positions is not 
commensurate with the risks associated with those positions or 
portfolios, the FDIC may require the FDIC-supervised institution to 
assign a different risk-based capital requirement to the positions or 
portfolios that more accurately reflects the risk of the positions or 
portfolios.
    (3) The FDIC may also require an FDIC-supervised institution to 
calculate risk-based capital requirements for specific positions or 
portfolios under this subpart, or under subpart D or subpart E of this 
part, as appropriate, to more accurately reflect the risks of the 
positions.
    (4) Nothing in this subpart limits the authority of the FDIC under 
any other provision of law or regulation to take supervisory or 
enforcement action, including action to address unsafe or unsound 
practices or conditions, deficient capital levels, or violations of 
law.


Sec.  324.202  Definitions.

    (a) Terms set forth in Sec.  324.2 and used in this subpart have 
the definitions assigned thereto in Sec.  324.2.
    (b) For the purposes of this subpart, the following terms are 
defined as follows:
    Backtesting means the comparison of an FDIC-supervised 
institution's internal estimates with actual outcomes during a sample 
period not used in model development. For purposes of this subpart, 
backtesting is one form of out-of-sample testing.
    Commodity position means a position for which price risk arises 
from changes in the price of a commodity.
    Corporate debt position means a debt position that is an exposure 
to a company that is not a sovereign entity, the Bank for International 
Settlements, the European Central Bank, the European Commission, the 
International Monetary Fund, a multilateral development bank, a 
depository institution, a foreign bank, a credit union, a public sector 
entity, a GSE, or a securitization.
    Correlation trading position means:
    (1) A securitization position for which all or substantially all of 
the value of the underlying exposures is based on the credit quality of 
a single company for which a two-way market exists, or on commonly 
traded indices based on such exposures for which a two-way market 
exists on the indices; or
    (2) A position that is not a securitization position and that 
hedges a position described in paragraph (1) of this definition; and
    (3) A correlation trading position does not include:
    (i) A resecuritization position;
    (ii) A derivative of a securitization position that does not 
provide a pro rata share in the proceeds of a securitization tranche; 
or
    (iii) A securitization position for which the underlying assets or 
reference exposures are retail exposures, residential mortgage 
exposures, or commercial mortgage exposures.
    Covered position means the following positions:
    (1) A trading asset or trading liability (whether on- or off-
balance sheet),\27\ as reported on Call Report, that meets the 
following conditions:
---------------------------------------------------------------------------

    \27\ Securities subject to repurchase and lending agreements are 
included as if they are still owned by the lender.
---------------------------------------------------------------------------

    (i) The position is a trading position or hedges another covered 
position; \28\ and
---------------------------------------------------------------------------

    \28\ A position that hedges a trading position must be within 
the scope of the bank's hedging strategy as described in paragraph 
(a)(2) of Sec.  324.203.
---------------------------------------------------------------------------

    (ii) The position is free of any restrictive covenants on its 
tradability or the FDIC-supervised institution is able to hedge the 
material risk elements of the position in a two-way market;
    (2) A foreign exchange or commodity position, regardless of whether 
the position is a trading asset or trading liability (excluding any 
structural foreign currency positions that the FDIC-supervised 
institution chooses to exclude with prior supervisory approval); and
    (3) Notwithstanding paragraphs (1) and (2) of this definition, a 
covered position does not include:
    (i) An intangible asset, including any servicing asset;
    (ii) Any hedge of a trading position that the FDIC determines to be 
outside the scope of the FDIC-supervised institution's hedging strategy 
required in paragraph (a)(2) of Sec.  324.203;
    (iii) Any position that, in form or substance, acts as a liquidity 
facility that provides support to asset-backed commercial paper;
    (iv) A credit derivative the FDIC-supervised institution recognizes 
as a guarantee for risk-weighted asset amount calculation purposes 
under subpart D or subpart E of this part;
    (v) Any position that is recognized as a credit valuation 
adjustment hedge under Sec.  324.132(e)(5) or Sec.  324.132(e)(6), 
except as provided in Sec.  324.132(e)(6)(vii);
    (vi) Any equity position that is not publicly traded, other than a 
derivative that references a publicly traded equity and other than a 
position in an investment company as defined in and registered with the 
SEC under the Investment Company Act, provided that all the underlying 
equities held by the investment company are publicly traded;
    (vii) Any equity position that is not publicly traded, other than a 
derivative that references a publicly traded equity and other than a 
position in an entity not domiciled in the United States (or a 
political subdivision thereof) that is supervised and regulated in a 
manner similar to entities described in paragraph (3)(vi) of this 
definition;
    (viii) Any position an FDIC-supervised institution holds with the 
intent to securitize; or
    (ix) Any direct real estate holding.
    Debt position means a covered position that is not a securitization 
position or a correlation trading position and that has a value that 
reacts primarily to changes in interest rates or credit spreads.
    Default by a sovereign entity has the same meaning as the term 
sovereign default under Sec.  324.2.
    Equity position means a covered position that is not a 
securitization position or a correlation trading position and that has 
a value that reacts primarily to changes in equity prices.
    Event risk means the risk of loss on equity or hybrid equity 
positions as a result of a financial event, such as the announcement or 
occurrence of a company merger, acquisition, spin-off, or dissolution.
    Foreign exchange position means a position for which price risk 
arises from changes in foreign exchange rates.
    General market risk means the risk of loss that could result from 
broad market movements, such as changes in the general level of 
interest rates, credit spreads, equity prices, foreign exchange rates, 
or commodity prices.
    Hedge means a position or positions that offset all, or 
substantially all, of one

[[Page 55574]]

or more material risk factors of another position.
    Idiosyncratic risk means the risk of loss in the value of a 
position that arises from changes in risk factors unique to that 
position.
    Incremental risk means the default risk and credit migration risk 
of a position. Default risk means the risk of loss on a position that 
could result from the failure of an obligor to make timely payments of 
principal or interest on its debt obligation, and the risk of loss that 
could result from bankruptcy, insolvency, or similar proceeding. Credit 
migration risk means the price risk that arises from significant 
changes in the underlying credit quality of the position.
    Market risk means the risk of loss on a position that could result 
from movements in market prices.
    Resecuritization position means a covered position that is:
    (1) An on- or off-balance sheet exposure to a resecuritization; or
    (2) An exposure that directly or indirectly references a 
resecuritization exposure in paragraph (1) of this definition.
    Securitization means a transaction in which:
    (1) All or a portion of the credit risk of one or more underlying 
exposures is transferred to one or more third parties;
    (2) The credit risk associated with the underlying exposures has 
been separated into at least two tranches that reflect different levels 
of seniority;
    (3) Performance of the securitization exposures depends upon the 
performance of the underlying exposures;
    (4) All or substantially all of the underlying exposures are 
financial exposures (such as loans, commitments, credit derivatives, 
guarantees, receivables, asset-backed securities, mortgage-backed 
securities, other debt securities, or equity securities);
    (5) For non-synthetic securitizations, the underlying exposures are 
not owned by an operating company;
    (6) The underlying exposures are not owned by a small business 
investment company described in section 302 of the Small Business 
Investment Act;
    (7) The underlying exposures are not owned by a firm an investment 
in which qualifies as a community development investment under section 
24(Eleventh) of the National Bank Act;
    (8) The FDIC may determine that a transaction in which the 
underlying exposures are owned by an investment firm that exercises 
substantially unfettered control over the size and composition of its 
assets, liabilities, and off-balance sheet exposures is not a 
securitization based on the transaction's leverage, risk profile, or 
economic substance;
    (9) The FDIC may deem an exposure to a transaction that meets the 
definition of a securitization, notwithstanding paragraph (5), (6), or 
(7) of this definition, to be a securitization based on the 
transaction's leverage, risk profile, or economic substance; and
    (10) The transaction is not:
    (i) An investment fund;
    (ii) A collective investment fund (as defined in 12 CFR 344.3 
(state nonmember bank) and 12 CFR 390.203 (state savings association));
    (iii) An employee benefit plan as defined in paragraphs (3) and 
(32) of section 3 of ERISA, a ``governmental plan'' (as defined in 29 
USC 1002(32)) that complies with the tax deferral qualification 
requirements provided in the Internal Revenue Code, or any similar 
employee benefit plan established under the laws of a foreign 
jurisdiction; or
    (iv) Registered with the SEC under the Investment Company Act or 
foreign equivalents thereof.
    Securitization position means a covered position that is:
    (1) An on-balance sheet or off-balance sheet credit exposure 
(including credit-enhancing representations and warranties) that arises 
from a securitization (including a resecuritization); or
    (2) An exposure that directly or indirectly references a 
securitization exposure described in paragraph (1) of this definition.
    Sovereign debt position means a direct exposure to a sovereign 
entity.
    Specific risk means the risk of loss on a position that could 
result from factors other than broad market movements and includes 
event risk, default risk, and idiosyncratic risk.
    Structural position in a foreign currency means a position that is 
not a trading position and that is:
    (1) Subordinated debt, equity, or minority interest in a 
consolidated subsidiary that is denominated in a foreign currency;
    (2) Capital assigned to foreign branches that is denominated in a 
foreign currency;
    (3) A position related to an unconsolidated subsidiary or another 
item that is denominated in a foreign currency and that is deducted 
from the FDIC-supervised institution's tier 1 or tier 2 capital; or
    (4) A position designed to hedge an FDIC-supervised institution's 
capital ratios or earnings against the effect on paragraphs (1), (2), 
or (3) of this definition of adverse exchange rate movements.
    Term repo-style transaction means a repo-style transaction that has 
an original maturity in excess of one business day.
    Trading position means a position that is held by the FDIC-
supervised institution for the purpose of short-term resale or with the 
intent of benefiting from actual or expected short-term price 
movements, or to lock in arbitrage profits.
    Two-way market means a market where there are independent bona fide 
offers to buy and sell so that a price reasonably related to the last 
sales price or current bona fide competitive bid and offer quotations 
can be determined within one day and settled at that price within a 
relatively short time frame conforming to trade custom.
    Value-at-Risk (VaR) means the estimate of the maximum amount that 
the value of one or more positions could decline due to market price or 
rate movements during a fixed holding period within a stated confidence 
interval.


Sec.  324.203  Requirements for application of this subpart F.

    (a) Trading positions--(1) Identification of trading positions. An 
FDIC-supervised institution must have clearly defined policies and 
procedures for determining which of its trading assets and trading 
liabilities are trading positions and which of its trading positions 
are correlation trading positions. These policies and procedures must 
take into account:
    (i) The extent to which a position, or a hedge of its material 
risks, can be marked-to-market daily by reference to a two-way market; 
and
    (ii) Possible impairments to the liquidity of a position or its 
hedge.
    (2) Trading and hedging strategies. An FDIC-supervised institution 
must have clearly defined trading and hedging strategies for its 
trading positions that are approved by senior management of the FDIC-
supervised institution.
    (i) The trading strategy must articulate the expected holding 
period of, and the market risk associated with, each portfolio of 
trading positions.
    (ii) The hedging strategy must articulate for each portfolio of 
trading positions the level of market risk the FDIC-supervised 
institution is willing to accept and must detail the instruments, 
techniques, and strategies the FDIC-supervised institution will use to 
hedge the risk of the portfolio.
    (b) Management of covered positions--(1) Active management. An 
FDIC-supervised institution must have clearly defined policies and 
procedures for actively managing all covered

[[Page 55575]]

positions. At a minimum, these policies and procedures must require:
    (i) Marking positions to market or to model on a daily basis;
    (ii) Daily assessment of the FDIC-supervised institution's ability 
to hedge position and portfolio risks, and of the extent of market 
liquidity;
    (iii) Establishment and daily monitoring of limits on positions by 
a risk control unit independent of the trading business unit;
    (iv) Daily monitoring by senior management of information described 
in paragraphs (b)(1)(i) through (b)(1)(iii) of this section;
    (v) At least annual reassessment of established limits on positions 
by senior management; and
    (vi) At least annual assessments by qualified personnel of the 
quality of market inputs to the valuation process, the soundness of key 
assumptions, the reliability of parameter estimation in pricing models, 
and the stability and accuracy of model calibration under alternative 
market scenarios.
    (2) Valuation of covered positions. The FDIC-supervised institution 
must have a process for prudent valuation of its covered positions that 
includes policies and procedures on the valuation of positions, marking 
positions to market or to model, independent price verification, and 
valuation adjustments or reserves. The valuation process must consider, 
as appropriate, unearned credit spreads, close-out costs, early 
termination costs, investing and funding costs, liquidity, and model 
risk.
    (c) Requirements for internal models. (1) An FDIC-supervised 
institution must obtain the prior written approval of the FDIC before 
using any internal model to calculate its risk-based capital 
requirement under this subpart.
    (2) An FDIC-supervised institution must meet all of the 
requirements of this section on an ongoing basis. The FDIC-supervised 
institution must promptly notify the FDIC when:
    (i) The FDIC-supervised institution plans to extend the use of a 
model that the FDIC has approved under this subpart to an additional 
business line or product type;
    (ii) The FDIC-supervised institution makes any change to an 
internal model approved by the FDIC under this subpart that would 
result in a material change in the FDIC-supervised institution's risk-
weighted asset amount for a portfolio of covered positions; or
    (iii) The FDIC-supervised institution makes any material change to 
its modeling assumptions.
    (3) The FDIC may rescind its approval of the use of any internal 
model (in whole or in part) or of the determination of the approach 
under Sec.  324.209(a)(2)(ii) for an FDIC-supervised institution's 
modeled correlation trading positions and determine an appropriate 
capital requirement for the covered positions to which the model would 
apply, if the FDIC determines that the model no longer complies with 
this subpart or fails to reflect accurately the risks of the FDIC-
supervised institution's covered positions.
    (4) The FDIC-supervised institution must periodically, but no less 
frequently than annually, review its internal models in light of 
developments in financial markets and modeling technologies, and 
enhance those models as appropriate to ensure that they continue to 
meet the FDIC's standards for model approval and employ risk 
measurement methodologies that are most appropriate for the FDIC-
supervised institution's covered positions.
    (5) The FDIC-supervised institution must incorporate its internal 
models into its risk management process and integrate the internal 
models used for calculating its VaR-based measure into its daily risk 
management process.
    (6) The level of sophistication of an FDIC-supervised institution's 
internal models must be commensurate with the complexity and amount of 
its covered positions. An FDIC-supervised institution's internal models 
may use any of the generally accepted approaches, including but not 
limited to variance-covariance models, historical simulations, or Monte 
Carlo simulations, to measure market risk.
    (7) The FDIC-supervised institution's internal models must properly 
measure all the material risks in the covered positions to which they 
are applied.
    (8) The FDIC-supervised institution's internal models must 
conservatively assess the risks arising from less liquid positions and 
positions with limited price transparency under realistic market 
scenarios.
    (9) The FDIC-supervised institution must have a rigorous and well-
defined process for re-estimating, re-evaluating, and updating its 
internal models to ensure continued applicability and relevance.
    (10) If an FDIC-supervised institution uses internal models to 
measure specific risk, the internal models must also satisfy the 
requirements in paragraph (b)(1) of Sec.  324.207.
    (d) Control, oversight, and validation mechanisms. (1) The FDIC-
supervised institution must have a risk control unit that reports 
directly to senior management and is independent from the business 
trading units.
    (2) The FDIC-supervised institution must validate its internal 
models initially and on an ongoing basis. The FDIC-supervised 
institution's validation process must be independent of the internal 
models' development, implementation, and operation, or the validation 
process must be subjected to an independent review of its adequacy and 
effectiveness. Validation must include:
    (i) An evaluation of the conceptual soundness of (including 
developmental evidence supporting) the internal models;
    (ii) An ongoing monitoring process that includes verification of 
processes and the comparison of the FDIC-supervised institution's model 
outputs with relevant internal and external data sources or estimation 
techniques; and
    (iii) An outcomes analysis process that includes backtesting. For 
internal models used to calculate the VaR-based measure, this process 
must include a comparison of the changes in the FDIC-supervised 
institution's portfolio value that would have occurred were end-of-day 
positions to remain unchanged (therefore, excluding fees, commissions, 
reserves, net interest income, and intraday trading) with VaR-based 
measures during a sample period not used in model development.
    (3) The FDIC-supervised institution must stress test the market 
risk of its covered positions at a frequency appropriate to each 
portfolio, and in no case less frequently than quarterly. The stress 
tests must take into account concentration risk (including but not 
limited to concentrations in single issuers, industries, sectors, or 
markets), illiquidity under stressed market conditions, and risks 
arising from the FDIC-supervised institution's trading activities that 
may not be adequately captured in its internal models.
    (4) The FDIC-supervised institution must have an internal audit 
function independent of business-line management that at least annually 
assesses the effectiveness of the controls supporting the FDIC-
supervised institution's market risk measurement systems, including the 
activities of the business trading units and independent risk control 
unit, compliance with policies and procedures, and calculation of the 
FDIC-supervised institution's measures for market risk under this 
subpart. At least annually, the internal audit function must report its 
findings to the FDIC-supervised institution's board of directors (or a 
committee thereof).
    (e) Internal assessment of capital adequacy. The FDIC-supervised 
institution must have a rigorous process

[[Page 55576]]

for assessing its overall capital adequacy in relation to its market 
risk. The assessment must take into account risks that may not be 
captured fully in the VaR-based measure, including concentration and 
liquidity risk under stressed market conditions.
    (f) Documentation. The FDIC-supervised institution must adequately 
document all material aspects of its internal models, management and 
valuation of covered positions, control, oversight, validation and 
review processes and results, and internal assessment of capital 
adequacy.


Sec.  324.204  Measure for market risk.

    (a) General requirement. (1) An FDIC-supervised institution must 
calculate its standardized measure for market risk by following the 
steps described in paragraph (a)(2) of this section. An advanced 
approaches FDIC-supervised institution also must calculate an advanced 
measure for market risk by following the steps in paragraph (a)(2) of 
this section.
    (2) Measure for market risk. An FDIC-supervised institution must 
calculate the standardized measure for market risk, which equals the 
sum of the VaR-based capital requirement, stressed VaR-based capital 
requirement, specific risk add-ons, incremental risk capital 
requirement, comprehensive risk capital requirement, and capital 
requirement for de minimis exposures all as defined under this 
paragraph (a)(2), (except, that the FDIC-supervised institution may not 
use the SFA in Sec.  324.210(b)(2)(vii)(B) for purposes of this 
calculation), plus any additional capital requirement established by 
the FDIC. An advanced approaches FDIC-supervised institution that has 
completed the parallel run process and that has received notifications 
from the FDIC pursuant to Sec.  324.121(d) also must calculate the 
advanced measure for market risk, which equals the sum of the VaR-based 
capital requirement, stressed VaR-based capital requirement, specific 
risk add-ons, incremental risk capital requirement, comprehensive risk 
capital requirement, and capital requirement for de minimis exposures 
as defined under this paragraph (a)(2), plus any additional capital 
requirement established by the FDIC.
    (i) VaR-based capital requirement. An FDIC-supervised institution's 
VaR-based capital requirement equals the greater of:
    (A) The previous day's VaR-based measure as calculated under Sec.  
324.205; or
    (B) The average of the daily VaR-based measures as calculated under 
Sec.  324.205 for each of the preceding 60 business days multiplied by 
three, except as provided in paragraph (b) of this section.
    (ii) Stressed VaR-based capital requirement. An FDIC-supervised 
institution's stressed VaR-based capital requirement equals the greater 
of:
    (A) The most recent stressed VaR-based measure as calculated under 
Sec.  324.206; or
    (B) The average of the stressed VaR-based measures as calculated 
under Sec.  324.206 for each of the preceding 12 weeks multiplied by 
three, except as provided in paragraph (b) of this section.
    (iii) Specific risk add-ons. An FDIC-supervised institution's 
specific risk add-ons equal any specific risk add-ons that are required 
under Sec.  324.207 and are calculated in accordance with Sec.  
324.210.
    (iv) Incremental risk capital requirement. An FDIC-supervised 
institution's incremental risk capital requirement equals any 
incremental risk capital requirement as calculated under Sec.  324.208.
    (v) Comprehensive risk capital requirement. An FDIC-supervised 
institution's comprehensive risk capital requirement equals any 
comprehensive risk capital requirement as calculated under Sec.  
324.209.
    (vi) Capital requirement for de minimis exposures. An FDIC-
supervised institution's capital requirement for de minimis exposures 
equals:
    (A) The absolute value of the fair value of those de minimis 
exposures that are not captured in the FDIC-supervised institution's 
VaR-based measure or under paragraph (a)(2)(vi)(B) of this section; and
    (B) With the prior written approval of the FDIC, the capital 
requirement for any de minimis exposures using alternative techniques 
that appropriately measure the market risk associated with those 
exposures.
    (b) Backtesting. An FDIC-supervised institution must compare each 
of its most recent 250 business days' trading losses (excluding fees, 
commissions, reserves, net interest income, and intraday trading) with 
the corresponding daily VaR-based measures calibrated to a one-day 
holding period and at a one-tail, 99.0 percent confidence level. An 
FDIC-supervised institution must begin backtesting as required by this 
paragraph (b) no later than one year after the later of January 1, 
2014, and the date on which the FDIC-supervised institution becomes 
subject to this subpart. In the interim, consistent with safety and 
soundness principles, an FDIC-supervised institution subject to this 
subpart as of January 1, 2014 should continue to follow backtesting 
procedures in accordance with the FDIC's supervisory expectations.
    (1) Once each quarter, the FDIC-supervised institution must 
identify the number of exceptions (that is, the number of business days 
for which the actual daily net trading loss, if any, exceeds the 
corresponding daily VaR-based measure) that have occurred over the 
preceding 250 business days.
    (2) An FDIC-supervised institution must use the multiplication 
factor in Table 1 to Sec.  324.204 that corresponds to the number of 
exceptions identified in paragraph (b)(1) of this section to determine 
its VaR-based capital requirement for market risk under paragraph 
(a)(2)(i) of this section and to determine its stressed VaR-based 
capital requirement for market risk under paragraph (a)(2)(ii) of this 
section until it obtains the next quarter's backtesting results, unless 
the FDIC notifies the FDIC-supervised institution in writing that a 
different adjustment or other action is appropriate.

  Table 1 to Sec.   324.204--Multiplication Factors Based on Results of
                               Backtesting
------------------------------------------------------------------------
                                                         Multiplication
                 Number of exceptions                        factor
------------------------------------------------------------------------
4 or fewer...........................................               3.00
5....................................................               3.40
6....................................................               3.50
7....................................................               3.65
8....................................................               3.75
9....................................................               3.85
10 or more...........................................               4.00
------------------------------------------------------------------------

Sec.  324.205  VaR-based measure.

    (a) General requirement. An FDIC-supervised institution must use 
one or more internal models to calculate daily a VaR-based measure of 
the general market risk of all covered positions. The daily VaR-based 
measure also may reflect the FDIC-supervised institution's specific 
risk for one or more portfolios of debt and equity positions, if the 
internal models meet the requirements of Sec.  324.207(b)(1). The daily 
VaR-based measure must also reflect the FDIC-supervised institution's 
specific risk for any portfolio of correlation trading positions that 
is modeled under Sec.  324.209. An FDIC-supervised institution may 
elect to include term repo-style transactions in its VaR-based measure, 
provided that the FDIC-supervised institution includes all such term 
repo-style transactions consistently over time.
    (1) The FDIC-supervised institution's internal models for 
calculating its VaR-

[[Page 55577]]

based measure must use risk factors sufficient to measure the market 
risk inherent in all covered positions. The market risk categories must 
include, as appropriate, interest rate risk, credit spread risk, equity 
price risk, foreign exchange risk, and commodity price risk. For 
material positions in the major currencies and markets, modeling 
techniques must incorporate enough segments of the yield curve--in no 
case less than six--to capture differences in volatility and less than 
perfect correlation of rates along the yield curve.
    (2) The VaR-based measure may incorporate empirical correlations 
within and across risk categories, provided the FDIC-supervised 
institution validates and demonstrates the reasonableness of its 
process for measuring correlations. If the VaR-based measure does not 
incorporate empirical correlations across risk categories, the FDIC-
supervised institution must add the separate measures from its internal 
models used to calculate the VaR-based measure for the appropriate 
market risk categories (interest rate risk, credit spread risk, equity 
price risk, foreign exchange rate risk, and/or commodity price risk) to 
determine its aggregate VaR-based measure.
    (3) The VaR-based measure must include the risks arising from the 
nonlinear price characteristics of options positions or positions with 
embedded optionality and the sensitivity of the fair value of the 
positions to changes in the volatility of the underlying rates, prices, 
or other material risk factors. An FDIC-supervised institution with a 
large or complex options portfolio must measure the volatility of 
options positions or positions with embedded optionality by different 
maturities and/or strike prices, where material.
    (4) The FDIC-supervised institution must be able to justify to the 
satisfaction of the FDIC the omission of any risk factors from the 
calculation of its VaR-based measure that the FDIC-supervised 
institution uses in its pricing models.
    (5) The FDIC-supervised institution must demonstrate to the 
satisfaction of the FDIC the appropriateness of any proxies used to 
capture the risks of the FDIC-supervised institution's actual positions 
for which such proxies are used.
    (b) Quantitative requirements for VaR-based measure. (1) The VaR-
based measure must be calculated on a daily basis using a one-tail, 
99.0 percent confidence level, and a holding period equivalent to a 10-
business-day movement in underlying risk factors, such as rates, 
spreads, and prices. To calculate VaR-based measures using a 10-
business-day holding period, the FDIC-supervised institution may 
calculate 10-business-day measures directly or may convert VaR-based 
measures using holding periods other than 10 business days to the 
equivalent of a 10-business-day holding period. An FDIC-supervised 
institution that converts its VaR-based measure in such a manner must 
be able to justify the reasonableness of its approach to the 
satisfaction of the FDIC.
    (2) The VaR-based measure must be based on a historical observation 
period of at least one year. Data used to determine the VaR-based 
measure must be relevant to the FDIC-supervised institution's actual 
exposures and of sufficient quality to support the calculation of risk-
based capital requirements. The FDIC-supervised institution must update 
data sets at least monthly or more frequently as changes in market 
conditions or portfolio composition warrant. For an FDIC-supervised 
institution that uses a weighting scheme or other method for the 
historical observation period, the FDIC-supervised institution must 
either:
    (i) Use an effective observation period of at least one year in 
which the average time lag of the observations is at least six months; 
or
    (ii) Demonstrate to the FDIC that its weighting scheme is more 
effective than a weighting scheme with an average time lag of at least 
six months representing the volatility of the FDIC-supervised 
institution's trading portfolio over a full business cycle. An FDIC-
supervised institution using this option must update its data more 
frequently than monthly and in a manner appropriate for the type of 
weighting scheme.
    (c) An FDIC-supervised institution must divide its portfolio into a 
number of significant subportfolios approved by the FDIC for 
subportfolio backtesting purposes. These subportfolios must be 
sufficient to allow the FDIC-supervised institution and the FDIC to 
assess the adequacy of the VaR model at the risk factor level; the FDIC 
will evaluate the appropriateness of these subportfolios relative to 
the value and composition of the FDIC-supervised institution's covered 
positions. The FDIC-supervised institution must retain and make 
available to the FDIC the following information for each subportfolio 
for each business day over the previous two years (500 business days), 
with no more than a 60-day lag:
    (1) A daily VaR-based measure for the subportfolio calibrated to a 
one-tail, 99.0 percent confidence level;
    (2) The daily profit or loss for the subportfolio (that is, the net 
change in price of the positions held in the portfolio at the end of 
the previous business day); and
    (3) The p-value of the profit or loss on each day (that is, the 
probability of observing a profit that is less than, or a loss that is 
greater than, the amount reported for purposes of paragraph (c)(2) of 
this section based on the model used to calculate the VaR-based measure 
described in paragraph (c)(1) of this section).


Sec.  324.206  Stressed VaR-based measure.

    (a) General requirement. At least weekly, an FDIC-supervised 
institution must use the same internal model(s) used to calculate its 
VaR-based measure to calculate a stressed VaR-based measure.
    (b) Quantitative requirements for stressed VaR-based measure. (1) 
An FDIC-supervised institution must calculate a stressed VaR-based 
measure for its covered positions using the same model(s) used to 
calculate the VaR-based measure, subject to the same confidence level 
and holding period applicable to the VaR-based measure under Sec.  
324.205, but with model inputs calibrated to historical data from a 
continuous 12-month period that reflects a period of significant 
financial stress appropriate to the FDIC-supervised institution's 
current portfolio.
    (2) The stressed VaR-based measure must be calculated at least 
weekly and be no less than the FDIC-supervised institution's VaR-based 
measure.
    (3) An FDIC-supervised institution must have policies and 
procedures that describe how it determines the period of significant 
financial stress used to calculate the FDIC-supervised institution's 
stressed VaR-based measure under this section and must be able to 
provide empirical support for the period used. The FDIC-supervised 
institution must obtain the prior approval of the FDIC for, and notify 
the FDIC if the FDIC-supervised institution makes any material changes 
to, these policies and procedures. The policies and procedures must 
address:
    (i) How the FDIC-supervised institution links the period of 
significant financial stress used to calculate the stressed VaR-based 
measure to the composition and directional bias of its current 
portfolio; and
    (ii) The FDIC-supervised institution's process for selecting, 
reviewing, and updating the period of significant financial stress used 
to calculate the stressed VaR-based measure and for monitoring the 
appropriateness of the

[[Page 55578]]

period to the FDIC-supervised institution's current portfolio.
    (4) Nothing in this section prevents the FDIC from requiring an 
FDIC-supervised institution to use a different period of significant 
financial stress in the calculation of the stressed VaR-based measure.


Sec.  324.207  Specific risk.

    (a) General requirement. An FDIC-supervised institution must use 
one of the methods in this section to measure the specific risk for 
each of its debt, equity, and securitization positions with specific 
risk.
    (b) Modeled specific risk. An FDIC-supervised institution may use 
models to measure the specific risk of covered positions as provided in 
Sec.  324.205(a) (therefore, excluding securitization positions that 
are not modeled under Sec.  324.209). An FDIC-supervised institution 
must use models to measure the specific risk of correlation trading 
positions that are modeled under Sec.  324.209.
    (1) Requirements for specific risk modeling. (i) If an FDIC-
supervised institution uses internal models to measure the specific 
risk of a portfolio, the internal models must:
    (A) Explain the historical price variation in the portfolio;
    (B) Be responsive to changes in market conditions;
    (C) Be robust to an adverse environment, including signaling rising 
risk in an adverse environment; and
    (D) Capture all material components of specific risk for the debt 
and equity positions in the portfolio. Specifically, the internal 
models must:
    (1) Capture event risk and idiosyncratic risk; and
    (2) Capture and demonstrate sensitivity to material differences 
between positions that are similar but not identical and to changes in 
portfolio composition and concentrations.
    (ii) If an FDIC-supervised institution calculates an incremental 
risk measure for a portfolio of debt or equity positions under Sec.  
324.208, the FDIC-supervised institution is not required to capture 
default and credit migration risks in its internal models used to 
measure the specific risk of those portfolios.
    (2) Specific risk fully modeled for one or more portfolios. If the 
FDIC-supervised institution's VaR-based measure captures all material 
aspects of specific risk for one or more of its portfolios of debt, 
equity, or correlation trading positions, the FDIC-supervised 
institution has no specific risk add-on for those portfolios for 
purposes of Sec.  324.204(a)(2)(iii).
    (c) Specific risk not modeled. (1) If the FDIC-supervised 
institution's VaR-based measure does not capture all material aspects 
of specific risk for a portfolio of debt, equity, or correlation 
trading positions, the FDIC-supervised institution must calculate a 
specific-risk add-on for the portfolio under the standardized 
measurement method as described in Sec.  324.210.
    (2) An FDIC-supervised institution must calculate a specific risk 
add-on under the standardized measurement method as described in Sec.  
324.210 for all of its securitization positions that are not modeled 
under Sec.  324.209.


Sec.  324.208  Incremental risk.

    (a) General requirement. An FDIC-supervised institution that 
measures the specific risk of a portfolio of debt positions under Sec.  
324.207(b) using internal models must calculate at least weekly an 
incremental risk measure for that portfolio according to the 
requirements in this section. The incremental risk measure is the FDIC-
supervised institution's measure of potential losses due to incremental 
risk over a one-year time horizon at a one-tail, 99.9 percent 
confidence level, either under the assumption of a constant level of 
risk, or under the assumption of constant positions. With the prior 
approval of the FDIC, an FDIC-supervised institution may choose to 
include portfolios of equity positions in its incremental risk model, 
provided that it consistently includes such equity positions in a 
manner that is consistent with how the FDIC-supervised institution 
internally measures and manages the incremental risk of such positions 
at the portfolio level. If equity positions are included in the model, 
for modeling purposes default is considered to have occurred upon the 
default of any debt of the issuer of the equity position. An FDIC-
supervised institution may not include correlation trading positions or 
securitization positions in its incremental risk measure.
    (b) Requirements for incremental risk modeling. For purposes of 
calculating the incremental risk measure, the incremental risk model 
must:
    (1) Measure incremental risk over a one-year time horizon and at a 
one-tail, 99.9 percent confidence level, either under the assumption of 
a constant level of risk, or under the assumption of constant 
positions.
    (i) A constant level of risk assumption means that the FDIC-
supervised institution rebalances, or rolls over, its trading positions 
at the beginning of each liquidity horizon over the one-year horizon in 
a manner that maintains the FDIC-supervised institution's initial risk 
level. The FDIC-supervised institution must determine the frequency of 
rebalancing in a manner consistent with the liquidity horizons of the 
positions in the portfolio. The liquidity horizon of a position or set 
of positions is the time required for an FDIC-supervised institution to 
reduce its exposure to, or hedge all of its material risks of, the 
position(s) in a stressed market. The liquidity horizon for a position 
or set of positions may not be less than the shorter of three months or 
the contractual maturity of the position.
    (ii) A constant position assumption means that the FDIC-supervised 
institution maintains the same set of positions throughout the one-year 
horizon. If an FDIC-supervised institution uses this assumption, it 
must do so consistently across all portfolios.
    (iii) An FDIC-supervised institution's selection of a constant 
position or a constant risk assumption must be consistent between the 
FDIC-supervised institution's incremental risk model and its 
comprehensive risk model described in Sec.  324.209, if applicable.
    (iv) An FDIC-supervised institution's treatment of liquidity 
horizons must be consistent between the FDIC-supervised institution's 
incremental risk model and its comprehensive risk model described in 
Sec.  324.209, if applicable.
    (2) Recognize the impact of correlations between default and 
migration events among obligors.
    (3) Reflect the effect of issuer and market concentrations, as well 
as concentrations that can arise within and across product classes 
during stressed conditions.
    (4) Reflect netting only of long and short positions that reference 
the same financial instrument.
    (5) Reflect any material mismatch between a position and its hedge.
    (6) Recognize the effect that liquidity horizons have on dynamic 
hedging strategies. In such cases, an FDIC-supervised institution must:
    (i) Choose to model the rebalancing of the hedge consistently over 
the relevant set of trading positions;
    (ii) Demonstrate that the inclusion of rebalancing results in a 
more appropriate risk measurement;
    (iii) Demonstrate that the market for the hedge is sufficiently 
liquid to permit rebalancing during periods of stress; and
    (iv) Capture in the incremental risk model any residual risks 
arising from such hedging strategies.
    (7) Reflect the nonlinear impact of options and other positions 
with material nonlinear behavior with respect to default and migration 
changes.
    (8) Maintain consistency with the FDIC-supervised institution's 
internal risk management methodologies for

[[Page 55579]]

identifying, measuring, and managing risk.
    (c) Calculation of incremental risk capital requirement. The 
incremental risk capital requirement is the greater of:
    (1) The average of the incremental risk measures over the previous 
12 weeks; or
    (2) The most recent incremental risk measure.


Sec.  324.209  Comprehensive risk.

    (a) General requirement. (1) Subject to the prior approval of the 
FDIC, an FDIC-supervised institution may use the method in this section 
to measure comprehensive risk, that is, all price risk, for one or more 
portfolios of correlation trading positions.
    (2) An FDIC-supervised institution that measures the price risk of 
a portfolio of correlation trading positions using internal models must 
calculate at least weekly a comprehensive risk measure that captures 
all price risk according to the requirements of this section. The 
comprehensive risk measure is either:
    (i) The sum of:
    (A) The FDIC-supervised institution's modeled measure of all price 
risk determined according to the requirements in paragraph (b) of this 
section; and
    (B) A surcharge for the FDIC-supervised institution's modeled 
correlation trading positions equal to the total specific risk add-on 
for such positions as calculated under Sec.  324.210 multiplied by 8.0 
percent; or
    (ii) With approval of the FDIC and provided the FDIC-supervised 
institution has met the requirements of this section for a period of at 
least one year and can demonstrate the effectiveness of the model 
through the results of ongoing model validation efforts including 
robust benchmarking, the greater of:
    (A) The FDIC-supervised institution's modeled measure of all price 
risk determined according to the requirements in paragraph (b) of this 
section; or
    (B) The total specific risk add-on that would apply to the bank's 
modeled correlation trading positions as calculated under Sec.  324.210 
multiplied by 8.0 percent.
    (b) Requirements for modeling all price risk. If an FDIC-supervised 
institution uses an internal model to measure the price risk of a 
portfolio of correlation trading positions:
    (1) The internal model must measure comprehensive risk over a one-
year time horizon at a one-tail, 99.9 percent confidence level, either 
under the assumption of a constant level of risk, or under the 
assumption of constant positions.
    (2) The model must capture all material price risk, including but 
not limited to the following:
    (i) The risks associated with the contractual structure of cash 
flows of the position, its issuer, and its underlying exposures;
    (ii) Credit spread risk, including nonlinear price risks;
    (iii) The volatility of implied correlations, including nonlinear 
price risks such as the cross-effect between spreads and correlations;
    (iv) Basis risk;
    (v) Recovery rate volatility as it relates to the propensity for 
recovery rates to affect tranche prices; and
    (vi) To the extent the comprehensive risk measure incorporates the 
benefits of dynamic hedging, the static nature of the hedge over the 
liquidity horizon must be recognized. In such cases, an FDIC-supervised 
institution must:
    (A) Choose to model the rebalancing of the hedge consistently over 
the relevant set of trading positions;
    (B) Demonstrate that the inclusion of rebalancing results in a more 
appropriate risk measurement;
    (C) Demonstrate that the market for the hedge is sufficiently 
liquid to permit rebalancing during periods of stress; and
    (D) Capture in the comprehensive risk model any residual risks 
arising from such hedging strategies;
    (3) The FDIC-supervised institution must use market data that are 
relevant in representing the risk profile of the FDIC-supervised 
institution's correlation trading positions in order to ensure that the 
FDIC-supervised institution fully captures the material risks of the 
correlation trading positions in its comprehensive risk measure in 
accordance with this section; and
    (4) The FDIC-supervised institution must be able to demonstrate 
that its model is an appropriate representation of comprehensive risk 
in light of the historical price variation of its correlation trading 
positions.
    (c) Requirements for stress testing. (1) An FDIC-supervised 
institution must at least weekly apply specific, supervisory stress 
scenarios to its portfolio of correlation trading positions that 
capture changes in:
    (i) Default rates;
    (ii) Recovery rates;
    (iii) Credit spreads;
    (iv) Correlations of underlying exposures; and
    (v) Correlations of a correlation trading position and its hedge.
    (2) Other requirements. (i) An FDIC-supervised institution must 
retain and make available to the FDIC the results of the supervisory 
stress testing, including comparisons with the capital requirements 
generated by the FDIC-supervised institution's comprehensive risk 
model.
    (ii) An FDIC-supervised institution must report to the FDIC 
promptly any instances where the stress tests indicate any material 
deficiencies in the comprehensive risk model.
    (d) Calculation of comprehensive risk capital requirement. The 
comprehensive risk capital requirement is the greater of:
    (1) The average of the comprehensive risk measures over the 
previous 12 weeks; or
    (2) The most recent comprehensive risk measure.


Sec.  324.210  Standardized measurement method for specific risk.

    (a) General requirement. An FDIC-supervised institution must 
calculate a total specific risk add-on for each portfolio of debt and 
equity positions for which the FDIC-supervised institution's VaR-based 
measure does not capture all material aspects of specific risk and for 
all securitization positions that are not modeled under Sec.  324.209. 
An FDIC-supervised institution must calculate each specific risk add-on 
in accordance with the requirements of this section. Notwithstanding 
any other definition or requirement in this subpart, a position that 
would have qualified as a debt position or an equity position but for 
the fact that it qualifies as a correlation trading position under 
paragraph (2) of the definition of correlation trading position in 
Sec.  324.2, shall be considered a debt position or an equity position, 
respectively, for purposes of this Sec.  324.210.
    (1) The specific risk add-on for an individual debt or 
securitization position that represents sold credit protection is 
capped at the notional amount of the credit derivative contract. The 
specific risk add-on for an individual debt or securitization position 
that represents purchased credit protection is capped at the current 
fair value of the transaction plus the absolute value of the present 
value of all remaining payments to the protection seller under the 
transaction. This sum is equal to the value of the protection leg of 
the transaction.
    (2) For debt, equity, or securitization positions that are 
derivatives with linear payoffs, an FDIC-supervised institution must 
assign a specific risk-weighting factor to the fair value of the 
effective notional amount of the underlying instrument or index 
portfolio, except for a securitization position for which the FDIC-
supervised institution directly calculates a specific risk add-on using 
the SFA in paragraph (b)(2)(vii)(B) of this section. A swap must be 
included

[[Page 55580]]

as an effective notional position in the underlying instrument or 
portfolio, with the receiving side treated as a long position and the 
paying side treated as a short position. For debt, equity, or 
securitization positions that are derivatives with nonlinear payoffs, 
an FDIC-supervised institution must risk weight the fair value of the 
effective notional amount of the underlying instrument or portfolio 
multiplied by the derivative's delta.
    (3) For debt, equity, or securitization positions, an FDIC-
supervised institution may net long and short positions (including 
derivatives) in identical issues or identical indices. An FDIC-
supervised institution may also net positions in depositary receipts 
against an opposite position in an identical equity in different 
markets, provided that the FDIC-supervised institution includes the 
costs of conversion.
    (4) A set of transactions consisting of either a debt position and 
its credit derivative hedge or a securitization position and its credit 
derivative hedge has a specific risk add-on of zero if:
    (i) The debt or securitization position is fully hedged by a total 
return swap (or similar instrument where there is a matching of swap 
payments and changes in fair value of the debt or securitization 
position);
    (ii) There is an exact match between the reference obligation of 
the swap and the debt or securitization position;
    (iii) There is an exact match between the currency of the swap and 
the debt or securitization position; and
    (iv) There is either an exact match between the maturity date of 
the swap and the maturity date of the debt or securitization position; 
or, in cases where a total return swap references a portfolio of 
positions with different maturity dates, the total return swap maturity 
date must match the maturity date of the underlying asset in that 
portfolio that has the latest maturity date.
    (5) The specific risk add-on for a set of transactions consisting 
of either a debt position and its credit derivative hedge or a 
securitization position and its credit derivative hedge that does not 
meet the criteria of paragraph (a)(4) of this section is equal to 20.0 
percent of the capital requirement for the side of the transaction with 
the higher specific risk add-on when:
    (i) The credit risk of the position is fully hedged by a credit 
default swap or similar instrument;
    (ii) There is an exact match between the reference obligation of 
the credit derivative hedge and the debt or securitization position;
    (iii) There is an exact match between the currency of the credit 
derivative hedge and the debt or securitization position; and
    (iv) There is either an exact match between the maturity date of 
the credit derivative hedge and the maturity date of the debt or 
securitization position; or, in the case where the credit derivative 
hedge has a standard maturity date:
    (A) The maturity date of the credit derivative hedge is within 30 
business days of the maturity date of the debt or securitization 
position; or
    (B) For purchased credit protection, the maturity date of the 
credit derivative hedge is later than the maturity date of the debt or 
securitization position, but is no later than the standard maturity 
date for that instrument that immediately follows the maturity date of 
the debt or securitization position. The maturity date of the credit 
derivative hedge may not exceed the maturity date of the debt or 
securitization position by more than 90 calendar days.
    (6) The specific risk add-on for a set of transactions consisting 
of either a debt position and its credit derivative hedge or a 
securitization position and its credit derivative hedge that does not 
meet the criteria of either paragraph (a)(4) or (a)(5) of this section, 
but in which all or substantially all of the price risk has been 
hedged, is equal to the specific risk add-on for the side of the 
transaction with the higher specific risk add-on.
    (b) Debt and securitization positions. (1) The total specific risk 
add-on for a portfolio of debt or securitization positions is the sum 
of the specific risk add-ons for individual debt or securitization 
positions, as computed under this section. To determine the specific 
risk add-on for individual debt or securitization positions, an FDIC-
supervised institution must multiply the absolute value of the current 
fair value of each net long or net short debt or securitization 
position in the portfolio by the appropriate specific risk-weighting 
factor as set forth in paragraphs (b)(2)(i) through (b)(2)(vii) of this 
section.
    (2) For the purpose of this section, the appropriate specific risk-
weighting factors include:
    (i) Sovereign debt positions. (A) In accordance with Table 1 to 
Sec.  324.210, an FDIC-supervised institution must assign a specific 
risk-weighting factor to a sovereign debt position based on the CRC 
applicable to the sovereign, and, as applicable, the remaining 
contractual maturity of the position, or if there is no CRC applicable 
to the sovereign, based on whether the sovereign entity is a member of 
the OECD. Notwithstanding any other provision in this subpart, 
sovereign debt positions that are backed by the full faith and credit 
of the United States are treated as having a CRC of 0.

             Table 1 to Sec.   324.210--Specific Risk-Weighting Factors for Sovereign Debt Positions
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                 Specific risk-weighting factor (in percent)
----------------------------------------------------------------------------------------------------------------
CRC........................................             0-1                          0.0
                                            --------------------------------------------------------------------
                                                        2-3  Remaining contractual maturity of 6            0.25
                                                              months or less.
                                                            ----------------------------------------------------
                                                             Remaining contractual maturity of               1.0
                                                              greater than 6 and up to and
                                                              including 24 months.
                                                            ----------------------------------------------------
                                                             Remaining contractual maturity                  1.6
                                                              exceeds 24 months.
                                            --------------------------------------------------------------------
                                                        4-6                          8.0
                                            --------------------------------------------------------------------
                                                          7                          12.0
----------------------------------------------------------------------------------------------------------------
OECD Member with No CRC                                              0.0
----------------------------------------------------------------------------------------------------------------
Non-OECD Member with No CRC                                          8.0
----------------------------------------------------------------------------------------------------------------

[[Page 55581]]

 
Sovereign Default                                                    12.0
----------------------------------------------------------------------------------------------------------------

    (B) Notwithstanding paragraph (b)(2)(i)(A) of this section, an 
FDIC-supervised institution may assign to a sovereign debt position a 
specific risk-weighting factor that is lower than the applicable 
specific risk-weighting factor in Table 1 to Sec.  324.210 if:
    (1) The position is denominated in the sovereign entity's currency;
    (2) The FDIC-supervised institution has at least an equivalent 
amount of liabilities in that currency; and
    (3) The sovereign entity allows banks under its jurisdiction to 
assign the lower specific risk-weighting factor to the same exposures 
to the sovereign entity.
    (C) An FDIC-supervised institution must assign a 12.0 percent 
specific risk-weighting factor to a sovereign debt position immediately 
upon determination a default has occurred; or if a default has occurred 
within the previous five years.
    (D) An FDIC-supervised institution must assign a 0.0 percent 
specific risk-weighting factor to a sovereign debt position if the 
sovereign entity is a member of the OECD and does not have a CRC 
assigned to it, except as provided in paragraph (b)(2)(i)(C) of this 
section.
    (E) An FDIC-supervised institution must assign an 8.0 percent 
specific risk-weighting factor to a sovereign debt position if the 
sovereign is not a member of the OECD and does not have a CRC assigned 
to it, except as provided in paragraph (b)(2)(i)(C) of this section.
    (ii) Certain supranational entity and multilateral development bank 
debt positions. An FDIC-supervised institution may assign a 0.0 percent 
specific risk-weighting factor to a debt position that is an exposure 
to the Bank for International Settlements, the European Central Bank, 
the European Commission, the International Monetary Fund, or an MDB.
    (iii) GSE debt positions. An FDIC-supervised institution must 
assign a 1.6 percent specific risk-weighting factor to a debt position 
that is an exposure to a GSE. Notwithstanding the foregoing, an FDIC-
supervised institution must assign an 8.0 percent specific risk-
weighting factor to preferred stock issued by a GSE.
    (iv) Depository institution, foreign bank, and credit union debt 
positions. (A) Except as provided in paragraph (b)(2)(iv)(B) of this 
section, an FDIC-supervised institution must assign a specific risk-
weighting factor to a debt position that is an exposure to a depository 
institution, a foreign bank, or a credit union, in accordance with 
Table 2 to Sec.  324.210 of this section, based on the CRC that 
corresponds to that entity's home country or the OECD membership status 
of that entity's home country if there is no CRC applicable to the 
entity's home country, and, as applicable, the remaining contractual 
maturity of the position.

     Table 2 to Sec.   324.210--Specific Risk-weighting Factors for
  Depository Institution, Foreign Bank, and Credit Union Debt Positions
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                       Specific risk-            Percent
                                       weighting factor
------------------------------------------------------------------------
CRC 0-2 or OECD Member with No CRC  Remaining                       0.25
                                     contractual
                                     maturity of 6
                                     months or less.
                                    Remaining                        1.0
                                     contractual
                                     maturity of greater
                                     than 6 and up to
                                     and including 24
                                     months.
                                    Remaining                        1.6
                                     contractual
                                     maturity exceeds 24
                                     months.
CRC 3.............................  ....................             8.0
CRC 4-7...........................  ....................            12.0
Non-OECD Member with No CRC.......  ....................             8.0
Sovereign Default.................  ....................            12.0
------------------------------------------------------------------------

    (B) An FDIC-supervised institution must assign a specific risk-
weighting factor of 8.0 percent to a debt position that is an exposure 
to a depository institution or a foreign bank that is includable in the 
depository institution's or foreign bank's regulatory capital and that 
is not subject to deduction as a reciprocal holding under Sec.  324.22.
    (C) An FDIC-supervised institution must assign a 12.0 percent 
specific risk-weighting factor to a debt position that is an exposure 
to a foreign bank immediately upon determination that a default by the 
foreign bank's home country has occurred or if a default by the foreign 
bank's home country has occurred within the previous five years.
    (v) PSE debt positions. (A) Except as provided in paragraph 
(b)(2)(v)(B) of this section, an FDIC-supervised institution must 
assign a specific risk-weighting factor to a debt position that is an 
exposure to a PSE in accordance with Tables 3 and 4 to Sec.  324.210 
depending on the position's categorization as a general obligation or 
revenue obligation based on the CRC that corresponds to the PSE's home 
country or the OECD membership status of the PSE's home country if 
there is no CRC applicable to the PSE's home country, and, as 
applicable, the remaining contractual maturity of the position, as set 
forth in Tables 3 and 4 to Sec.  324.210.
    (B) An FDIC-supervised institution may assign a lower specific 
risk-weighting factor than would otherwise apply under Tables 3 and 4 
to Sec.  324.210 to a debt position that is an exposure to a foreign 
PSE if:
    (1) The PSE's home country allows banks under its jurisdiction to 
assign a lower specific risk-weighting factor to such position; and
    (2) The specific risk-weighting factor is not lower than the risk 
weight that corresponds to the PSE's home country in Table 1 to Sec.  
324.210.
    (C) An FDIC-supervised institution must assign a 12.0 percent 
specific risk-weighting factor to a PSE debt position immediately upon 
determination that a default by the PSE's home country has occurred or 
if a default by the PSE's home country has occurred within the previous 
five years.

[[Page 55582]]



   Table 3 to Sec.   324.210--Specific Risk-weighting Factors for PSE
                    General Obligation Debt Positions
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                      General obligation      Percent
                                        specific risk-
                                       weighting factor
------------------------------------------------------------------------
CRC 0-2 or OECD Member with No CRC  Remaining contractual           0.25
                                     maturity of 6 months
                                     or less.
                                    Remaining contractual           1.0
                                     maturity of greater
                                     than 6 and up to and
                                     including 24 months.
                                    Remaining contractual           1.6
                                     maturity exceeds 24
                                     months.
CRC 3.............................  .....................           8.0
CRC 4-7...........................  .....................          12.0
Non-OECD Member with No CRC.......  .....................           8.0
Sovereign Default.................  .....................          12.0
------------------------------------------------------------------------


   Table 4 to Sec.   324.210--Specific Risk-weighting Factors for PSE
                    Revenue Obligation Debt Positions
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                                      Revenue obligation      Percent
                                        specific risk-
                                       weighting factor
------------------------------------------------------------------------
CRC 0-1 or OECD Member with No CRC  Remaining contractual           0.25
                                     maturity of 6 months
                                     or less.
                                    Remaining contractual           1.0
                                     maturity of greater
                                     than 6 and up to and
                                     including 24 months.
                                    Remaining contractual           1.6
                                     maturity exceeds 24
                                     months.
CRC 2-3...........................  .....................           8.0
CRC 4-7...........................  .....................          12.0
Non-OECD Member with No CRC.......  .....................           8.0
Sovereign Default.................  .....................          12.0
------------------------------------------------------------------------

    (vi) Corporate debt positions. Except as otherwise provided in 
paragraph (b)(2)(vi)(B) of this section, an FDIC-supervised institution 
must assign a specific risk-weighting factor to a corporate debt 
position in accordance with the investment grade methodology in 
paragraph (b)(2)(vi)(A) of this section.
    (A) Investment grade methodology. (1) For corporate debt positions 
that are exposures to entities that have issued and outstanding 
publicly traded instruments, an FDIC-supervised institution must assign 
a specific risk-weighting factor based on the category and remaining 
contractual maturity of the position, in accordance with Table 5 to 
Sec.  324.210. For purposes of this paragraph (b)(2)(vi)(A)(1), the 
FDIC-supervised institution must determine whether the position is in 
the investment grade or not investment grade category.

  Table 5 to Sec.   324.210--Specific Risk-weighting Factors for Corporate Debt Positions Under the Investment
                                                Grade Methodology
----------------------------------------------------------------------------------------------------------------
                                                                                         Specific risk-weighting
                    Category                         Remaining contractual maturity        factor (in percent)
----------------------------------------------------------------------------------------------------------------
Investment Grade...............................  6 months or less......................                     0.50
                                                 Greater than 6 and up to and including                     2.00
                                                  24 months.
                                                 Greater than 24 months................                     4.00
Non-investment Grade...........................  ......................................                    12.00
----------------------------------------------------------------------------------------------------------------

    (2) An FDIC-supervised institution must assign an 8.0 percent 
specific risk-weighting factor for corporate debt positions that are 
exposures to entities that do not have publicly traded instruments 
outstanding.
    (B) Limitations. (1) An FDIC-supervised institution must assign a 
specific risk-weighting factor of at least 8.0 percent to an interest-
only mortgage-backed security that is not a securitization position.
    (2) An FDIC-supervised institution shall not assign a corporate 
debt position a specific risk-weighting factor that is lower than the 
specific risk-weighting factor that corresponds to the CRC of the 
issuer's home country, if applicable, in Table 1 to Sec.  324.210.
    (vii) Securitization positions. (A) General requirements. (1) An 
FDIC-supervised institution that is not an advanced approaches FDIC-
supervised institution must assign a specific risk-weighting factor to 
a securitization position using either the simplified supervisory 
formula approach (SSFA) in paragraph (b)(2)(vii)(C) of this section 
(and Sec.  324.211) or assign a specific risk-weighting factor of 100 
percent to the position.
    (2) An FDIC-supervised institution that is an advanced approaches 
FDIC-supervised institution must calculate a specific risk add-on for a 
securitization position in accordance with paragraph (b)(2)(vii)(B) of 
this section if the FDIC-supervised institution and the securitization 
position each qualifies to use the SFA in Sec.  324.143. An FDIC-
supervised institution that is an advanced approaches FDIC-supervised 
institution with a securitization position that does not qualify for 
the SFA under paragraph (b)(2)(vii)(B) of this section may assign a 
specific risk-weighting factor to the securitization position using the 
SSFA in accordance with paragraph (b)(2)(vii)(C) of this section or 
assign a specific risk-weighting factor of 100 percent to the position.
    (3) An FDIC-supervised institution must treat a short 
securitization position as if it is a long securitization position 
solely for calculation purposes when using the SFA in paragraph 
(b)(2)(vii)(B) of this section or the SSFA in paragraph (b)(2)(vii)(C) 
of this section.
    (B) SFA. To calculate the specific risk add-on for a securitization 
position using the SFA, an FDIC-supervised institution that is an 
advanced approaches FDIC-supervised institution

[[Page 55583]]

must set the specific risk add-on for the position equal to the risk-
based capital requirement as calculated under Sec.  324.143.
    (C) SSFA. To use the SSFA to determine the specific risk-weighting 
factor for a securitization position, an FDIC-supervised institution 
must calculate the specific risk-weighting factor in accordance with 
Sec.  324.211.
    (D) N^th-to-default credit derivatives. An FDIC-
supervised institution must determine a specific risk add-on using the 
SFA in paragraph (b)(2)(vii)(B) of this section, or assign a specific 
risk-weighting factor using the SSFA in paragraph (b)(2)(vii)(C) of 
this section to an n^th-to-default credit derivative in 
accordance with this paragraph (b)(2)(vii)(D), regardless of whether 
the FDIC-supervised institution is a net protection buyer or net 
protection seller. An FDIC-supervised institution must determine its 
position in the n^th-to-default credit derivative as the 
largest notional amount of all the underlying exposures.
    (1) For purposes of determining the specific risk add-on using the 
SFA in paragraph (b)(2)(vii)(B) of this section or the specific risk-
weighting factor for an n^th-to-default credit derivative 
using the SSFA in paragraph (b)(2)(vii)(C) of this section the FDIC-
supervised institution must calculate the attachment point and 
detachment point of its position as follows:
    (i) The attachment point (parameter A) is the ratio of the sum of 
the notional amounts of all underlying exposures that are subordinated 
to the FDIC-supervised institution's position to the total notional 
amount of all underlying exposures. For purposes of the SSFA, parameter 
A is expressed as a decimal value between zero and one. For purposes of 
using the SFA in paragraph (b)(2)(vii)(B) of this section to calculate 
the specific add-on for its position in an n^th-to-default 
credit derivative, parameter A must be set equal to the credit 
enhancement level (L) input to the SFA formula in Sec.  324.143. In the 
case of a first-to-default credit derivative, there are no underlying 
exposures that are subordinated to the FDIC-supervised institution's 
position. In the case of a second-or-subsequent-to-default credit 
derivative, the smallest (n-1) notional amounts of the underlying 
exposure(s) are subordinated to the FDIC-supervised institution's 
position.
    (ii) The detachment point (parameter D) equals the sum of parameter 
A plus the ratio of the notional amount of the FDIC-supervised 
institution's position in the n^th-to-default credit 
derivative to the total notional amount of all underlying exposures. 
For purposes of the SSFA, parameter A is expressed as a decimal value 
between zero and one. For purposes of using the SFA in paragraph 
(b)(2)(vii)(B) of this section to calculate the specific risk add-on 
for its position in an n^th-to-default credit derivative, 
parameter D must be set to equal the L input plus the thickness of 
tranche (T) input to the SFA formula in Sec.  324.143.
    (2) An FDIC-supervised institution that does not use the SFA in 
paragraph (b)(2)(vii)(B) of this section to determine a specific risk-
add on, or the SSFA in paragraph (b)(2)(vii)(C) of this section to 
determine a specific risk-weighting factor for its position in an 
n^th-to-default credit derivative must assign a specific 
risk-weighting factor of 100 percent to the position.
    (c) Modeled correlation trading positions. For purposes of 
calculating the comprehensive risk measure for modeled correlation 
trading positions under either paragraph (a)(2)(i) or (a)(2)(ii) of 
Sec.  324.209, the total specific risk add-on is the greater of:
    (1) The sum of the FDIC-supervised institution's specific risk add-
ons for each net long correlation trading position calculated under 
this section; or
    (2) The sum of the FDIC-supervised institution's specific risk add-
ons for each net short correlation trading position calculated under 
this section.
    (d) Non-modeled securitization positions. For securitization 
positions that are not correlation trading positions and for 
securitizations that are correlation trading positions not modeled 
under Sec.  324.209, the total specific risk add-on is the greater of:
    (1) The sum of the FDIC-supervised institution's specific risk add-
ons for each net long securitization position calculated under this 
section; or
    (2) The sum of the FDIC-supervised institution's specific risk add-
ons for each net short securitization position calculated under this 
section.
    (e) Equity positions. The total specific risk add-on for a 
portfolio of equity positions is the sum of the specific risk add-ons 
of the individual equity positions, as computed under this section. To 
determine the specific risk add-on of individual equity positions, an 
FDIC-supervised institution must multiply the absolute value of the 
current fair value of each net long or net short equity position by the 
appropriate specific risk-weighting factor as determined under this 
paragraph:
    (1) The FDIC-supervised institution must multiply the absolute 
value of the current fair value of each net long or net short equity 
position by a specific risk-weighting factor of 8.0 percent. For equity 
positions that are index contracts comprising a well-diversified 
portfolio of equity instruments, the absolute value of the current fair 
value of each net long or net short position is multiplied by a 
specific risk-weighting factor of 2.0 percent.\29\
---------------------------------------------------------------------------

    \29\ A portfolio is well-diversified if it contains a large 
number of individual equity positions, with no single position 
representing a substantial portion of the portfolio's total fair 
value.
---------------------------------------------------------------------------

    (2) For equity positions arising from the following futures-related 
arbitrage strategies, an FDIC-supervised institution may apply a 2.0 
percent specific risk-weighting factor to one side (long or short) of 
each position with the opposite side exempt from an additional capital 
requirement:
    (i) Long and short positions in exactly the same index at different 
dates or in different market centers; or
    (ii) Long and short positions in index contracts at the same date 
in different, but similar indices.
    (3) For futures contracts on main indices that are matched by 
offsetting positions in a basket of stocks comprising the index, an 
FDIC-supervised institution may apply a 2.0 percent specific risk-
weighting factor to the futures and stock basket positions (long and 
short), provided that such trades are deliberately entered into and 
separately controlled, and that the basket of stocks is comprised of 
stocks representing at least 90.0 percent of the capitalization of the 
index.
    (f) Due diligence requirements for securitization positions. (1) An 
FDIC-supervised institution must demonstrate to the satisfaction of the 
FDIC a comprehensive understanding of the features of a securitization 
position that would materially affect the performance of the position 
by conducting and documenting the analysis set forth in paragraph 
(f)(2) of this section. The FDIC-supervised institution's analysis must 
be commensurate with the complexity of the securitization position and 
the materiality of the position in relation to capital.
    (2) An FDIC-supervised institution must demonstrate its 
comprehensive understanding for each securitization position by:
    (i) Conducting an analysis of the risk characteristics of a 
securitization position prior to acquiring the position and document 
such analysis within three business days after acquiring position, 
considering:
    (A) Structural features of the securitization that would materially 
impact the performance of the position, for example, the contractual 
cash flow waterfall, waterfall-related triggers,

[[Page 55584]]

credit enhancements, liquidity enhancements, fair value triggers, the 
performance of organizations that service the position, and deal-
specific definitions of default;
    (B) Relevant information regarding the performance of the 
underlying credit exposure(s), for example, the percentage of loans 30, 
60, and 90 days past due; default rates; prepayment rates; loans in 
foreclosure; property types; occupancy; average credit score or other 
measures of creditworthiness; average loan-to-value ratio; and industry 
and geographic diversification data on the underlying exposure(s);
    (C) Relevant market data of the securitization, for example, bid-
ask spreads, most recent sales price and historical price volatility, 
trading volume, implied market rating, and size, depth and 
concentration level of the market for the securitization; and
    (D) For resecuritization positions, performance information on the 
underlying securitization exposures, for example, the issuer name and 
credit quality, and the characteristics and performance of the 
exposures underlying the securitization exposures.
    (ii) On an on-going basis (no less frequently than quarterly), 
evaluating, reviewing, and updating as appropriate the analysis 
required under paragraph (f)(1) of this section for each securitization 
position.


Sec.  324.211  Simplified supervisory formula approach (SSFA).

    (a) General requirements. To use the SSFA to determine the specific 
risk-weighting factor for a securitization position, an FDIC-supervised 
institution must have data that enables it to assign accurately the 
parameters described in paragraph (b) of this section. Data used to 
assign the parameters described in paragraph (b) of this section must 
be the most currently available data; if the contracts governing the 
underlying exposures of the securitization require payments on a 
monthly or quarterly basis, the data used to assign the parameters 
described in paragraph (b) of this section must be no more than 91 
calendar days old. An FDIC-supervised institution that does not have 
the appropriate data to assign the parameters described in paragraph 
(b) of this section must assign a specific risk-weighting factor of 100 
percent to the position.
    (b) SSFA parameters. To calculate the specific risk-weighting 
factor for a securitization position using the SSFA, an FDIC-supervised 
institution must have accurate information on the five inputs to the 
SSFA calculation described in paragraphs (b)(1) through (b)(5) of this 
section.
    (1) KG is the weighted-average (with unpaid principal 
used as the weight for each exposure) total capital requirement of the 
underlying exposures calculated using subpart D. KG is 
expressed as a decimal value between zero and one (that is, an average 
risk weight of 100 percent represents a value of KG equal to 
0.08).
    (2) Parameter W is expressed as a decimal value between zero and 
one. Parameter W is the ratio of the sum of the dollar amounts of any 
underlying exposures of the securitization that meet any of the 
criteria as set forth in paragraphs (b)(2)(i) through (vi) of this 
section to the balance, measured in dollars, of underlying exposures:
    (i) Ninety days or more past due;
    (ii) Subject to a bankruptcy or insolvency proceeding;
    (iii) In the process of foreclosure;
    (iv) Held as real estate owned;
    (v) Has contractually deferred payments for 90 days or more, other 
than principal or interest payments deferred on:
    (A) Federally-guaranteed student loans, in accordance with the 
terms of those guarantee programs; or
    (B) Consumer loans, including non-federally-guaranteed student 
loans, provided that such payments are deferred pursuant to provisions 
included in the contract at the time funds are disbursed that provide 
for period(s) of deferral that are not initiated based on changes in 
the creditworthiness of the borrower; or
    (vi) Is in default.
    (3) Parameter A is the attachment point for the position, which 
represents the threshold at which credit losses will first be allocated 
to the position. Except as provided in Sec.  324.210(b)(2)(vii)(D) for 
n^th-to-default credit derivatives, parameter A equals the 
ratio of the current dollar amount of underlying exposures that are 
subordinated to the position of the FDIC-supervised institution to the 
current dollar amount of underlying exposures. Any reserve account 
funded by the accumulated cash flows from the underlying exposures that 
is subordinated to the position that contains the FDIC-supervised 
institution's securitization exposure may be included in the 
calculation of parameter A to the extent that cash is present in the 
account. Parameter A is expressed as a decimal value between zero and 
one.
    (4) Parameter D is the detachment point for the position, which 
represents the threshold at which credit losses of principal allocated 
to the position would result in a total loss of principal. Except as 
provided in Sec.  324.210(b)(2)(vii)(D) for n^th-to-default 
credit derivatives, parameter D equals parameter A plus the ratio of 
the current dollar amount of the securitization positions that are pari 
passu with the position (that is, have equal seniority with respect to 
credit risk) to the current dollar amount of the underlying exposures. 
Parameter D is expressed as a decimal value between zero and one.
    (5) A supervisory calibration parameter, p, is equal to 0.5 for 
securitization positions that are not resecuritization positions and 
equal to 1.5 for resecuritization positions.
    (c) Mechanics of the SSFA. KG and W are used to 
calculate KA, the augmented value of KG, which 
reflects the observed credit quality of the underlying exposures. 
KA is defined in paragraph (d) of this section. The values 
of parameters A and D, relative to KA determine the specific 
risk-weighting factor assigned to a position as described in this 
paragraph and paragraph (d) of this section. The specific risk-
weighting factor assigned to a securitization position, or portion of a 
position, as appropriate, is the larger of the specific risk-weighting 
factor determined in accordance with this paragraph, paragraph (d) of 
this section, and a specific risk-weighting factor of 1.6 percent.
    (1) When the detachment point, parameter D, for a securitization 
position is less than or equal to KA, the position must be 
assigned a specific risk-weighting factor of 100 percent.
    (2) When the attachment point, parameter A, for a securitization 
position is greater than or equal to KA, the FDIC-supervised 
institution must calculate the specific risk-weighting factor in 
accordance with paragraph (d) of this section.
    (3) When A is less than KA and D is greater than 
KA, the specific risk-weighting factor is a weighted-average 
of 1.00 and KSSFA calculated under paragraphs (c)(3)(i) and 
(c)(3)(ii) of this section. For the purpose of this calculation:

[[Page 55585]]

[GRAPHIC] [TIFF OMITTED] TR10SE13.046

Sec.  324.212  Market risk disclosures.

    (a) Scope. An FDIC-supervised institution must comply with this 
section unless it is a consolidated subsidiary of a bank holding 
company or a depository institution that is subject to these 
requirements or of a non-U.S. banking organization that is subject to 
comparable public disclosure requirements in its home jurisdiction. An 
FDIC-supervised institution must make timely public disclosures each 
calendar quarter. If a significant change occurs, such that the most 
recent reporting amounts are no longer reflective of the FDIC-
supervised institution's capital adequacy and risk profile, then a 
brief discussion of this change and its likely impact must be provided 
as soon as practicable thereafter. Qualitative disclosures that 
typically do not change each quarter may be disclosed annually, 
provided any significant changes are disclosed in the interim. If an 
FDIC-supervised institution believes that disclosure of specific 
commercial or financial information would prejudice seriously its 
position by making public certain information that is either 
proprietary or confidential in nature, the FDIC-supervised institution 
is not required to disclose these specific items, but must disclose 
more general information about the subject matter of the requirement, 
together with the fact that, and the reason why, the specific items of 
information have not been disclosed. The FDIC-supervised institution's

[[Page 55586]]

management may provide all of the disclosures required by this section 
in one place on the FDIC-supervised institution's public Web site or 
may provide the disclosures in more than one public financial report or 
other regulatory reports, provided that the FDIC-supervised institution 
publicly provides a summary table specifically indicating the 
location(s) of all such disclosures.
    (b) Disclosure policy. The FDIC-supervised institution must have a 
formal disclosure policy approved by the board of directors that 
addresses the FDIC-supervised institution's approach for determining 
its market risk disclosures. The policy must address the associated 
internal controls and disclosure controls and procedures. The board of 
directors and senior management must ensure that appropriate 
verification of the disclosures takes place and that effective internal 
controls and disclosure controls and procedures are maintained. One or 
more senior officers of the FDIC-supervised institution must attest 
that the disclosures meet the requirements of this subpart, and the 
board of directors and senior management are responsible for 
establishing and maintaining an effective internal control structure 
over financial reporting, including the disclosures required by this 
section.
    (c) Quantitative disclosures. (1) For each material portfolio of 
covered positions, the FDIC-supervised institution must provide timely 
public disclosures of the following information at least quarterly:
    (i) The high, low, and mean VaR-based measures over the reporting 
period and the VaR-based measure at period-end;
    (ii) The high, low, and mean stressed VaR-based measures over the 
reporting period and the stressed VaR-based measure at period-end;
    (iii) The high, low, and mean incremental risk capital requirements 
over the reporting period and the incremental risk capital requirement 
at period-end;
    (iv) The high, low, and mean comprehensive risk capital 
requirements over the reporting period and the comprehensive risk 
capital requirement at period-end, with the period-end requirement 
broken down into appropriate risk classifications (for example, default 
risk, migration risk, correlation risk);
    (v) Separate measures for interest rate risk, credit spread risk, 
equity price risk, foreign exchange risk, and commodity price risk used 
to calculate the VaR-based measure; and
    (vi) A comparison of VaR-based estimates with actual gains or 
losses experienced by the FDIC-supervised institution, with an analysis 
of important outliers.
    (2) In addition, the FDIC-supervised institution must disclose 
publicly the following information at least quarterly:
    (i) The aggregate amount of on-balance sheet and off-balance sheet 
securitization positions by exposure type; and
    (ii) The aggregate amount of correlation trading positions.
    (d) Qualitative disclosures. For each material portfolio of covered 
positions, the FDIC-supervised institution must provide timely public 
disclosures of the following information at least annually after the 
end of the fourth calendar quarter, or more frequently in the event of 
material changes for each portfolio:
    (1) The composition of material portfolios of covered positions;
    (2) The FDIC-supervised institution's valuation policies, 
procedures, and methodologies for covered positions including, for 
securitization positions, the methods and key assumptions used for 
valuing such positions, any significant changes since the last 
reporting period, and the impact of such change;
    (3) The characteristics of the internal models used for purposes of 
this subpart. For the incremental risk capital requirement and the 
comprehensive risk capital requirement, this must include:
    (i) The approach used by the FDIC-supervised institution to 
determine liquidity horizons;
    (ii) The methodologies used to achieve a capital assessment that is 
consistent with the required soundness standard; and
    (iii) The specific approaches used in the validation of these 
models;
    (4) A description of the approaches used for validating and 
evaluating the accuracy of internal models and modeling processes for 
purposes of this subpart;
    (5) For each market risk category (that is, interest rate risk, 
credit spread risk, equity price risk, foreign exchange risk, and 
commodity price risk), a description of the stress tests applied to the 
positions subject to the factor;
    (6) The results of the comparison of the FDIC-supervised 
institution's internal estimates for purposes of this subpart with 
actual outcomes during a sample period not used in model development;
    (7) The soundness standard on which the FDIC-supervised 
institution's internal capital adequacy assessment under this subpart 
is based, including a description of the methodologies used to achieve 
a capital adequacy assessment that is consistent with the soundness 
standard;
    (8) A description of the FDIC-supervised institution's processes 
for monitoring changes in the credit and market risk of securitization 
positions, including how those processes differ for resecuritization 
positions; and
    (9) A description of the FDIC-supervised institution's policy 
governing the use of credit risk mitigation to mitigate the risks of 
securitization and resecuritization positions.


Sec. Sec.  324.213 through 324.299  [Reserved]

Subpart G--Transition Provisions


Sec.  324.300  Transitions.

    (a) Capital conservation and countercyclical capital buffer. (1) 
From January 1, 2014, through December 31, 2015, an FDIC-supervised 
institution is not subject to limits on distributions and discretionary 
bonus payments under Sec.  324.11 notwithstanding the amount of its 
capital conservation buffer or any applicable countercyclical capital 
buffer amount.
    (2) Beginning January 1, 2016, through December 31, 2018, an FDIC-
supervised institution's maximum payout ratio shall be determined as 
set forth in Table 1 to Sec.  324.300.

                                            Table 1 to Sec.   324.300
----------------------------------------------------------------------------------------------------------------
                                                                                      Maximum payout ratio (as a
            Transition period                     Capital conservation buffer           percentage of eligible
                                                                                           retained income)
----------------------------------------------------------------------------------------------------------------
Calendar year 2016......................  Greater than 0.625 percent (plus 25         No payout ratio limitation
                                           percent of any applicable countercyclical   applies under this
                                           capital buffer amount).                     section.

[[Page 55587]]

 
                                          Less than or equal to 0.625 percent (plus   60 percent.
                                           25 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.469 percent (plus
                                           17.25 percent of any applicable
                                           countercyclical capital buffer amount).
                                          Less than or equal to 0.469 percent (plus   40 percent.
                                           17.25 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.313 percent (plus 12.5
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.313 percent (plus   20 percent.
                                           12.5 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.156 percent (plus 6.25
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.156 percent (plus   0 percent.
                                           6.25 percent of any applicable
                                           countercyclical capital buffer amount).
Calendar year 2017......................  Greater than 1.25 percent (plus 50 percent  No payout ratio limitation
                                           of any applicable countercyclical capital   applies under this
                                           buffer amount).                             section.
                                          Less than or equal to 1.25 percent (plus    60 percent.
                                           50 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.938 percent (plus 37.5
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.938 percent (plus   40 percent.
                                           37.5 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.625 percent (plus 25
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.625 percent (plus   20 percent.
                                           25 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.313 percent (plus 12.5
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.313 percent (plus   0 percent.
                                           12.5 percent of any applicable
                                           countercyclical capital buffer amount).
Calendar year 2018......................  Greater than 1.875 percent (plus 75         No payout ratio limitation
                                           percent of any applicable countercyclical   applies under this
                                           capital buffer amount).                     section.
                                          Less than or equal to 1.875 percent (plus   60 percent.
                                           75 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 1.406 percent (plus
                                           56.25 percent of any applicable
                                           countercyclical capital buffer amount).
                                          Less than or equal to 1.406 percent (plus   40 percent.
                                           56.25 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.938 percent (plus 37.5
                                           percent of any applicable countercyclical
                                           capital buffer amount).
                                          Less than or equal to 0.938 percent (plus   20 percent.
                                           37.5 percent of any applicable
                                           countercyclical capital buffer amount),
                                           and greater than 0.469 percent (plus
                                           18.75 percent of any applicable
                                           countercyclical capital buffer amount).
                                          Less than or equal to 0.469 percent (plus   0 percent.
                                           18.75 percent of any applicable
                                           countercyclical capital buffer amount).
----------------------------------------------------------------------------------------------------------------

    (b) Regulatory capital adjustments and deductions. Beginning 
January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution, and in each case through December 31, 2017, an FDIC-
supervised institution must make the capital adjustments and deductions 
in Sec.  324.22 in accordance with the transition requirements in this 
paragraph (b). Beginning January 1, 2018, an FDIC-supervised 
institution must make all regulatory capital adjustments and deductions 
in accordance with Sec.  324.22.
    (1) Transition deductions from common equity tier 1 capital. 
Beginning January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution, and in each case through December 31, 2017, an FDIC-
supervised institution, must make the deductions required under Sec.  
324.22(a)(1)--(7) from common equity tier 1 or tier 1 capital elements 
in accordance with the percentages set forth in Tables 2 and 3 to Sec.  
324.300.
    (i) An FDIC-supervised institution must deduct the following items 
from common equity tier 1 and additional tier 1 capital in accordance 
with the percentages set forth in Table 2 to Sec.  324.300: Goodwill 
(Sec.  324.22(a)(1)), DTAs that arise from net operating loss and tax 
credit carryforwards (Sec.  324.22(a)(3)), a gain-on-sale in connection 
with a securitization exposure (Sec.  324.22(a)(4)), defined benefit 
pension fund assets (Sec.  324.22(a)(5)), expected credit loss that 
exceeds eligible credit reserves (for advanced approaches FDIC-
supervised institutions that have completed the parallel run process 
and that have received notifications from the FDIC pursuant to Sec.  
324.121(d) of subpart E) (Sec.  324.22(a)(6)), and financial 
subsidiaries (Sec.  324.22(a)(7)).

[[Page 55588]]



                                            Table 2 to Sec.   324.300
----------------------------------------------------------------------------------------------------------------
                                             Transition deductions        Transition deductions under Sec.
                                                   under Sec.                     324.22(a)(3)-(6)
                                             324.22(a)(1), (a)(7), ---------------------------------------------
                                               (a)(8), and (a)(9)
             Transition period              -----------------------   Percentage of the
                                               Percentage of the       deductions from       Percentage of the
                                                deductions from      common equity tier 1   deductions from tier
                                              common equity tier 1         capital               1 capital
                                                    capital
----------------------------------------------------------------------------------------------------------------
Calendar year 2014.........................                   100                     20                     80
Calendar year 2015.........................                   100                     40                     60
Calendar year 2016.........................                   100                     60                     40
Calendar year 2017.........................                   100                     80                     20
Calendar year 2018, and thereafter.........                   100                    100                      0
----------------------------------------------------------------------------------------------------------------

    (ii) An FDIC-supervised institution must deduct from common equity 
tier 1 capital any intangible assets other than goodwill and MSAs in 
accordance with the percentages set forth in Table 3 to Sec.  324.300.
    (iii) An FDIC-supervised institution must apply a 100 percent risk-
weight to the aggregate amount of intangible assets other than goodwill 
and MSAs that are not required to be deducted from common equity tier 1 
capital under this section.

                        Table 3 to Sec.   324.300
------------------------------------------------------------------------
                                   Transition deductions under Sec.
      Transition period       324.22(a)(2)--Percentage of the deductions
                                   from common equity tier 1 capital
------------------------------------------------------------------------
Calendar year 2014..........                                         20
Calendar year 2015..........                                         40
Calendar year 2016..........                                         60
Calendar year 2017..........                                         80
Calendar year 2018, and                                             100
 thereafter.................
------------------------------------------------------------------------

    (2) Transition adjustments to common equity tier 1 capital. 
Beginning January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution, and in each case through December 31, 2017, an FDIC-
supervised institution, must allocate the regulatory adjustments 
related to changes in the fair value of liabilities due to changes in 
the FDIC-supervised institution's own credit risk (Sec.  
324.22(b)(1)(iii)) between common equity tier 1 capital and tier 1 
capital in accordance with the percentages set forth in Table 4 to 
Sec.  324.300.
    (i) If the aggregate amount of the adjustment is positive, the 
FDIC-supervised institution must allocate the deduction between common 
equity tier 1 and tier 1 capital in accordance with Table 4 to Sec.  
324.300.
    (ii) If the aggregate amount of the adjustment is negative, the 
FDIC-supervised institution must add back the adjustment to common 
equity tier 1 capital or to tier 1 capital, in accordance with Table 4 
to Sec.  324.300.

                                                                Table 4 to Sec.   324.300
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Transition adjustments under Sec.   324.22(b)(2)
                                                                   -------------------------------------------------------------------------------------
                         Transition period                           Percentage of the adjustment applied to    Percentage of the adjustment applied to
                                                                           common equity tier 1 capital                      tier 1 capital
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar year 2014................................................                                        20                                         80
Calendar year 2015................................................                                        40                                         60
Calendar year 2016................................................                                        60                                         40
Calendar year 2017................................................                                        80                                         20
Calendar year 2018, and thereafter................................                                       100                                          0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (3) Transition adjustments to AOCI for an advanced approaches FDIC-
supervised institution and an FDIC-supervised institution that has not 
made an AOCI opt-out election under Sec.  324.22(b)(2). Beginning 
January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution and that has not made an AOCI opt-out election under Sec.  
324.22(b)(2), and in each case through December 31, 2017, an FDIC-
supervised institution must adjust common equity tier 1 capital with 
respect to the transition AOCI adjustment amount (transition AOCI 
adjustment amount):
    (i) The transition AOCI adjustment amount is the aggregate amount 
of an FDIC-supervised institution's:
    (A) Unrealized gains on available-for-sale securities that are 
preferred stock classified as an equity security under

[[Page 55589]]

GAAP or available-for-sale equity exposures, plus
    (B) Net unrealized gains or losses on available-for-sale securities 
that are not preferred stock classified as an equity security under 
GAAP or available-for-sale equity exposures, plus
    (C) Any amounts recorded in AOCI attributed to defined benefit 
postretirement plans resulting from the initial and subsequent 
application of the relevant GAAP standards that pertain to such plans 
(excluding, at the FDIC-supervised institution's option, the portion 
relating to pension assets deducted under Sec.  324.22(a)(5)), plus
    (D) Accumulated net gains or losses on cash flow hedges related to 
items that are reported on the balance sheet at fair value included in 
AOCI, plus
    (E) Net unrealized gains or losses on held-to-maturity securities 
that are included in AOCI.
    (ii) An FDIC-supervised institution must make the following 
adjustment to its common equity tier 1 capital:
    (A) If the transition AOCI adjustment amount is positive, the 
appropriate amount must be deducted from common equity tier 1 capital 
in accordance with Table 5 to Sec.  324.300.
    (B) If the transition AOCI adjustment amount is negative, the 
appropriate amount must be added back to common equity tier 1 capital 
in accordance with Table 5 to Sec.  324.300.

                        Table 5 to Sec.   324.300
------------------------------------------------------------------------
                                   Percentage of the transition AOCI
      Transition period        adjustment amount to be applied to common
                                         equity tier 1 capital
------------------------------------------------------------------------
Calendar year 2014..........                                         80
Calendar year 2015..........                                         60
Calendar year 2016..........                                         40
Calendar year 2017..........                                         20
Calendar year 2018 and                                                0
 thereafter.................
------------------------------------------------------------------------

    (iii) An FDIC-supervised institution may include in tier 2 capital 
the percentage of unrealized gains on available-for-sale preferred 
stock classified as an equity security under GAAP and available-for-
sale equity exposures as set forth in Table 6 to Sec.  324.300.

                        Table 6 to Sec.   324.300
------------------------------------------------------------------------
                                   Percentage of unrealized gains on
                                  available-for-sale preferred stock
                                classified as an equity security under
      Transition period           GAAP and available-for-sale equity
                               exposures that may be included in tier 2
                                                capital
------------------------------------------------------------------------
Calendar year 2014..........                                         36
Calendar year 2015..........                                         27
Calendar year 2016..........                                         18
Calendar year 2017..........                                          9
Calendar year 2018 and                                                0
 thereafter.................
------------------------------------------------------------------------

    (4) Additional transition deductions from regulatory capital. (i) 
Beginning January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution, and in each case through December 31, 2017, an FDIC-
supervised institution must use Table 7 to Sec.  324.300 to determine 
the amount of investments in capital instruments and the items subject 
to the 10 and 15 percent common equity tier 1 capital deduction 
thresholds (Sec.  324.22(d)) (that is, MSAs, DTAs arising from 
temporary differences that the FDIC-supervised institution could not 
realize through net operating loss carrybacks, and significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock) that must be deducted from common equity tier 
1 capital.
    (ii) Beginning January 1, 2014, for an advanced approaches FDIC-
supervised institution, and beginning January 1, 2015, for an FDIC-
supervised institution that is not an advanced approaches FDIC-
supervised institution, and in each case through December 31, 2017, an 
FDIC-supervised institution must apply a 100 percent risk-weight to the 
aggregate amount of the items subject to the 10 and 15 percent common 
equity tier 1 capital deduction thresholds that are not deducted under 
this section. As set forth in Sec.  324.22(d)(2), beginning January 1, 
2018, an FDIC-supervised institution must apply a 250 percent risk-
weight to the aggregate amount of the items subject to the 10 and 15 
percent common equity tier 1 capital deduction thresholds that are not 
deducted from common equity tier 1 capital.

                        Table 7 to Sec.   324.300
------------------------------------------------------------------------
                                 Transitions for deductions under Sec.
                                   324.22(c) and (d)--Percentage of
      Transition period          additional deductions from regulatory
                                                capital
------------------------------------------------------------------------
Calendar year 2014..........                                         20
Calendar year 2015..........                                         40
Calendar year 2016..........                                         60

[[Page 55590]]

 
Calendar year 2017..........                                         80
Calendar year 2018 and                                              100
 thereafter.................
------------------------------------------------------------------------

    (iii) For purposes of calculating the transition deductions in this 
paragraph (b)(4), beginning January 1, 2014, for an advanced approaches 
FDIC-supervised institution, and beginning January 1, 2015, for an 
FDIC-supervised institution that is not an advanced approaches FDIC-
supervised institution, and in each case through December 31, 2017, an 
FDIC-supervised institution's 15 percent common equity tier 1 capital 
deduction threshold for MSAs, DTAs arising from temporary differences 
that the FDIC-supervised institution could not realize through net 
operating loss carrybacks, and significant investments in the capital 
of unconsolidated financial institutions in the form of common stock is 
equal to 15 percent of the sum of the FDIC-supervised institution's 
common equity tier 1 elements, after regulatory adjustments and 
deductions required under Sec.  324.22(a) through (c) (transition 15 
percent common equity tier 1 capital deduction threshold).
    (iv) Beginning January 1, 2018, an FDIC-supervised institution must 
calculate the 15 percent common equity tier 1 capital deduction 
threshold in accordance with Sec.  324.22(d).
    (c) Non-qualifying capital instruments. Depository institutions. 
(1) Beginning on January 1, 2014, a depository institution that is an 
advanced approaches FDIC-supervised institution, and beginning on 
January 1, 2015, all other depository institutions may include in 
regulatory capital debt or equity instruments issued prior to September 
12, 2010, that do not meet the criteria for additional tier 1 or tier 2 
capital instruments in Sec.  324.20 but that were included in tier 1 or 
tier 2 capital respectively as of September 12, 2010 (non-qualifying 
capital instruments issued prior to September 12, 2010) up to the 
percentage of the outstanding principal amount of such non-qualifying 
capital instruments as of January 1, 2014 in accordance with Table 8 to 
Sec.  324.300.
    (2) Table 8 to Sec.  324.300 applies separately to tier 1 and tier 
2 non-qualifying capital instruments.
    (3) The amount of non-qualifying capital instruments that cannot be 
included in additional tier 1 capital under this section may be 
included in tier 2 capital without limitation, provided that the 
instruments meet the criteria for tier 2 capital instruments under 
Sec.  324.20(d).

                        Table 8 to Sec.   324.300
------------------------------------------------------------------------
                                 Percentage of non-qualifying capital
 Transition period (calendar   instruments includable in additional tier
            year)                         1 or tier 2 capital
------------------------------------------------------------------------
Calendar year 2014..........                                         80
Calendar year 2015..........                                         70
Calendar year 2016..........                                         60
Calendar year 2017..........                                         50
Calendar year 2018..........                                         40
Calendar year 2019..........                                         30
Calendar year 2020..........                                         20
Calendar year 2021..........                                         10
Calendar year 2022 and                                                0
 thereafter.................
------------------------------------------------------------------------

    (d) Minority interest--(1) Surplus minority interest. Beginning 
January 1, 2014, for an advanced approaches FDIC-supervised 
institution, and beginning January 1, 2015, for an FDIC-supervised 
institution that is not an advanced approaches FDIC-supervised 
institution, and in each case through December 31, 2017, an FDIC-
supervised institution may include in common equity tier 1 capital, 
tier 1 capital, or total capital the percentage of the common equity 
tier 1 minority interest, tier 1 minority interest and total capital 
minority interest outstanding as of January 1, 2014 that exceeds any 
common equity tier 1 minority interest, tier 1 minority interest or 
total capital minority interest includable under Sec.  324.21 (surplus 
minority interest), respectively, as set forth in Table 9 to Sec.  
324.300.
    (2) Non-qualifying minority interest. Beginning January 1, 2014, 
for an advanced approaches FDIC-supervised institution, and beginning 
January 1, 2015, for an FDIC-supervised institution that is not an 
advanced approaches FDIC-supervised institution, and in each case 
through December 31, 2017, an FDIC-supervised institution may include 
in tier 1 capital or total capital the percentage of the tier 1 
minority interest and total capital minority interest outstanding as of 
January 1, 2014 that does not meet the criteria for additional tier 1 
or tier 2 capital instruments in Sec.  324.20 (non-qualifying minority 
interest), as set forth in Table 9 to Sec.  324.300.

                        Table 9 to Sec.   324.300
------------------------------------------------------------------------
                              Percentage of the amount of surplus or non-
                               qualifying minority interest that can be
      Transition period        included in regulatory capital during the
                                           transition period
------------------------------------------------------------------------
Calendar year 2014..........                                         80

[[Page 55591]]

 
Calendar year 2015..........                                         60
Calendar year 2016..........                                         40
Calendar year 2017..........                                         20
Calendar year 2018 and                                                0
 thereafter.................
------------------------------------------------------------------------

    (e) Prompt corrective action. For purposes of subpart H of this 
part, an FDIC-supervised institution must calculate its capital 
measures and tangible equity ratio in accordance with the transition 
provisions in this section.


Sec. Sec.  324.301 through 324.399  [Reserved]

Subpart H--Prompt Corrective Action


Sec.  324.401  Authority, purpose, scope, other supervisory authority, 
disclosure of capital categories, and transition procedures.

    (a) Authority. This subpart H is issued by the FDIC pursuant to 
section 38 of the Federal Deposit Insurance Act (FDI Act), as added by 
section 131 of the Federal Deposit Insurance Corporation Improvement 
Act of 1991 (Pub.L. 102-242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o).
    (b) Purpose. Section 38 of the FDI Act establishes a framework of 
supervisory actions for insured depository institutions that are not 
adequately capitalized. The principal purpose of this subpart is to 
define, for FDIC-supervised institutions, the capital measures and 
capital levels, and for insured branches of foreign banks, comparable 
asset-based measures and levels, that are used for determining the 
supervisory actions authorized under section 38 of the FDI Act. This 
subpart also establishes procedures for submission and review of 
capital restoration plans and for issuance and review of directives and 
orders pursuant to section 38 of the FDI Act.
    (c) Scope. Until January 1, 2015, subpart B of part 325 of this 
chapter will continue to apply to banks and insured branches of foreign 
banks for which the FDIC is the appropriate Federal banking agency. 
Until January 1, 2015, subpart Y of part 390 of this chapter will 
continue to apply to state savings associations. Beginning on, and 
thereafter, January 1, 2015, this subpart H implements the provisions 
of section 38 of the FDI Act as they apply to FDIC-supervised 
institutions and insured branches of foreign banks for which the FDIC 
is the appropriate Federal banking agency. Certain of these provisions 
also apply to officers, directors and employees of those insured 
institutions. In addition, certain provisions of this subpart apply to 
all insured depository institutions that are deemed critically 
undercapitalized.
    (d) Other supervisory authority. Neither section 38 of the FDI Act 
nor this subpart H in any way limits the authority of the FDIC under 
any other provision of law to take supervisory actions to address 
unsafe or unsound practices, deficient capital levels, violations of 
law, unsafe or unsound conditions, or other practices. Action under 
section 38 of the FDI Act and this subpart H may be taken independently 
of, in conjunction with, or in addition to any other enforcement action 
available to the FDIC, including issuance of cease and desist orders, 
capital directives, approval or denial of applications or notices, 
assessment of civil money penalties, or any other actions authorized by 
law.
    (e) Disclosure of capital categories. The assignment of an FDIC-
supervised institution or an insured branch of a foreign bank for which 
the FDIC is the appropriate Federal banking agency under this subpart H 
within a particular capital category is for purposes of implementing 
and applying the provisions of section 38 of the FDI Act. Unless 
permitted by the FDIC or otherwise required by law, no FDIC-supervised 
institution or insured branch of a foreign bank for which the FDIC is 
the appropriate Federal banking agency may state in any advertisement 
or promotional material its capital category under this subpart H or 
that the FDIC or any other Federal banking agency has assigned it to a 
particular capital category.
    (f) Transition procedures--(1) Definitions applicable before 
January 1, 2015, for certain FDIC-supervised institutions. Before 
January 1, 2015, notwithstanding any other requirement in this subpart 
H and with respect to any FDIC-supervised institution that is not an 
advanced approaches FDIC-supervised institution:
    (i) The definitions of leverage ratio, tangible equity, tier 1 
capital, tier 1 risk-based capital, and total risk-based capital as 
calculated or defined under Appendix A to part 325 or Appendix B to 
part 325, as applicable, remain in effect for purposes of this subpart 
H; and
    (ii) The term total assets shall have the meaning provided in 12 
CFR 325.2(x).
    (2) Timing. The calculation of the definitions of common equity 
tier 1 capital, the common equity tier 1 risk-based capital ratio, the 
leverage ratio, the supplementary leverage ratio, tangible equity, tier 
1 capital, the tier 1 risk-based capital ratio, total assets, total 
leverage exposure, the total risk-based capital ratio, and total risk-
weighted assets under this subpart H is subject to the timing 
provisions at 12 CFR 324.1(f) and the transitions at 12 CFR part 324, 
subpart G.
    (g) For purposes of subpart H, as of January 1, 2015, total assets 
means quarterly average total assets as reported in an FDIC-supervised 
institution's Call Report, minus amounts deducted from tier 1 capital 
under Sec.  324.22(a), (c), and (d). At its discretion, the FDIC may 
calculate total assets using an FDIC-supervised institution's period-
end assets rather than quarterly average assets.


Sec.  324.402  Notice of capital category.

    (a) Effective date of determination of capital category. An FDIC-
supervised institution shall be deemed to be within a given capital 
category for purposes of section 38 of the FDI Act and this subpart H 
as of the date the FDIC-supervised institution is notified of, or is 
deemed to have notice of, its capital category, pursuant to paragraph 
(b) of this section.
    (b) Notice of capital category. An FDIC-supervised institution 
shall be deemed to have been notified of its capital levels and its 
capital category as of the most recent date:
    (1) A Call Report is required to be filed with the FDIC;
    (2) A final report of examination is delivered to the FDIC-
supervised institution; or
    (3) Written notice is provided by the FDIC to the FDIC-supervised 
institution of its capital category for purposes of

[[Page 55592]]

section 38 of the FDI Act and this subpart or that the FDIC-supervised 
institution's capital category has changed as provided in Sec.  
324.403(d).
    (c) Adjustments to reported capital levels and capital category -- 
(1) Notice of adjustment by bank or state savings association. An FDIC-
supervised institution shall provide the appropriate FDIC regional 
director with written notice that an adjustment to the FDIC-supervised 
institution's capital category may have occurred no later than 15 
calendar days following the date that any material event has occurred 
that would cause the FDIC-supervised institution to be placed in a 
lower capital category from the category assigned to the FDIC-
supervised institution for purposes of section 38 of the FDI Act and 
this subpart H on the basis of the FDIC-supervised institution's most 
recent Call Report or report of examination.
    (2) Determination by the FDIC to change capital category. After 
receiving notice pursuant to paragraph (c)(1) of this section, the FDIC 
shall determine whether to change the capital category of the FDIC-
supervised institution and shall notify the bank or state savings 
association of the FDIC's determination.


Sec.  324.403  Capital measures and capital category definitions.

    (a) Capital measures. For purposes of section 38 of the FDI Act and 
this subpart H, the relevant capital measures shall be:
    (1) The total risk-based capital ratio;
    (2) The Tier 1 risk-based capital ratio; and
    (3) The common equity tier 1 ratio;
    (4) The leverage ratio;
    (5) The tangible equity to total assets ratio; and
    (6) Beginning January 1, 2018, the supplementary leverage ratio 
calculated in accordance with Sec.  324.11 for advanced approaches 
FDIC-supervised institutions that are subject to subpart E of this 
part.
    (b) Capital categories. For purposes of section 38 of the FDI Act 
and this subpart, an FDIC-supervised institution shall be deemed to be:
    (1) ``Well capitalized'' if it:
    (i) Has a total risk-based capital ratio of 10.0 percent or 
greater; and
    (ii) Has a Tier 1 risk-based capital ratio of 8.0 percent or 
greater; and
    (iii) Has a common equity tier 1 capital ratio of 6.5 percent or 
greater; and
    (iv) Has a leverage ratio of 5.0 percent or greater; and
    (v) Is not subject to any written agreement, order, capital 
directive, or prompt corrective action directive issued by the FDIC 
pursuant to section 8 of the FDI Act (12 U.S.C. 1818), the 
International Lending Supervision Act of 1983 (12 U.S.C. 3907), or the 
Home Owners' Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)), or section 38 of 
the FDI Act (12 U.S.C. 1831o), or any regulation thereunder, to meet 
and maintain a specific capital level for any capital measure.
    (2) ``Adequately capitalized'' if it:
    (i) Has a total risk-based capital ratio of 8.0 percent or greater; 
and
    (ii) Has a Tier 1 risk-based capital ratio of 6.0 percent or 
greater; and
    (iii) Has a common equity tier 1 capital ratio of 4.5 percent or 
greater; and
    (iv) Has a leverage ratio of 4.0 percent or greater; and
    (v) Does not meet the definition of a well capitalized bank.
    (vi) Beginning January 1, 2018, an advanced approaches FDIC-
supervised institution will be deemed to be ``adequately capitalized'' 
if it satisfies paragraphs (b)(2)(i) through (v) of this section and 
has a supplementary leverage ratio of 3.0 percent or greater, as 
calculated in accordance with Sec.  324.11 of subpart B of this part.
    (3) ``Undercapitalized'' if it:
    (i) Has a total risk-based capital ratio that is less than 8.0 
percent; or
    (ii) Has a Tier 1 risk-based capital ratio that is less than 6.0 
percent; or
    (iii) Has a common equity tier 1 capital ratio that is less than 
4.5 percent; or
    (iv) Has a leverage ratio that is less than 4.0 percent.
    (v) Beginning January 1, 2018, an advanced approaches FDIC-
supervised institution will be deemed to be ``undercapitalized'' if it 
has a supplementary leverage ratio of less than 3.0 percent, as 
calculated in accordance with Sec.  324.11.
    (4) ``Significantly undercapitalized'' if it has:
    (i) A total risk-based capital ratio that is less than 6.0 percent; 
or
    (ii) A Tier 1 risk-based capital ratio that is less than 4.0 
percent; or
    (iii) A common equity tier 1 capital ratio that is less than 3.0 
percent; or
    (iv) A leverage ratio that is less than 3.0 percent.
    (5) ``Critically undercapitalized'' if the insured depository 
institution has a ratio of tangible equity to total assets that is 
equal to or less than 2.0 percent.
    (c) Capital categories for insured branches of foreign banks. For 
purposes of the provisions of section 38 of the FDI Act and this 
subpart H, an insured branch of a foreign bank shall be deemed to be:
    (1) ``Well capitalized'' if the insured branch:
    (i) Maintains the pledge of assets required under Sec.  347.209 of 
this chapter; and
    (ii) Maintains the eligible assets prescribed under Sec.  347.210 
of this chapter at 108 percent or more of the preceding quarter's 
average book value of the insured branch's third-party liabilities; and
    (iii) Has not received written notification from:
    (A) The OCC to increase its capital equivalency deposit pursuant to 
12 CFR 28.15, or to comply with asset maintenance requirements pursuant 
to 12 CFR 28.20; or
    (B) The FDIC to pledge additional assets pursuant to Sec.  347.209 
of this chapter or to maintain a higher ratio of eligible assets 
pursuant to Sec.  347.210 of this chapter.
    (2) ``Adequately capitalized'' if the insured branch:
    (i) Maintains the pledge of assets required under Sec.  347.209 of 
this chapter; and
    (ii) Maintains the eligible assets prescribed under Sec.  347.210 
of this chapter at 106 percent or more of the preceding quarter's 
average book value of the insured branch's third-party liabilities; and
    (iii) Does not meet the definition of a well capitalized insured 
branch.
    (3) ``Undercapitalized'' if the insured branch:
    (i) Fails to maintain the pledge of assets required under Sec.  
347.209 of this chapter; or
    (ii) Fails to maintain the eligible assets prescribed under Sec.  
347.210 of this chapter at 106 percent or more of the preceding 
quarter's average book value of the insured branch's third-party 
liabilities.
    (4) ``Significantly undercapitalized'' if it fails to maintain the 
eligible assets prescribed under Sec.  347.210 of this chapter at 104 
percent or more of the preceding quarter's average book value of the 
insured branch's third-party liabilities.
    (5) ``Critically undercapitalized'' if it fails to maintain the 
eligible assets prescribed under Sec.  347.210 of this chapter at 102 
percent or more of the preceding quarter's average book value of the 
insured branch's third-party liabilities.
    (d) Reclassifications based on supervisory criteria other than 
capital. The FDIC may reclassify a well capitalized FDIC-supervised 
institution as adequately capitalized and may require an adequately 
capitalized FDIC-supervised institution or an undercapitalized FDIC-
supervised institution to comply with certain mandatory or 
discretionary supervisory

[[Page 55593]]

actions as if the FDIC-supervised institution were in the next lower 
capital category (except that the FDIC may not reclassify a 
significantly undercapitalized FDIC-supervised institution as 
critically undercapitalized) (each of these actions are hereinafter 
referred to generally as ``reclassifications'') in the following 
circumstances:
    (1) Unsafe or unsound condition. The FDIC has determined, after 
notice and opportunity for hearing pursuant to Sec.  308.202(a) of this 
chapter, that the FDIC-supervised institution is in unsafe or unsound 
condition; or
    (2) Unsafe or unsound practice. The FDIC has determined, after 
notice and opportunity for hearing pursuant to Sec.  308.202(a) of this 
chapter, that, in the most recent examination of the FDIC-supervised 
institution, the FDIC-supervised institution received and has not 
corrected a less-than-satisfactory rating for any of the categories of 
asset quality, management, earnings, or liquidity.


Sec.  324.404  Capital restoration plans.

    (a) Schedule for filing plan--(1) In general. An FDIC-supervised 
institution shall file a written capital restoration plan with the 
appropriate FDIC regional director within 45 days of the date that the 
FDIC-supervised institution receives notice or is deemed to have notice 
that the FDIC-supervised institution is undercapitalized, significantly 
undercapitalized, or critically undercapitalized, unless the FDIC 
notifies the FDIC-supervised institution in writing that the plan is to 
be filed within a different period. An adequately capitalized FDIC-
supervised institution that has been required pursuant to Sec.  
324.403(d) to comply with supervisory actions as if the FDIC-supervised 
institution were undercapitalized is not required to submit a capital 
restoration plan solely by virtue of the reclassification.
    (2) Additional capital restoration plans. Notwithstanding paragraph 
(a)(1) of this section, an FDIC-supervised institution that has already 
submitted and is operating under a capital restoration plan approved 
under section 38 and this subpart H is not required to submit an 
additional capital restoration plan based on a revised calculation of 
its capital measures or a reclassification of the institution under 
Sec.  324.403 unless the FDIC notifies the FDIC-supervised institution 
that it must submit a new or revised capital plan. An FDIC-supervised 
institution that is notified that it must submit a new or revised 
capital restoration plan shall file the plan in writing with the 
appropriate FDIC regional director within 45 days of receiving such 
notice, unless the FDIC notifies it in writing that the plan must be 
filed within a different period.
    (b) Contents of plan. All financial data submitted in connection 
with a capital restoration plan shall be prepared in accordance with 
the instructions provided on the Call Report, unless the FDIC instructs 
otherwise. The capital restoration plan shall include all of the 
information required to be filed under section 38(e)(2) of the FDI Act. 
An FDIC-supervised institution that is required to submit a capital 
restoration plan as a result of its reclassification pursuant to Sec.  
324.403(d) shall include a description of the steps the FDIC-supervised 
institution will take to correct the unsafe or unsound condition or 
practice. No plan shall be accepted unless it includes any performance 
guarantee described in section 38(e)(2)(C) of the FDI Act by each 
company that controls the FDIC-supervised institution.
    (c) Review of capital restoration plans. Within 60 days after 
receiving a capital restoration plan under this subpart, the FDIC shall 
provide written notice to the FDIC-supervised institution of whether 
the plan has been approved. The FDIC may extend the time within which 
notice regarding approval of a plan shall be provided.
    (d) Disapproval of capital plan. If a capital restoration plan is 
not approved by the FDIC, the FDIC-supervised institution shall submit 
a revised capital restoration plan within the time specified by the 
FDIC. Upon receiving notice that its capital restoration plan has not 
been approved, any undercapitalized FDIC-supervised institution (as 
defined in Sec.  324.403(b)) shall be subject to all of the provisions 
of section 38 of the FDI Act and this subpart H applicable to 
significantly undercapitalized institutions. These provisions shall be 
applicable until such time as a new or revised capital restoration plan 
submitted by the FDIC-supervised institution has been approved by the 
FDIC.
    (e) Failure to submit capital restoration plan. An FDIC-supervised 
institution that is undercapitalized (as defined in Sec.  324.403(b)) 
and that fails to submit a written capital restoration plan within the 
period provided in this section shall, upon the expiration of that 
period, be subject to all of the provisions of section 38 and this 
subpart applicable to significantly undercapitalized institutions.
    (f) Failure to implement capital restoration plan. Any 
undercapitalized FDIC-supervised institution that fails in any material 
respect to implement a capital restoration plan shall be subject to all 
of the provisions of section 38 of the FDI Act and this subpart H 
applicable to significantly undercapitalized institutions.
    (g) Amendment of capital restoration plan. An FDIC-supervised 
institution that has filed an approved capital restoration plan may, 
after prior written notice to and approval by the FDIC, amend the plan 
to reflect a change in circumstance. Until such time as a proposed 
amendment has been approved, the FDIC-supervised institution shall 
implement the capital restoration plan as approved prior to the 
proposed amendment.
    (h) Performance guarantee by companies that control an FDIC-
supervised institution--(1) Limitation on liability--(i) Amount 
limitation. The aggregate liability under the guarantee provided under 
section 38 and this subpart H for all companies that control a specific 
FDIC-supervised institution that is required to submit a capital 
restoration plan under this subpart H shall be limited to the lesser 
of:
    (A) An amount equal to 5.0 percent of the FDIC-supervised 
institution's total assets at the time the FDIC-supervised institution 
was notified or deemed to have notice that the FDIC-supervised 
institution was undercapitalized; or
    (B) The amount necessary to restore the relevant capital measures 
of the FDIC-supervised institution to the levels required for the FDIC-
supervised institution to be classified as adequately capitalized, as 
those capital measures and levels are defined at the time that the 
FDIC-supervised institution initially fails to comply with a capital 
restoration plan under this subpart H.
    (ii) Limit on duration. The guarantee and limit of liability under 
section 38 of the FDI Act and this subpart H shall expire after the 
FDIC notifies the FDIC-supervised institution that it has remained 
adequately capitalized for each of four consecutive calendar quarters. 
The expiration or fulfillment by a company of a guarantee of a capital 
restoration plan shall not limit the liability of the company under any 
guarantee required or provided in connection with any capital 
restoration plan filed by the same FDIC-supervised institution after 
expiration of the first guarantee.
    (iii) Collection on guarantee. Each company that controls a given 
FDIC-supervised institution shall be jointly and severally liable for 
the guarantee for such FDIC-supervised institution as required under 
section 38 and this subpart H, and the FDIC may require and collect 
payment of the full amount

[[Page 55594]]

of that guarantee from any or all of the companies issuing the 
guarantee.
    (2) Failure to provide guarantee. In the event that an FDIC-
supervised institution that is controlled by any company submits a 
capital restoration plan that does not contain the guarantee required 
under section 38(e)(2) of the FDI Act, the FDIC-supervised institution 
shall, upon submission of the plan, be subject to the provisions of 
section 38 and this subpart H that are applicable to FDIC-supervised 
institutions that have not submitted an acceptable capital restoration 
plan.
    (3) Failure to perform guarantee. Failure by any company that 
controls an FDIC-supervised institution to perform fully its guarantee 
of any capital plan shall constitute a material failure to implement 
the plan for purposes of section 38(f) of the FDI Act. Upon such 
failure, the FDIC-supervised institution shall be subject to the 
provisions of section 38 and this subpart H that are applicable to 
FDIC-supervised institutions that have failed in a material respect to 
implement a capital restoration plan.


Sec.  324.405  Mandatory and discretionary supervisory actions.

    (a) Mandatory supervisory actions--(1) Provisions applicable to all 
FDIC-supervised institutions. All FDIC-supervised institutions are 
subject to the restrictions contained in section 38(d) of the FDI Act 
on payment of capital distributions and management fees.
    (2) Provisions applicable to undercapitalized, significantly 
undercapitalized, and critically undercapitalized FDIC-supervised 
institution. Immediately upon receiving notice or being deemed to have 
notice, as provided in Sec.  324.402, that the FDIC-supervised 
institution is undercapitalized, significantly undercapitalized, or 
critically undercapitalized, it shall become subject to the provisions 
of section 38 of the FDI Act:
    (i) Restricting payment of capital distributions and management 
fees (section 38(d) of the FDI Act);
    (ii) Requiring that the FDIC monitor the condition of the FDIC-
supervised institution (section 38(e)(1) of the FDI Act);
    (iii) Requiring submission of a capital restoration plan within the 
schedule established in this subpart (section 38(e)(2) of the FDI Act);
    (iv) Restricting the growth of the FDIC-supervised institution's 
assets (section 38(e)(3) of the FDI Act); and
    (v) Requiring prior approval of certain expansion proposals 
(section 38(e)(4) of the FDI Act).
    (3) Additional provisions applicable to significantly 
undercapitalized, and critically undercapitalized FDIC-supervised 
institutions. In addition to the provisions of section 38 of the FDI 
Act described in paragraph (a)(2) of this section, immediately upon 
receiving notice or being deemed to have notice, as provided in Sec.  
324.402, that the FDIC-supervised institution is significantly 
undercapitalized, or critically undercapitalized, or that the FDIC-
supervised institution is subject to the provisions applicable to 
institutions that are significantly undercapitalized because the FDIC-
supervised institution failed to submit or implement in any material 
respect an acceptable capital restoration plan, the FDIC-supervised 
institution shall become subject to the provisions of section 38 of the 
FDI Act that restrict compensation paid to senior executive officers of 
the institution (section 38(f)(4) of the FDI Act).
    (4) Additional provisions applicable to critically undercapitalized 
institutions. (i) In addition to the provisions of section 38 of the 
FDI Act described in paragraphs (a)(2) and (a)(3) of this section, 
immediately upon receiving notice or being deemed to have notice, as 
provided in Sec.  324.402, that the insured depository institution is 
critically undercapitalized, the institution is prohibited from doing 
any of the following without the FDIC's prior written approval:
    (A) Entering into any material transaction other than in the usual 
course of business, including any investment, expansion, acquisition, 
sale of assets, or other similar action with respect to which the 
depository institution is required to provide notice to the appropriate 
Federal banking agency;
    (B) Extending credit for any highly leveraged transaction;
    (C) Amending the institution's charter or bylaws, except to the 
extent necessary to carry out any other requirement of any law, 
regulation, or order;
    (D) Making any material change in accounting methods;
    (E) Engaging in any covered transaction (as defined in section 
23A(b) of the Federal Reserve Act (12 U.S.C. 371c(b)));
    (F) Paying excessive compensation or bonuses;
    (G) Paying interest on new or renewed liabilities at a rate that 
would increase the institution's weighted average cost of funds to a 
level significantly exceeding the prevailing rates of interest on 
insured deposits in the institution's normal market areas; and
    (H) Making any principal or interest payment on subordinated debt 
beginning 60 days after becoming critically undercapitalized except 
that this restriction shall not apply, until July 15, 1996, with 
respect to any subordinated debt outstanding on July 15, 1991, and not 
extended or otherwise renegotiated after July 15, 1991.
    (ii) In addition, the FDIC may further restrict the activities of 
any critically undercapitalized institution to carry out the purposes 
of section 38 of the FDI Act.
    (iii) The FDIC-supervised institution must remain in compliance 
with the plan or is operating under a written agreement with the 
appropriate Federal banking agency.
    (b) Discretionary supervisory actions. In taking any action under 
section 38 of the FDI Act that is within the FDIC's discretion to take 
in connection with:
    (1) An insured depository institution that is deemed to be 
undercapitalized, significantly undercapitalized, or critically 
undercapitalized, or has been reclassified as undercapitalized, or 
significantly undercapitalized; or
    (2) An officer or director of such institution, the FDIC shall 
follow the procedures for issuing directives under Sec. Sec.  308.201 
and 308.203 of this chapter, unless otherwise provided in section 38 of 
the FDI Act or this subpart H.

PART 327--ASSESSMENTS

0
14. The authority citation for part 327 continues to read as follows:

    Authority: 12 U.S.C. 1441, 1813, 1815, 1817-19, 1821.


0
15. Appendix A to subpart A of part 327 is amended by revising footnote 
5 in section VI. to read as follows:

Appendix A to Subpart A of Part 327--Method to Derive Pricing 
Multipliers and Uniform Amount

* * * * *
VI. Description of Scorecard Measures
* * * * *
    \5\ Market risk capital is defined in Appendix C of part 325 of 
the FDIC Rules and Regulations or subpart F of Part 324 of the FDIC 
Rules and Regulations, as applicable.
* * * * *

0
16. Appendix C to subpart A of part 327 is amended by revising the 
first paragraph in section I.A.5 to read as follows:

Appendix C to Subpart A to Part 327

* * * * *
    I. * * *
    A. * * *

[[Page 55595]]

5. Higher-Risk Securitizations
    Higher-risk securitizations are defined as securitizations or 
securitization exposures (except securitizations classified as trading 
book), where, in aggregate, more than 50 percent of the assets backing 
the securitization meet either the criteria for higher-risk C & I loans 
or securities, higher-risk consumer loans, or nontraditional mortgage 
loans, except those classified as trading book. A securitization is as 
defined in 12 CFR part 325, Appendix A, Section II(B)(16), or in 12 CFR 
324.2, as applicable, as they may be amended from time to time. A 
higher-risk securitization excludes the maximum amount that is 
recoverable from the U.S. government under guarantee or insurance 
provisions.
* * * * *

PART 333--EXTENSION OF CORPORATE POWERS

0
17. The authority citation for part 333 continues to read as follows:

    Authority: 12 U.S.C. 1816, 1818, 1819 (``Seventh'', ``Eighth'' 
and ``Tenth''), 1828, 1828(m), 1831p-1(c).


0
18. Section 333.4 is amended by revising the fourth sentence in 
paragraph (a) to read as follows:


Sec.  333.4  Conversions from mutual to stock form.

    (a) Scope. * * * As determined by the Board of Directors of the 
FDIC on a case-by-case basis, the requirements of paragraphs (d), (e), 
and (f) of this section do not apply to mutual-to-stock conversions of 
insured mutual state savings banks whose capital category under Sec.  
325.103 of this chapter or Sec.  324.403, as applicable, is 
``undercapitalized'', ``significantly undercapitalized'' or 
``critically undercapitalized''. * * *
* * * * *

PART 337--UNSAFE AND UNSOUND BANKING PRACTICES

0
19. The authority citation for part 337 continues to read as follows:

    Authority: 12 U.S.C. 375a(4), 375b, 1816, 1818(a), 1818(b), 
1819, 1820(d)(10), 1821(f), 1828(j)(2), 1831, 1831f.


0
20. Section 337.6 is amended by revising footnotes 12 and 13 in 
paragraph (a) to read as follows:


Sec.  337.6  Brokered deposits.

* * * * *
    \12\ For the most part, the capital measure terms are defined in 
the following regulations: FDIC--12 CFR part 325, subpart B or 12 
CFR part 324, subpart H, as applicable; Board of Governors of the 
Federal Reserve System--12 CFR part 208; and Office of the 
Comptroller of the Currency--12 CFR part 6.
    \13\ The regulations implementing section 38 of the Federal 
Deposit Insurance Act and issued by the federal banking agencies 
generally provide that an insured depository institution is deemed 
to have been notified of its capital levels and its capital category 
as of the most recent date: (1) A Consolidated Report of Condition 
and Income is required to be filed with the appropriate federal 
banking agency; (2) A final report of examination is delivered to 
the institution; or (3) Written notice is provided by the 
appropriate federal banking agency to the institution of its capital 
category for purposes of section 38 of the Federal Deposit Insurance 
Act and implementing regulations or that the institution's capital 
category has changed. Provisions specifying the effective date of 
determination of capital category are generally published in the 
following regulations: FDIC--12 CFR 325.102 or 12 CFR 324.402, as 
applicable. Board of Governors of the Federal Reserve System--12 CFR 
208.32. Office of the Comptroller of the Currency--12 CFR 6.3.
* * * * *

0
21. Section 337.12 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  337.12  Frequency of examination.

* * * * *
    (b) * * *
    (2) The bank is well capitalized as defined in Sec.  325.103(b)(1) 
of this chapter or Sec.  324.403(b)(1) of this chapter, as applicable.
* * * * *

PART 347--INTERNATIONAL BANKING

0
22. The authority citation for part 347 continues to read as follows:

    Authority: 12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103, 
3104, 3105, 3108, 3109; Title IX, Pub.L. 98-181, 97 Stat. 1153.


0
23. Section 347.102 is amended by revising paragraphs (u) and (v) to 
read as follows:


Sec.  347.102  Definition.

* * * * *
    (u) Tier 1 capital means Tier 1 capital as defined in Sec.  325.2 
of this chapter or Sec.  324.2 of this chapter, as applicable.
    (v) Well capitalized means well capitalized as defined in Sec.  
325.103 of this chapter or Sec.  324.403 of this chapter, as 
applicable.

PART 349--RETAIL FOREIGN EXCHANGE TRANSACTIONS

0
24. The authority citation for part 349 continues to read as follows:

    Authority: 12 U.S.C.1813(q), 1818, 1819, and 3108; 7 U.S.C. 
2(c)(2)(E), 27 et seq.

0
25. Section 349.8 is revised as follows:


Sec.  349.8  Capital requirements.

    An FDIC-supervised insured depository institution offering or 
entering into retail forex transactions must be well capitalized as 
defined by 12 CFR part 325 or 12 CFR part 324, as applicable, unless 
specifically exempted by the FDIC in writing.

PART 360--RESOLUTION AND RECEIVERSHIP RULES

0
26. The authority citation for part 360 continues to read as follows:

    Authority: 12 U.S.C. 1817(b), 1818(a)(2), 1818(t), 1819(a) 
Seventh, Ninth and Tenth, 1820(b)(3), (4), 1821(d)(1), 
1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 
1823(c)(4), 1823(e)(2); Sec. 401(h), Pub.L. 101-73, 103 Stat. 357.


0
27. Section 360.5 is amended to revise paragraph (b) to read as 
follows:


Sec.  360.5  Definition of qualified financial contracts.

* * * * *
    (b) Repurchase agreements. The following agreements shall be deemed 
``repurchase agreements'' under section 11(e)(8)(D)(v) of the Federal 
Deposit Insurance Act, as amended (12 U.S.C. 1821(e)(8)(D)(v)): A 
repurchase agreement on qualified foreign government securities is an 
agreement or combination of agreements (including master agreements) 
which provides for the transfer of securities that are direct 
obligations of, or that are fully guaranteed by, the central 
governments (as set forth at 12 CFR part 325, appendix A, section II.C, 
n. 17, as may be amended from time to time or 12 CFR 324.2 (definition 
of sovereign exposure), as applicable) of the OECD-based group of 
countries (as set forth at 12 CFR part 325, appendix A, section 
II.B.2., note 12 as generally discussed in 12 CFR 324.32) against the 
transfer of funds by the transferee of such securities with a 
simultaneous agreement by such transferee to transfer to the transferor 
thereof securities as described above, at a date certain not later than 
one year after such transfers or on demand, against the transfer of 
funds.
* * * * *

0
28. Section 360.9 is amended by revising the first sentence of 
paragraph (e)(6) to read as follows:


Sec.  360.9  Large-bank deposit insurance determination modernization.

* * * * *
    (e) * * *
    (6) Notwithstanding the general requirements of this paragraph (e), 
on a case-by-case basis, the FDIC may accelerate, upon notice, the 
implementation timeframe of all or part

[[Page 55596]]

of the requirements of this section for a covered institution that: Has 
a composite rating of 3, 4, or 5 under the Uniform Financial 
Institution's Rating System, or in the case of an insured branch of a 
foreign bank, an equivalent rating; is undercapitalized, as defined 
under the prompt corrective action provisions of 12 CFR part 325 or 12 
CFR part 324, as applicable; or is determined by the appropriate 
Federal banking agency or the FDIC in consultation with the appropriate 
Federal banking agency to be experiencing a significant deterioration 
of capital or significant funding difficulties or liquidity stress, 
notwithstanding the composite rating of the institution by its 
appropriate Federal banking agency in its most recent report of 
examination. * * *
* * * * *

PART 362--ACTIVITIES OF INSURED STATE BANKS AND INSURED SAVINGS 
ASSOCIATIONS

0
29. The authority citation for part 362 continues to read as follows:

    Authority: 12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 
1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l).


0
30. Section 362.2 is amended by revising paragraphs (s) and (t) to read 
as follows:


Sec.  362.2  Definitions.

* * * * *
    (s) Tier one capital has the same meaning as set forth in part 324 
or 325 of this chapter, as applicable, for an insured State nonmember 
bank. For other state-chartered depository institutions, the term 
``tier one capital'' has the same meaning as set forth in the capital 
regulations adopted by the appropriate Federal banking agency.
    (t) Well-capitalized has the same meaning set forth in part 324 or 
325 of this chapter, as applicable, of this chapter for an insured 
State nonmember bank. For other state-chartered depository 
institutions, the term ``well-capitalized'' has the same meaning as set 
forth in the capital regulations adopted by the appropriate Federal 
banking agency.

0
31. Section 362.4 is amended by revising paragraph (e)(3) to read as 
follows:


Sec.  362.4  Subsidiaries of insured State banks.

* * * * *
    (e) * * *
    (3) Use such regulatory capital amount for the purposes of the 
bank's assessment risk classification under part 327 of this chapter 
and its categorization as a ``well-capitalized'', an ``adequately 
capitalized'', an ``undercapitalized'', or a ``significantly 
undercapitalized'' institution as defined in Sec.  325.103(b) of this 
chapter or Sec.  324.403(b) of this chapter, as applicable, provided 
that the capital deduction shall not be used for purposes of 
determining whether the bank is ``critically undercapitalized'' under 
part 325 of this chapter or part 324 of this chapter, as applicable.

0
32. Section 362.17 is amended by revising paragraph (d) to read as 
follows:


Sec.  362.17  Definitions.

* * * * *
    (d) Tangible equity and Tier 2 capital have the same meaning as set 
forth in part 325 of this chapter or part 324 of this chapter, as 
applicable.
* * * * *

0
33. Revise Sec.  362.18(a)(3) to read as follows:


Sec.  362.18  Financial subsidiaries of insured state nonmember banks.

    (a) * * *
    (3) The insured state nonmember bank will deduct the aggregate 
amount of its outstanding equity investment, including retained 
earnings, in all financial subsidiaries that engage in activities as 
principal pursuant to section 46(a) of the Federal Deposit Act (12 
U.S.C. 1831w(a)), from the bank's total assets and tangible equity and 
deduct such investment from its total risk-based capital (this 
deduction shall be made equally from tier 1 and tier 2 capital) or from 
common equity tier 1 capital in accordance with 12 CFR part 324, 
subpart C, as applicable.
* * * * *

PART 363--ANNUAL INDEPENDENT AUDITS AND REPORTING REQUIREMENTS

0
34. The authority citation for part 363 continues to read as follows:

    Authority: 12 U.S.C. 1831m.

0
35. Appendix A to part 363 is amended by revising Table 1 to Appendix A 
to read as follows:

Appendix A to Part 363--Guidelines and Interpretations

                                      Table 1 to Appendix A--Designated Federal Laws and Regulations Applicable to:
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         State member      State non-        Savings
                                                                                       National banks       banks         member banks     associations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Insider Loans--Parts and/or Sections of Title 12 of the United States Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
375a............................................  Loans to Executive Officers of             [radic]          [radic]              (A)              (A)
                                                   Banks.
375b............................................  Extensions of Credit to Executive          [radic]          [radic]              (A)              (A)
                                                   Officers, Directors, and
                                                   Principal Shareholders of Banks.
1468(b).........................................  Extensions of Credit to Executive   ...............  ...............  ...............         [radic]
                                                   Officers, Directors, and
                                                   Principal Shareholders.
1828(j)(2)......................................  Extensions of Credit to Officers,   ...............  ...............         [radic]   ...............
                                                   Directors, and Principal
                                                   Shareholders.
1828(j)(3)(B)...................................  Extensions of Credit to Officers,              (B)   ...............               (C) ...............
                                                   Directors, and Principal
                                                   Shareholders.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Parts and/or Sections of Title 12 of the Code of Federal Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
31..............................................  Extensions of Credit to Insiders..         [radic]   ...............  ...............  ...............
32..............................................  Lending Limits....................         [radic]   ...............  ...............  ...............
215.............................................  Loans to Executive Officers,               [radic]          [radic]              (D)              (E)
                                                   Directors, and Principal
                                                   Shareholders of Member Banks.
337.3...........................................  Limits on Extensions of Credit to   ...............  ...............         [radic]   ...............
                                                   Executive Officers, Directors,
                                                   and Principal Shareholders of
                                                   Insured Nonmember Banks.

[[Page 55597]]

 
563.43..........................................  Loans by Savings Associations to    ...............  ...............  ...............         [radic]
                                                   Their Executive Officers,
                                                   Directors, and Principal
                                                   Shareholders.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Dividend Restrictions--Parts and/or Sections of Title 12 of the United States Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
56..............................................  Prohibition on Withdrawal of               [radic]          [radic]   ...............  ...............
                                                   Capital and Unearned Dividends.
60..............................................  Dividends and Surplus Fund........         [radic]          [radic]   ...............  ...............
1467a(f)........................................  Declaration of Dividend...........  ...............  ...............  ...............         [radic]
1831o(d)(1).....................................  Prompt Corrective Action--Capital          [radic]          [radic]          [radic]          [radic]
                                                   Distributions Restricted.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Parts and/or Sections of Title 12 of the Code of Federal Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 Subpart E.....................................  Payment of Dividends..............         [radic]   ...............  ...............  ...............
6.6.............................................  Prompt Corrective Action--                 [radic]   ...............  ...............  ...............
                                                   Restrictions on Undercapitalized
                                                   Institutions.
208.5...........................................  Dividends and Other Distributions.  ...............         [radic]   ...............  ...............
208.45..........................................  Prompt Corrective Action--          ...............         [radic]   ...............  ...............
                                                   Restrictions on Undercapitalized
                                                   Institutions.
325.105 or 324.403, as applicable...............  Prompt Corrective Action--          ...............  ...............         [radic]   ...............
                                                   Restrictions on Undercapitalized
                                                   Institutions.
563 Subpart E...................................  Capital Distributions.............  ...............  ...............  ...............         [radic]
565.6...........................................  Prompt Corrective Action--          ...............  ...............  ...............         [radic]
                                                   Restrictions on Undercapitalized
                                                   Institutions.
--------------------------------------------------------------------------------------------------------------------------------------------------------
A. Subsections (g) and (h) of section 22 of the Federal Reserve Act [12 U.S.C. 375a, 375b].
B. Applies only to insured Federal branches of foreign banks.
C. Applies only to insured State branches of foreign banks.
D. See 12 CFR 337.3.
E. See 12 CFR 563.43.

PART 364--STANDARDS FOR SAFETY AND SOUNDNESS

0
36. The authority citation in part 364 continues to read as follows:

    Authority: 12 U.S.C. 1818 and 1819 (Tenth), 1831p-1; 15 U.S.C. 
1681b, 1681s, 1681w, 6801(b), 6805(b)(1).


0
37. Appendix A to part 364 is amended by revising the last sentence in 
section I.A. as follows:

Appendix A to Part 364--Interagency Guidelines Establishing Standards 
for Safety and Soundness

* * * * *

I. Introduction

* * * * *
A. Preservation of Existing Authority
    * * * Nothing in these Guidelines limits the authority of the FDIC 
pursuant to section 38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and 
part 325 or part 324, as applicable, of Title 12 of the Code of Federal 
Regulations.
* * * * *

PART 365--REAL ESTATE LENDING STANDARDS

0
38. The authority citation for part 365 continues to read as follows:

    Authority: 12 U.S.C. 1828(o) and 5101 et seq.


0
39. Appendix A to subpart A of part 365 is amended by revising footnote 
2 to the ``Loans in Excess of the Supervisory Loan-to-Value Limits'' 
section to read as follows:

Appendix A to Subpart A of Part 365--Interagency Guidelines for Real 
Estate Lending Policies

* * * * *

    \2\ For insured state non-member banks, ``total capital'' refers 
to that term described in table I of appendix A to 12 CFR part 325 
or 12 CFR 324.2, as applicable. For state savings associations, the 
term ``total capital'' is defined at 12 CFR part 390, subpart Z or 
12 CFR 324.2, as applicable.

* * * * *

PART 390--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
40. The authority citation for part 390 continues to read as follows:

    Authority: 12 U.S.C. 1819.; Subpart A also issued under 12 
U.S.C. 1820; Subpart B also issued under 12 U.S.C. 1818.; Subpart C 
also issued under 5 U.S.C. 504; 554-557; 12 U.S.C. 1464; 1467; 1468; 
1817; 1818; 1820; 1829; 3349, 4717; 15 U.S.C. 78l; 78o-5; 78u-2; 28 
U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 4012a.; Subpart D also 
issued under 12 U.S.C. 1817; 1818; 1820; 15 U.S.C. 78l; Subpart E 
also issued under 12 U.S.C. 1813; 1831m; 15 U.S.C. 78.; Subpart F 
also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901 et seq.; Subpart 
G also issued under 12 U.S.C. 2810 et seq., 2901 et seq.; 15 U.S.C. 
1691; 42 U.S.C. 1981, 1982, 3601-3619.; Subpart H also issued under 
12 U.S.C. 1464; 1831y; Subpart I also issued under 12 U.S.C. 1831x; 
Subpart J also issued under 12 U.S.C. 1831p-1; Subpart K also issued 
under 12 U.S.C. 1817; 1818; 15 U.S.C. 78c; 78l; Subpart L also 
issued under 12 U.S.C. 1831p-1; Subpart M also issued under 12 
U.S.C. 1818; Subpart N also issued under 12 U.S.C. 1821; Subpart O 
also issued under 12 U.S.C. 1828; Subpart P also issued under 12 
U.S.C. 1470; 1831e; 1831n; 1831p-1; 3339; Subpart Q also issued 
under 12 U.S.C. 1462.


0
41. Appendix A to Sec.  390.265 is amended by revising footnote 4 as 
follows:


Sec.  390.265  Real estate landing standards.

* * * * *

Appendix A to Sec.  390.265--Interagency Guidelines for Real Estate 
Lending Policies

* * * * *

    \4\ For the state member banks, the term ``total capital'' means 
``total risk-based capital'' as defined in appendix A to 12 CFR part 
208. For insured state non-member banks, ``total capital'' refers to 
that term described in table I of appendix A to 12 CFR

[[Page 55598]]

part 325 or 12 CFR 324.2, as applicable. For national banks, the 
term ``total capital'' is defined at 12 CFR 3.2(e). For savings 
associations, the term ``total capital'' is defined at 12 CFR 390, 
subpart Z or 12 CFR 324.2, as applicable.

* * * * *

PART 391--FORMER OFFICE OF THRIFT SUPERVISION REGULATIONS

0
42. The authority citation for part 391 continues to read as follows:

    Authority: 12 U.S.C. 1819 (Tenth); Subpart A also issued under 
12 U.S.C. 1462a; 1463; 1464; 1828; 1831p-1; 1881-1884; 15 U.S.C. 
1681w; 15 U.S.C. 6801; 6805; Subpart B also issued under 12 U.S.C. 
1462a; 1463; 1464; 1828; 1831p-1; 1881-1884; 15 U.S.C.1681w; 15 
U.S.C. 6801; 6805; Subpart C also issued under 12 U.S.C. 1462a; 
1463; 1464; 1828; 1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w; 
Subpart D also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 42 
U.S.C. 4012a; 4104a; 4104b; 4106; 4128; Subpart E also issued under 
12 U.S.C. 1467a; 1468; 1817; 1831i.

0
43. Appendix A to subpart B of part 391 is amended by revising the last 
sentence in section I.A. as follows:

Appendix A to Subpart B of Part 391--Interagency Guidelines 
Establishing Standards for Safety and Soundness

* * * * *
I. Introduction
* * * * *
A. Preservation of Existing Authority
    * * * Nothing in these Guidelines limits the authority of the FDIC 
pursuant to section 38(i)(2)(F) of the FDI Act (12 U.S.C. 1831(o)) and 
part 325 or part 324, as applicable of Title 12 of the Code of Federal 
Regulations.

    Dated at Washington, DC, this 9th day of July, 2013.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2013-20536 Filed 9-9-13; 8:45 am]
BILLING CODE 6714-01-P

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