Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation Authority, 965-1004 [2014-30734]
Download as PDF
Vol. 80
Wednesday,
No. 4
January 7, 2015
Part IV
Department of the Treasury
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
31 CFR Part 148
Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation
Authority; Proposed Rule
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
PO 00000
Frm 00001
Fmt 4717
Sfmt 4717
E:\FR\FM\07JAP4.SGM
07JAP4
966
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
DEPARTMENT OF THE TREASURY
31 CFR Part 148
RIN 1505–AC36
Qualified Financial Contracts
Recordkeeping Related to Orderly
Liquidation Authority
The Secretary of the
Department of the Treasury, as
Chairperson of the Financial Stability
Oversight Council.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Secretary of the Treasury
(the ‘‘Secretary’’), as Chairperson of the
Financial Stability Oversight Council, is
proposing rules (the ‘‘Proposed Rules’’)
to implement the qualified financial
contract (‘‘QFC’’) recordkeeping
requirements of the Dodd–Frank Wall
Street Reform and Consumer Protection
Act (‘‘Act’’ or the ‘‘Dodd–Frank Act’’).
The Act provides that if the federal
primary financial regulatory agencies do
not prescribe joint final or interim final
regulations requiring financial
companies to maintain records with
respect to QFCs to assist the Federal
Deposit Insurance Corporation (‘‘FDIC’’)
as receiver for a covered financial
company to exercise its rights and fulfill
its obligations under the Act within 24
months of the enactment of the Act, the
Chairperson of the Financial Stability
Oversight Council (the ‘‘Council’’) shall
prescribe, in consultation with the
FDIC, such regulations. The Secretary,
as Chairperson of the Council, is
proposing the Proposed Rules in
consultation with the FDIC because the
federal primary financial regulatory
agencies did not so prescribe joint final
or interim final regulations. The
Proposed Rules would require
recordkeeping with respect to positions,
counterparties, legal documentation and
collateral. This information is necessary
to assist the FDIC as receiver to: Fulfill
its obligations under the Dodd–Frank
Act in deciding whether to transfer
QFCs; assess the consequences of
decisions to transfer, disaffirm or
repudiate, or allow the termination of,
QFCs with one or more counterparties;
determine if any financial systemic risks
are posed by the transfer, disaffirmance
or repudiation, or termination of such
QFCs; and otherwise exercise its rights
under the Act. The Secretary is
requesting comment on all aspects of
the Proposed Rules.
DATES: Written comments must be
received by April 7, 2015.
ADDRESSES: Submit comments
electronically through the Federal
eRulemaking Portal: https://
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
www.regulations.gov, or by mail (if hard
copy, preferably an original and two
copies) to: The Treasury Department,
Attn: Qualified Financial Contracts
Recordkeeping Comments, 1500
Pennsylvania Avenue NW., Washington,
DC 20220. Because paper mail in the
Washington, DC area may be subject to
delay, it is recommended that comments
be submitted electronically. Please
include your name, affiliation, address,
email address, and telephone number in
your comment. Comments will be
available for public inspection on
www.regulations.gov. In general,
comments received, including
attachments and other supporting
materials, are part of the public record
and are available to the public. Do not
submit any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure.
FOR FURTHER INFORMATION CONTACT:
Monique Rollins, Acting Deputy
Assistant Secretary for Capital Markets;
Patricia Kao, Director, Office of
Financial Institutions Policy: (202) 622–
4948.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Executive Summary
B. Publication of the Notice of Proposed
Rulemaking
II. Background—QFCs and Receivership
III. The Proposed Rules
A. Scope, Purpose, Effective Date and
Compliance Dates
1. Scope
a. Key Definitions
b. Records Entities Within a U.S. Holding
Company
c. Clearing Organizations
d. Scope of Proposed Rules
2. Purpose
3. Effective Date and Compliance Dates
B. General Definitions
C. Form, Availability, and Maintenance of
Records
1. Form and Availability
2. Maintenance and Updating
3. Exemptions
D. Content of Records
1. General Information
2. Appendix Information
IV. Administrative Law Matters
A. Initial Regulatory Flexibility Analysis
1. Statement of the Need for, Objectives of,
and Legal Basis for the Proposed Rules
2. Small Entities Affected by the Proposed
Rules
3. Projected Recordkeeping and Other
Compliance Requirements
4. Identification of Duplication,
Overlapping, or Conflicting Federal
Rules
5. Significant Alternatives to the Proposed
Rules
B. Paperwork Reduction Act
C. Executive Orders 12866 and 13563
PO 00000
Frm 00002
Fmt 4701
Sfmt 4702
1. Description of the Need for the
Regulatory Action
2. Literature Review
a. Fire Sales Among Financial Institutions
b. Costs of Lehman Brothers Bankruptcy
c. Conclusion
3. Baseline
4. Evaluation of Alternatives
a. Scope of the Proposed Rules
b. Content of Records
c. Standardized Recordkeeping
5. Affected Population
6. Assessment of Potential Costs and
Benefits
a. Potential Costs
b. Potential Benefits
7. Retrospective Analysis
I. Introduction
A. Executive Summary
The Dodd-Frank Act was enacted on
July 21, 2010.1 As part of a new and
comprehensive regulatory framework,
Title II of the Dodd-Frank Act (‘‘Title
II’’) generally establishes a mechanism
for the orderly resolution of a financial
company whose failure and resolution
under otherwise applicable federal or
state law would have serious adverse
effects on financial stability in the
United States. A ‘‘financial company’’
under Title II is a company that is
incorporated or organized under any
provision of federal law or the laws of
any State (as defined in 12 U.S.C.
5301(16)) that is:
• A bank holding company;
• A nonbank financial company
supervised by the Board of Governors of
the Federal Reserve System (‘‘Board’’);
• Any company that is predominantly
engaged in activities that the Board has
determined are financial in nature or
incidental thereto for purposes of
section 4(k) of the Bank Holding
Company Act of 1956 (‘‘BHC Act’’); 2 or
• Any subsidiary of such financial
company that is itself predominantly
engaged in activities that the Board has
determined are financial in nature or
incidental thereto for purposes of
section 4(k) of the BHC Act, other than
an insured depository institution or an
insurance company.3
The Title II orderly liquidation
mechanism is modeled in part on
1 Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. 111–203, 124 Stat. 1376
(2010).
2 The FDIC has published a final rule that
identifies the activities listed in section 4(k) of the
BHC Act and the Board’s Regulation Y (12 CFR part
225) that would be considered financial in nature
or incidental thereto for purposes of Title II. See 78
FR 34712 (June 10, 2013).
3 Dodd-Frank Section 201(a)(11), 12 U.S.C.
5381(a)(11). The definition excludes Farm Credit
System institutions chartered under and subject to
the provisions of the Farm Credit Act; governmental
entities; and regulated entities, as defined under
section 1303(20) of the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992.
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
provisions of the Federal Deposit
Insurance Act (‘‘FDIA’’) 4 regarding
insolvencies of insured depository
institutions. Under Title II, the FDIC has
been given similar responsibilities as
under the FDIA, including receivership
authority over financial companies in
default or in danger of default for which
a determination has been made by the
Secretary (in consultation with the
President) to seek the appointment of
the FDIC as receiver pursuant to section
203(b) of the Dodd-Frank Act.
Title II includes provisions, set forth
at section 210(c)(8), concerning the
QFCs held by covered financial
companies. A ‘‘QFC’’ is a securities
contract, commodities contract, forward
contract, repurchase agreement, swap
agreement, or any similar agreement
that the FDIC determines by regulation,
resolution, or order to be a qualified
financial contract; 5 and a ‘‘covered
financial company’’ is a financial
company, other than an insured
depository institution, for which the
Secretary has made a determination to
seek the appointment of the FDIC as
receiver under the Dodd-Frank Act.6
The treatment afforded to QFCs under
Title II parallels the treatment afforded
to them under section 11(e) of the
FDIA.7 Under Title II and the FDIA,
from the time the FDIC is appointed as
receiver until 5 p.m. (eastern time) on
the business day following the date of
the appointment, a QFC counterparty is
prohibited from exercising any
contractual rights (including
termination) triggered by the
appointment of the receiver.8
After its appointment as receiver and
prior to 5 p.m. on the following business
day, the FDIC has three options for a
QFC to which a covered financial
company is a party:
(1) Transfer the QFC to another
financial institution;
(2) Retain the QFC within the
receivership and allow the counterparty
to terminate; or
(3) Retain the QFC within the
receivership and disaffirm or repudiate
the QFC and pay compensatory
damages.9
In order to assess the options that
would be available following its
appointment as receiver, the FDIC needs
detailed information about the covered
financial company’s QFCs. Section
210(c)(8)(H) therefore requires that the
Federal primary financial regulatory
4 12
U.S.C. 1811 et seq.
U.S.C. 5390(c)(8)(D)(i).
6 12 U.S.C. 5381(a)(8).
7 12 U.S.C. 1821(e).
8 See e.g., 12 U.S.C. 5390(c)(9) and (10).
9 12 U.S.C. 5390(c)(1), (10) and (11).
5 12
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
agencies, as defined in the Act 10 (the
‘‘PFRAs’’), to jointly prescribe, by July
21, 2012, final or interim final
regulations that require financial
companies to maintain such records
with respect to QFCs that the PFRAs
determine to be necessary or
appropriate to assist the FDIC as
receiver for a covered financial
company. Section 210(c)(8)(H) further
provides that if the PFRAs do not so
prescribe such joint regulations by July
21, 2012, the Secretary, as Chairperson
of the Council, shall prescribe such
regulations in consultation with the
FDIC.
As the PFRAs did not prescribe such
regulations by the statutory deadline,
the Secretary, as Chairperson of the
Council, in consultation with the FDIC,
is publishing the Proposed Rules. As
described in greater detail below, the
Proposed Rules would apply to a
‘‘records entity,’’ which is defined in the
Proposed Rules to include certain types
of financial companies that are parties
to an open QFC or guarantee, support,
or are linked to an open QFC and that
meet certain size or other thresholds
(such as risk, complexity, and
interconnectedness), or other conditions
or are certain affiliates in the same
corporate group as a financial company
that meets these thresholds or
conditions (referred throughout this
release as ‘‘affiliated financial
companies’’) and that are party to an
open QFC or that guarantee, support, or
are linked to an open QFC of an
affiliate.11
The Proposed Rules would require
these records entities to maintain
detailed information about their QFC
positions and be capable of providing
this information to their PFRAs within
24 hours of request by their PFRAs. This
would assist the FDIC in resolving
financial companies that may be subject
to an orderly liquidation under Title II
of the Dodd-Frank Act based on
consideration of such financial
companies’ size, risk, complexity,
leverage, frequency and dollar amount
of QFCs and interconnectedness to the
financial system, and any other factors
deemed appropriate.12 To that end, it is
10 12 U.S.C. 5301(12). See the term ‘‘primary
financial regulatory agency.’’
11 The term ‘‘affiliated financial companies’’ used
in this release is the combination of two defined
terms in the Proposed Rules: ‘‘affiliate’’ is defined
in § 148.2(a) and ‘‘financial company’’ is defined in
§ 148.2(f) of the Proposed Rules. An affiliated
financial company of a records entity would itself
be a records entity if it is not an exempt entity and
is a party to an open QFC or guarantees, supports,
or is linked to an open QFC of an affiliate. An
‘‘open’’ QFC is a QFC which has not been fully
performed.
12 See 12 U.S.C. 5390(c)(8)(H)(iv).
PO 00000
Frm 00003
Fmt 4701
Sfmt 4702
967
necessary that financial companies that
qualify as records entities maintain the
capacity to generate, on an ongoing
basis, QFC information in a common
data format. To facilitate the resolution
of QFC portfolios, the FDIC needs to
analyze such data upon being appointed
as receiver under Title II. The
information must be sufficient to allow
the FDIC to estimate the financial and
operational impact on the covered
financial company or its affiliated
companies of the FDIC’s decision to
transfer, disaffirm or repudiate, or retain
the QFCs. It must also allow the FDIC
to assess the potential impact that such
decisions may have on the financial
markets as a whole. The standardized
data format would reduce the time and
effort needed by the FDIC to perform the
analysis and would facilitate
comparison of QFC data across financial
companies with large complex QFC
portfolios.
The Proposed Rules also would allow
the Secretary to issue conditional or
unconditional general and specific
exemptions from one or more
requirements in the rule as the Secretary
determines to be necessary or
appropriate, including whether
application of one or more requirements
of the rule would not be necessary to
achieve the purpose of the rule. The
issuance of a conditional or
unconditional exemption would be
consistent with section 210(c)(8)(H)(iv)
of the Act which provides that the
regulations required by section
210(c)(8)(H)(i) differentiate among
financial companies, as appropriate, by
taking into consideration a number of
factors. Specifically, the Secretary
would consider whether to grant an
exemption after receiving a
recommendation from the FDIC,
prepared in consultation with the
applicable PFRAs, that takes into
consideration the financial company’s
or financial companies’ size, risk,
complexity, leverage, frequency and
dollar amount of QFCs, and
interconnectedness to the financial
system and any other factors deemed
necessary or appropriate.
The proposed recordkeeping
requirements of the Proposed Rules are
based, in part, on 12 CFR part 371,
Recordkeeping Requirements for
Qualified Financial Contracts,13 which
13 73 FR 78170 (Dec. 22, 2008). Part 371 requires
an insured depository institution in troubled
condition, upon written notification by the FDIC, to
produce immediately at the close of processing of
the institution’s business day, for a period provided
in the notification, the electronic files for certain
position level and counterparty level data;
electronic or written lists of QFC counterparty and
E:\FR\FM\07JAP4.SGM
Continued
07JAP4
968
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
implements section 11(e)(8)(H) of the
FDIA.14 The Proposed Rules also have
been informed by the FDIC’s experience
with both large and small portfolios of
QFCs of failed insured depository
institutions.
The recent financial crisis
demonstrated that management of QFC
positions, including steps undertaken to
close out such positions, can be an
important element of a resolution
strategy which, if not handled properly,
may magnify market instability. The
recordkeeping requirements of the
Proposed Rules are designed to ensure
that the FDIC, as receiver of a covered
financial company, will have
comprehensive information about the
QFC portfolio maintained by such
financial company subject to orderly
resolution, and to enable the FDIC to
plan the rapid and orderly resolution of
a financial company’s QFC portfolio in
the event of insolvency. The Proposed
Rules are also designed to provide the
FDIC with information necessary for the
FDIC as receiver to comply with the
statutory requirements for the transfer,
disaffirmance, or repudiation of the
QFCs of a financial company, within
any applicable time periods mandated
under Title II of the Dodd-Frank Act.
B. Publication of the Notice of Proposed
Rulemaking
The Secretary is publishing this
notice of proposed rulemaking in light
of his responsibilities under section
210(c)(8)(H) of the Dodd-Frank Act. The
Secretary is seeking comment on all
aspects of the Proposed Rules.
The Proposed Rules provide that the
compliance date for most of the
provisions will be the day that is 270
days after a records entity becomes
subject to the final rule. Thus, for
entities that would be subject to the
final rule on its effective date, the
compliance date would be the day that
is 270 days after the effective date of the
final rule (which is 330 days after the
date of publication). However, one
aspect of the Proposed Rules will
require compliance in 60 days.
Specifically, on the effective date of the
final rule, a records entity must provide
up-to-date contact information to the
FDIC and each of its PFRAs. A financial
company that becomes a records entity
after the effective date of the final rule
would be required to provide such
portfolio location identifiers, certain affiliates of the
institution and the institution’s counterparties to
QFC transactions, contact information and
organizational charts for key personnel involved in
QFC activities, and contact information for vendors
for such activities; and copies of key agreements
and related documents for each QFC.
14 12 U.S.C. 1821(e)(8)(H).
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
contact information within 60 days of
becoming a records entity.
II. Background—QFCs and
Receivership
A QFC is a type of financial contract
and is defined in section 210(c)(8) of the
Act. As further described below, QFCs
are treated differently than other types
of contracts in the event of the failure
of a financial company.15 The treatment
afforded to QFCs under Title II parallels
the treatment afforded to QFCs under
section 11(e) of the FDIA.16
Under section 210(c)(8), QFCs include
five specific types of financial contracts:
securities contracts, commodity
contracts, forward contracts, repurchase
agreements, and swap agreements.17
The FDIC is empowered to define other
similar agreements as QFCs by rule,
regulation or order.18 In addition, a
master agreement that governs any
contracts in these five categories is
treated as a QFC.19 Security agreements,
guarantees, credit enhancements or
reimbursement obligations that relate to
QFCs are also defined to be QFCs.20 All
swaps and security-based swaps defined
in Title VII of the Act qualify as QFCs
under section 210(c)(8).
The filing of a bankruptcy petition or
the appointment of the FDIC as receiver
triggers an automatic stay that precludes
a party to most types of contracts with
an insolvent company from taking
actions under that contract.21 Therefore,
most types of contracts with a financial
company cannot be terminated based
solely upon the appointment of the
FDIC as receiver.22 Under Title II, the
FDIA, and other U.S. insolvency
statutes, however, a party to a QFC with
an insolvent entity can exercise any of
its contractual rights to terminate such
QFC, offset or net any amounts due, and
apply any pledged collateral for
payment of such amounts subject to
certain conditions.23 Further, under
Title 11 of the United States Bankruptcy
Code (‘‘Bankruptcy Code’’), this right to
terminate is immediate upon initiation
of bankruptcy proceedings.24 However,
Title II and the FDIA do not permit
counterparties to exercise a contractual
right of termination based solely upon
15 12
U.S.C. 5390(c)(8), (9), and (10).
U.S.C. 1821(e).
17 12 U.S.C. 5390(c)(8)(D)(i). The term ‘‘securities
contract’’ includes contracts ‘‘for the purchase, sale
or loan of a security[.]’’ 12 U.S.C. 5390(c)(8)(D)(ii).
18 12 U.S.C. 5390(c)(8)(D)(i).
19 12 U.S.C. 5390(c)(8)(D)(viii).
20 12 U.S.C. 5390(c)(8)(D)(ii)–(vi).
21 See 11 U.S.C. 361; 12 U.S.C. 1821(e)(13); 12
U.S.C. 5390(c)(13).
22 12 U.S.C. 5390(c)(13) and 12 U.S.C.
1821(e)(13)(A).
23 See e.g.,12 U.S.C. 5390(c)(8)(A).
24 11 U.S.C. 362(b)(6), (7) and (17).
16 12
PO 00000
Frm 00004
Fmt 4701
Sfmt 4702
insolvency or the appointment of a
receiver until after 5 p.m. (eastern time)
on the first business day following the
appointment of the FDIC as receiver,25
nor do they permit counterparties to
terminate a QFC because of its transfer
to a bridge entity or another financial
institution.26
After its appointment as receiver and
prior to the close of the 5 p.m. window,
the FDIC has three options in managing
a covered financial company’s QFC
portfolio. With respect to all of the
covered financial company’s QFCs with
a particular counterparty, and its
affiliates, the FDIC may:
(1) Transfer the QFCs to another
institution, including a bridge financial
company established by the FDIC; 27
(2) Retain the QFCs within the
receivership and allow the counterparty
to terminate; or
(3) Retain the QFCs within the
receivership, disaffirm or repudiate the
QFCs, and pay compensatory
damages.28
Within certain constraints,29 the FDIC
can take different approaches to QFCs
with different counterparties. However,
the receiver’s power to transfer or
repudiate a QFC is limited. If the FDIC
as receiver desires to transfer any QFC
with a particular counterparty, it must
transfer all QFCs between the covered
financial company and such
counterparty and any affiliate of such
counterparty to a single financial
institution. Similarly, if the FDIC
desires to repudiate any QFC with a
particular counterparty, it must
repudiate all QFCs between the covered
financial company and such
counterparty and any affiliate of such
counterparty as a group.30
Transfer: The FDIC may transfer a
QFC to any other financial institution
not subject to a bankruptcy or
insolvency proceeding. Such financial
25 12 U.S.C. 1821(e)(10)(B)(i) and 12 U.S.C.
5390(c)(10)(B)(i). This time frame in which QFC
counterparties are stayed from acting is in contrast
to parties to other contracts with a failed financial
company, who are stayed from terminating such
other contracts for 90 days.
26 Id. There is an exception to this general rule
in section 210(c)(8)(G) with respect to cleared QFCs,
which provides in relevant part that a clearing
organization would not be stayed from exercising
its rights to liquidate all positions and collateral of
the covered financial company under the
company’s QFCs in certain circumstances. See 12
U.S.C. 5390(c)(8)(G).
27 12 U.S.C. 5390(c)(9). The FDIC as receiver of an
insolvent financial company may establish a bridge
financial company and transfer to such company
assets and certain liabilities as the FDIC generally
deems appropriate. 12 U.S.C. 5390(h).
28 12
U.S.C. 5390(c)(11).
U.S.C. 5390(c)(11)(A).
30 For transfer, see 12 U.S.C. 5390(c)(9)(A); for
repudiation, see 12 U.S.C. 5390(c)(11).
29 12
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
institutions include, but are not limited
to, banks, foreign banks,31 and bridge
financial companies operated by the
FDIC. If the FDIC as receiver transfers a
QFC to a financial institution within the
specified period of time, the
counterparty cannot exercise its
contractual right to terminate the QFC
solely by reason of or incidental to the
appointment of the FDIC as receiver, or
the insolvency or financial condition of
the covered financial company.32 If the
FDIC as receiver decides to transfer any
QFCs, it must take steps reasonably
calculated to provide notice of the
transfer of the QFCs of the failed
financial company to the relevant
counterparties.33 The counterparties
must accept the transferee as a
counterparty and cannot terminate the
QFC solely by reason of such transfer.34
Disaffirmance or Repudiation: The
FDIC as receiver may disaffirm or
repudiate a QFC within a reasonable
period of time if the receiver determines
that the contract is burdensome.35 If the
receiver does not elect to transfer all
QFCs with a given counterparty (and
with its affiliates), under the law the
receiver has a ‘‘reasonable time’’ in
which to repudiate such QFCs.
However, as a practical matter, the
receiver must promptly decide whether
to repudiate all QFCs involving such
counterparty (and its affiliates), in order
to minimize the potential for an adverse
change in the market value of such
QFCs. For example, although
counterparties to QFCs that are not
transferred are not required to terminate
the contracts immediately after the
expiration of a one-business day stay,36
they may decide to exercise any
contractual right they have to terminate
in order to protect against the potential
adverse change in the market value of
the QFCs (especially if the
counterparties have sufficient collateral
31 The FDIC as receiver of a covered financial
company may not transfer QFCs to a foreign bank
unless, under applicable law, the contractual rights
of the parties to such QFCs and any netting
contracts, security agreements or arrangements or
other credit enhancements related to any such QFCs
are enforceable substantially to the same extent as
under 12 U.S.C. 5390. 12 U.S.C. 5390(c)(9)(B).
32 12 U.S.C. 5390(c)(10)(B) and 12 U.S.C.
5390(c)(16).
33 See 12 U.S.C. 5390(c)(10)(B).
34 12 U.S.C. 5390(c)(10)(B).
35 12 U.S.C. 5390(c)(1).
36 See 12 U.S.C. 5390(c)(8)(F)(ii), which provides
that any payment or delivery obligations otherwise
due from a party pursuant to the QFC shall be
suspended from the time at which the FDIC is
appointed as receiver under the earlier of (I) the
time at which such party receives notice that such
contract has been transferred pursuant to section
210(c)(10)(A), or (II) 5 p.m. (eastern time) on the
business day following the date of the appointment
of the FDIC as receiver.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
to cover the termination value of the
QFCs).
If the receiver repudiates the QFCs, it
must pay actual direct compensatory
damages,37 which may include the
normal and reasonable costs of cover or
other reasonable measure of damages
used in the industry for such claims
(after giving effect to any contractual
netting rights of the counterparty). Such
damages are calculated as of the date of
repudiation.38
Retention: The FDIC’s retention of a
QFC in the receivership would allow a
counterparty to terminate the contract
after 5 p.m. (eastern time) on the first
business day after the appointment of
the FDIC as receiver.39 If the
counterparty then terminates QFCs with
the financial company, the counterparty
may exercise any contractual right it
may have to net any payment the
counterparty owes to the receivership
against any payment owed by the
receivership to the counterparty with
respect to QFCs as set forth in any
netting agreement.
In order to assess by 5 p.m. on the
business day following the date of its
appointment as receiver of a financial
company its options to retain and allow
the counterparty to terminate, retain and
disaffirm or repudiate, or transfer QFCs,
the FDIC needs detailed information
about the company’s QFCs. To make a
well-informed decision on these three
options, the FDIC needs access to the
information required to be maintained
under the Proposed Rules. The
information must be sufficient to allow
the FDIC to estimate the financial and
operational impact on the covered
financial company or its affiliated
financial companies of the receiver’s
decision to transfer, repudiate or retain
the QFCs. It must also allow the FDIC
to assess the potential impact that such
decisions may have on the financial
markets as a whole.
Under the Act, the FDIC as receiver
has additional powers with respect to
contracts of subsidiaries or affiliates of
a covered financial company that are
guaranteed or otherwise supported by or
linked 40 to such covered financial
37 The receiver’s payment obligation is subject to
the claims process of 12 U.S.C. 5390(a)(2).
Therefore, if the counterparty does not have a
perfected security interest in collateral sufficient to
satisfy its claim, the counterparty might not receive
cash payment in full.
38 12 U.S.C. 5390(c)(3).
39 12 U.S.C. 5390(c)(10)(B)(i).
40 12 U.S.C. 5390(c)(16). Section 210(c)(16) does
not define the terms ‘‘linked’’ to, or ‘‘guaranteed or
supported’’ by, the covered financial company. As
explained later in this preamble, the Proposed
Rules include definitions of ‘‘guaranteed or
supported’’ and ‘‘linked’’ that are consistent with
the definitions of such terms in the FDIC final rule
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
969
company.41 Such contracts can be
enforced by the FDIC as receiver
notwithstanding the insolvency,
financial condition, or receivership of
the financial company. Contracts which
are guaranteed or otherwise supported
by the covered financial company
remain enforceable by the FDIC if the
FDIC transfers any such guaranty or
other support and all related assets and
liabilities to a bridge financial company
or third-party financial institution not
subject to a bankruptcy or insolvency
proceeding within the period of time
provided under section 210(c)(10), or if
the FDIC provides adequate
protection 42 with respect to the support
of such contracts.43 The FDIC as
receiver may also need to make sure that
affiliates 44 of the covered financial
company continue to perform their QFC
obligations in order to preserve the
critical operations of the covered
financial company and its affiliates. In
such cases, the FDIC may need to
provide additional liquidity, support, or
collateral to the affiliates to enable them
to meet collateral obligations and
generally perform their QFC
obligations.45 The Proposed Rules
therefore would impose recordkeeping
requirements on affiliated financial
companies in a corporate group because
the Secretary, as informed by the FDIC,
implementing section 210(c)(16) of the Orderly
Liquidation Authority provisions of the Dodd-Frank
Act. The FDIC published a final rule addressing all
aspects of section 210(c)(16) on October 16, 2012.
77 FR 63205 (‘‘FDIC Final Rule’’).
41 12 U.S.C. 5390(c)(16). This section provides for
the enforcement of contracts guaranteed by a
financial company subject to orderly liquidation
under Title II.
42 Under the FDIC final rule, contracts ‘‘supported
by’’ a covered financial company may also be
enforced by providing ‘‘adequate protection’’ either
in the alternative to transferring any related support
or in combination with a partial transfer of such
support. Adequate protection, with respect to the
covered financial company’s support of the
obligations under such contracts, means: (1) making
a cash payment or periodic cash payments to
counterparties to the extent that the failure to cause
the assignment and assumption of the covered
financial company’s support and related assets and
liabilities causes a loss to the counterparties; (2)
provision by the FDIC as receiver of a guarantee of
the subsidiary or affiliate’s obligations; or, (3)
provision of relief that will result in realization by
the counterparty of the ‘‘indubitable equivalent of
the covered financial company’s support of such
obligations or liabilities.’’ The definition of the term
‘‘adequate protection’’ is consistent with the
definition under section 361 of the United States
Bankruptcy Code. 77 FR 63205.
43 12 U.S.C. 5390(c)(16)(A)(ii). See also 77 FR
63205.
44 The term ‘‘affiliate’’ is defined in § 148.2(a) of
the Proposed Rules as any entity that controls, is
controlled by, or is under common control with a
financial company or counterparty.
45 See 12 U.S.C. 5384(d). Section 204(d) of the Act
authorizes the FDIC, for example, to make loans to
and guarantee the obligations of the covered
financial company and its covered subsidiaries.
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
970
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
believes that the information would be
necessary or appropriate in assisting the
FDIC in exercising its rights as receiver
for a financial company with affiliates.
In addition, the imposition of
recordkeeping requirements on
affiliated financial companies could also
assist the FDIC as receiver of one or
more of such affiliated financial
companies of the Act in fulfilling its
obligations under section 210(c)(8), (9),
or (10).46
Under Title II, the FDIC may become
receiver for financial companies of a
substantial size or complexity. These
large and complex companies and
certain of their affiliates that enter into
QFCs may hold large and complex
portfolios of QFCs. Such financial
companies and their affiliates often have
counterparties that are themselves
members of large, complex, and
interconnected corporate financial
groups. Therefore QFCs tend to increase
the interconnectedness of the financial
system and systemic risk. They are also
an important and integral component of
a Title II resolution, presenting multiple
challenges to an orderly liquidation
process. Given the limited postreceivership time frame allowed by Title
II for the FDIC to make decisions
regarding QFCs, it is important that the
FDIC has adequate time to obtain QFC
data, conduct necessary analysis, and
make informed decisions on a QFC
portfolio.
Therefore, the Secretary in
consultation with the FDIC is proposing
the Proposed Rules described below.
The Proposed Rules are similar to the
FDIC’s Part 371 but the information
requirements of the Proposed Rules are
more extensive. Unlike the FDIC’s Part
371 (which requires that only banks in
‘‘troubled condition’’ maintain records
of QFCs) the Proposed Rules do not
contain such a ‘‘troubled financial
condition’’ trigger. The recordkeeping
requirements of the Proposed Rules
have been informed by the FDIC’s
experience in dealing with multiple
QFC portfolios of insured depository
institutions. The data requirements were
also informed by efforts to standardize
regulatory data.
Given the short time frame for the
FDIC to make decisions regarding a QFC
portfolio of significant size or
complexity, the Proposed Rules would
also require the use of an updated and
standardized format to allow the FDIC
to obtain and process the large amount
of QFC information quickly. In the
absence of updated and standardized
46 For example, the FDIC could be appointed as
receiver of an affiliated financial company under
section 210(a)(1)(E) of the Act.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
information, it is possible that QFCs
could be left in the receivership, when
transfer to a solvent financial institution
or a bridge financial company would be
a preferred course of action. The
absence of QFC data may reduce the
FDIC’s flexibility in managing the QFC
portfolio, and may increase systemic
risk.
However, to reduce the burdens on
financial companies, the Proposed Rules
provide that upon receipt of a written
recommendation from the FDIC,
prepared in consultation with the
primary financial regulatory agencies for
the applicable records entities, the
Secretary may grant conditional or
unconditional exemptions as the
Secretary determines to be necessary or
appropriate. Such exemptions could
include a conditional exemption to
allow for a different recordkeeping
format than that set forth in the
Proposed Rules. For example, financial
companies are required to report some
QFC data to swap data repositories
(‘‘SDRs’’),47 and some data may be
available through derivatives clearing
organizations registered with the CFTC
or clearing agencies registered with the
SEC (collectively referred to in this
release as ‘‘clearing organizations’’).48
The Secretary notes that the FDIC would
need to be able to manipulate and
analyze such data to determine the
effect of FDIC decisions under Title II
with respect to a covered financial
company’s QFC portfolio.
• Table A–1—Position-Level Data
• Table A–2—Counterparty Collateral
Data
• Table A–3—Legal Agreements
• Table A–4—Collateral Detail Data
The discussion in this section of the
release is based on the organization of
the Proposed Rules and the Appendix is
discussed in a separate subsection
below. The Secretary asks questions and
solicits comment in each subsection
with respect to the related parts of the
Proposed Rules or the Appendix.
A. Scope, Purpose, Effective Date and
Compliance Dates
Section 148.1(a) of the Proposed Rules
defines the scope of the rules and
provides that the rules apply to each
financial company that is a ‘‘records
entity.’’ Section 148.1(b) explains the
purpose of the rules. Section 148.1(c)
sets forth the rule’s effective and
compliance dates. The Proposed Rules
are discussed below, followed by the
Secretary’s questions regarding their
subject matter.
1. Scope
a. Key Definitions
The scope of the Proposed Rules is
established by certain key definitions
which determine the entities that would
be subject to the rules. Specifically
section 148.1(a) of the Proposed Rules
provides that the rules would apply to
any ‘‘financial company’’ that is a
‘‘records entity’’ as those terms are
defined in the Proposed Rules. The
III. The Proposed Rules
definitions of ‘‘financial company,’’
The following section describes the
requirements in the Proposed Rules and ‘‘records entity,’’ and other related
definitions are explained below,
the rationale underlying the
followed by an illustrative discussion of
requirements. The Proposed Rules set
the records entities within a U.S. bank
forth the general requirements for
holding company structure, a summary
financial companies, while the detailed
of the application of the Proposed Rules
lists of the records that would be
to clearing organizations, and a
required to be maintained are provided
discussion of the records entities that
in the Appendix in the Proposed Rules.
may come within the scope section of
The Proposed Rules are organized
the Proposed Rules.
into four parts:
Financial Company: The Proposed
• Section 148.1 Scope, purpose,
Rules incorporate the definition of a
effective date, and compliance dates
‘‘financial company’’ set forth in section
• Section 148.2 Definitions
• Section 148.3 Form, availability and 201(a)(11) of the Dodd-Frank Act.
Entities that are not included in the
maintenance of records
section 201(a)(11) definition of
• Section 148.4 Content of records
The Appendix in the Proposed Rules
‘‘financial company’’ would not be
list the records that would be required
included in the definition of ‘‘records
to be maintained and provide the file
entity’’ and, therefore, would not be
structure for the QFC recordkeeping
subject to the rules. Entities that are
requirements. The Appendix is
included in the section 201(a)(11)
organized as follows:
definition of ‘‘financial company’’
would be subject to the rules if they also
47 Not all QFC data would be reported under Title
meet the other criteria in the definition
VII of the Dodd-Frank Act. Some QFCs may not
of records entity. In addition, the
have central reporting repositories.
definition of ‘‘covered financial
48 Clearing organizations would include central
company’’ in section 201(a)(8)(B) of the
counterparties and security-based swap clearing
organizations.
Dodd-Frank Act excludes insured
PO 00000
Frm 00006
Fmt 4701
Sfmt 4702
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
depository institutions,49 which as a
result are ineligible for orderly
liquidation under Title II. Thus, based
on the section 201(a)(11) definition of
‘‘financial company’’ and the section
201(a)(8)(B) definition of ‘‘covered
financial company,’’ the following
entities would not be required to
maintain records under the Proposed
Rules:
• Financial companies that are not
incorporated or organized under U.S.
federal or state law;
• Farm Credit System institutions;
• Governmental entities, and
regulated entities under the Federal
Housing Enterprises Financial Safety
and Soundness Act of 1992 (‘‘FHA’’); 50
and
• Insured depository institutions.
The following financial companies
would be subject to the rules if they are
incorporated or organized under any
provision of federal law or the laws of
any State and meet the definition of
‘‘records entity’’ in the rules:
• A bank holding company;
• A nonbank financial company
supervised by the Board;
• Any company that is predominantly
engaged in activities that the Board has
determined are financial in nature or
incidental thereto for purposes of
section 4(k) of the BHC Act; and
• Any subsidiary (other than an
insured depository institution or
insurance company) of such financial
company where such subsidiary is
predominantly engaged in activities that
the Board has determined are financial
in nature or incidental thereto for
purposes of section 4(k) of the BHC
Act.51
Records Entity: Each records entity
would be required to maintain records
with respect to all of its QFCs unless
such records entity receives an
exemption under the rules.52 In
developing the definition of a records
entity, the Secretary took into
consideration factors such as financial
company size, risk, complexity,
49 12
U.S.C. 5381(a)(8)(B).
U.S.C. 4502(20). This provision, therefore,
excludes from the orderly liquidation authority of
Title II the Federal National Mortgage Association
and any affiliate thereof, the Federal Home Loan
Mortgage Corporation and any affiliate thereof, and
any Federal Home Loan Bank.
51 See 12 U.S.C. 1843(k)(4)(C).
52 Exemptions would be available as outlined in
§ 148.3(c) of the Proposed Rules. For example, the
Secretary may consent to the use of electronic
records maintained in an SDR or internally at the
records entity which are not in the format set forth
in the Appendices to the Proposed Rules if such
alternative format is sufficient to enable the FDIC
as receiver to exercise its rights and fulfill its
obligations under 12 U.S.C. 5390(c)(8), (9), or (10).
See discussion below in subsection III.3.C of this
Supplementary Information.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
50 12
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
leverage, frequency and dollar amount
of QFCs, and interconnectedness to the
financial system in addition to other
factors described herein.53 The records
entity definition would include a
financial company that is a party to an
open QFC or guarantees, supports, or is
linked to an open QFC of an affiliate
and is a member of a corporate group in
which at least one financial company
meets one of three other criteria for
being a records entity. Because affiliated
financial companies that are part of the
same corporate group may play an
important role in determining risks that
are present, the information about the
affiliates’ QFCs could assist the FDIC as
receiver. Furthermore, the FDIC has
authority to enforce the QFCs of
affiliates of covered financial
companies, the obligations of which are
guaranteed or otherwise supported by or
linked to the covered financial
company.54
A ‘‘records entity’’ is defined in
section 148.2(l) of the Proposed Rules as
a financial company that: is not an
exempt entity; is a party to an open
QFC, or guarantees, supports or is
linked to an open QFC; and meets one
of the following requirements: (a) Is
determined pursuant to 12 U.S.C. 5323
(Title I of the Dodd-Frank Act) to be an
entity that could pose a threat to the
financial stability of the United States;
(b) Is designated pursuant to 12 U.S.C.
5463 (Title VIII of the Dodd-Frank Act)
as a financial market utility 55 that is, or
is likely to become, systemically
important; or (c) Has total assets equal
to or greater than $50 billion,56 or (d) Is
a party to an open QFC or guarantees,
supports, or is linked to an open QFC
of an affiliate and is a member of a
corporate group within which at least
one affiliate meets one of the
requirements in (a), (b), or (c).
The Secretary has adequately
considered the factors referenced in
53 See
12 U.S.C. 5390(c)(8)(H)(iv).
U.S.C. 5390(c)(16).
55 See Title VIII, ‘‘Payment, Clearing, and
Settlement Supervision Act of 2010.’’ 12 U.S.C.
5461, et seq. A financial market utility is defined
in section 802(6) of Title VIII as any person that
manages or operates a multilateral system for the
purpose of transferring, clearing, or settling
payments, securities, or other financial transactions
among financial institutions or between financial
institutions and such person. 12 U.S.C. 5461(6)(A).
56 Total assets would be determined based on the
most recent year-end consolidated statements of
financial condition filed with a primary financial
regulatory agency. For financial companies that are
not required to file such statements, total assets
would be determined based on the consolidated
balance sheet for the most recent fiscal year-end. An
entity, such as an investment adviser, that acts as
agent on behalf of a client and is not a party to that
client’s QFC or does not support, guarantee or is not
otherwise linked to that client’s QFC would not be
subject to the rule.
54 12
PO 00000
Frm 00007
Fmt 4701
Sfmt 4702
971
section 210(c)(8)(H)(iv) in developing
the scope of the definition of records
entity. The Secretary has decided to
include in the scope of the definition of
records entity those financial companies
that: (1) the Council determines could
pose a threat to U.S. financial stability;
(2) the Council designates as
systemically important financial market
utilities; and (3) financial companies
that have at least $50 billion in assets,
for several reasons. First, the factors the
Council must consider in designating a
nonbank financial company as posing a
threat to financial stability under
section 113 of the Act, or a financial
market utility as systemically important
under section 804, are similar to the
factors listed in section 210(c)(8)(H)(iv).
The Council may make a determination
under section 113 if it finds that
material financial distress at the
nonbank financial company, or the
nature, scope, size, scale, concentration,
interconnectedness, or mix of the
activities of the nonbank financial
company could pose a threat to the
financial stability of the United States.57
Similarly, in making a determination
that a financial market utility is or is
likely to become systemically important,
the Council is required to consider the
effect that the failure of or a disruption
to the financial market utility would
have on critical markets, financial
institutions, or the broader financial
system.58 The Secretary believes that it
would be unnecessary to create a
different scheme for determining the
scope of financial companies subject to
recordkeeping for the purposes of this
rulemaking.59
57 Section 113 authorizes the Council to make
determinations for U.S. nonbank financial
companies and foreign nonbank financial
companies pursuant to two separate paragraphs, but
the considerations related to the financial stability
of the United States are nearly identical. See 12
U.S.C. 5323(a) and (b). A determination under
section 113 would mean that the nonbank financial
company would be subject to supervision by the
Board of Governors of the Federal Reserve System
and to enhanced prudential standards established
in accordance with Title I. See 12 U.S.C. 5365.
58 12 U.S.C. 5463(a)(2)(D).
59 The first proposed prong under § 148.2(l)(3) of
the Proposed Rules includes those entities that the
Council designates as posing a threat to U.S.
financial stability. The Council takes into
consideration each of the factors expressly
referenced in section 210(c)(8)(H)(iv) as follows:
leverage of a company is expressly considered
under rule 1310.11(a)(1) and (b)(1); complexity is
addressed in a variety of ways, including under
rules 1310.11(a)(2) and (b)(2) regarding the extent
and nature of off-balance-sheet exposures;
interconnectedness to the financial system is
addressed in several of the rules including rules
1310.11(a)(3)–(5) and (b)(3)–(5); size is expressly
addressed in rules 1310.11(a)(7) and (b)(7);
frequency and dollar amount of QFCs, to the extent
relevant, is addressed through rules 1310.11(a)(9)
and (10) and (b)(9)(10); and risk is addressed
E:\FR\FM\07JAP4.SGM
Continued
07JAP4
972
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
The Secretary also believes that the
$50 billion threshold is a useful means
for identifying entities that are of a
sufficient size that they could
potentially be considered for orderly
liquidation under Title II, and therefore
should be incorporated in the definition
of a records entity. A $50 billion asset
threshold has been separately
established for similar purposes under
the Dodd-Frank Act.60 In particular, the
Council applies a $50 billion threshold
as an initial evaluation tool for
determining whether a nonbank
financial company could pose a threat
to the financial stability of the United
States and should be subject to
heightened supervision under Title I of
the Dodd-Frank Act, citing the potential
for these types of firms to pose a threat
to U.S. financial stability.61
Finally, a nonbank financial company
supervised by the Board, a designated
financial market utility, or a financial
company (including a bank holding
company) with total assets of $50 billion
or more are the types of financial
companies that potentially would be the
most likely to be considered for orderly
liquidation under Title II. Therefore, the
Secretary proposes including this set of
financial companies in the definition of
records entity for purposes of the
Proposed Rules. The definition of
records entity is thus designed to reduce
directly and indirectly through various rules,
including for instance rules 1310.11(a)(1), (a)(2),
(a)(10) and (11), (b)(1), (b)(2) and (b)(10) and (11).
See 12 CFR part 1310. See also 77 FR 21637. The
second proposed prong under § 148.2(l)(3) of the
Proposed Rules includes those entities that the
Council designates as systemically important
financial market utilities under 12 CFR part 1320.
The Council’s rulemaking regarding financial
market utilities takes into consideration various
factors, which are directly or effectively the factors
referenced in section 210(c)(8)(H)(iv). See 12 CFR
1320.10. See also 76 FR 44763. In the third
proposed prong of § 148.2(l)(3) of the Proposed
Rules, the stand-alone test of assets equal to or
greater than $50 billion is used because that size
threshold, by itself, together with other aspects of
the definition of records entity is sufficient to
differentiate financial companies or their corporate
groups that might be subject to orderly liquidation
under Title II. The test in the fourth proposed prong
of § 148.2(l)(3) of the Proposed Rules includes a
requirement that the entity be a member of a
corporate group in which at least one financial
company meets one of the first three prongs, thus
taking the various factors into account. To the
extent a general or specific exemption from the
rules may be necessary or appropriate, it is
expected that the Secretary would consider these
factors in determining whether to grant an
exemption.
60 12 U.S.C. 5365(a).
61 See Authority to Require Supervision and
Regulation of Certain Nonbank Financial
Companies. 12 CFR part 1310. In adopting this
threshold, the Council noted that it is consistent
with the Dodd-Frank Act threshold of $50 billion
in assets for subjecting bank holding companies to
enhanced prudential standards. 77 FR 21637,
21661.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
recordkeeping burdens by only
capturing those financial companies
with QFC positions for which the FDIC
is most likely to be appointed as
receiver. It does not, however, capture
an entity, such as an investment adviser,
that acts as agent on behalf of a client
and is not a party to or does not support,
guarantee or is not otherwise linked to
that client’s QFC. These criteria would
serve to exclude from the scope of the
rule small financial company corporate
groups that are unlikely to be subject to
the orderly liquidation authority of Title
II.
Exempt Entity: An exempt entity that
would be excluded from the definition
of ‘‘records entity’’ and, therefore, the
scope of the rules is defined in section
148.2(e) of the Proposed Rules as:
(1) An insured depository institution as
defined in 12 U.S.C. 1813(c)(2);
(2) A subsidiary of an insured depository
institution that is not a functionally regulated
subsidiary as defined in 12 U.S.C. 1844(c)(5),
a security-based swap dealer as defined in 15
U.S.C. 78c(a)(71), or a major security-based
swap participant as defined in 15 U.S.C.
78c(a)(67); or
(3) A financial company that is not a party
to a QFC and controls only exempt entities
as defined in clause (1) of this definition.
Insured depository institutions are
proposed to be exempt because they are
excluded from the definition of covered
financial company and thus from the
scope of Title II regardless of whether
they are also a major swap or securitybased swap participant or a swap or
security-based swap dealer.62 In
addition, subsidiaries of an insured
depository institution which are
supervised on a consolidated basis with
the insured depository institution are
also proposed to be exempt for purposes
of consistency with the insured
depository institution exemption.
However, functionally regulated
subsidiaries, security-based swap
dealers, and major security-based swap
participants are not supervised on a
consolidated basis with the parent
insured depository institution and are
not already required to maintain records
under Part 371, as discussed above.
These subsidiaries meet the definition
of financial company in Title II, and
would be required to comply with the
recordkeeping requirements of the rules
if they are ‘‘records entities.’’ Finally, a
financial company that controls only
insured depository institutions and is
not itself a party to a QFC is also
proposed to be exempt for purposes of
consistency with the insured depository
institution exemption.
62 12
PO 00000
U.S.C. 5381(a)(8)(B).
Frm 00008
Fmt 4701
Sfmt 4702
Guaranteed, Supported, or Linked:
Under section 210(c)(16), the FDIC as
receiver for the covered financial
company may enforce contracts of
subsidiaries or affiliates that are
‘‘guaranteed,’’ ‘‘supported’’ by, or
‘‘linked’’ to the covered financial
company. However, section 210(c)(16)
does not define these terms. The
Proposed Rules thus include a
definition of ‘‘guaranteed or supported’’
and a definition of ‘‘linked,’’ each of
which is consistent with the definition
of similar terms in the FDIC’s final rule
implementing section 210(c)(16) of the
Orderly Liquidation Authority
provisions of the Dodd-Frank Act.63
Under the FDIC final rule, a contract is
‘‘linked’’ to a covered financial
company if it contains a ‘‘specified
financial condition clause,’’ which is
any provision that permits a contract
counterparty to terminate, accelerate,
liquidate, or exercise any other remedy
under any contract to which the
subsidiary or affiliate is a party or to
obtain possession of or exercise control
over any property of the subsidiary or
affiliate or affect any contractual rights
of the subsidiary or affiliate based on
enumerated conditions related to the
insolvency or financial condition of the
covered financial company. The FDIC
final rule also defines the term
‘‘support’’ as undertaking any of the
following for the purpose of supporting
the contractual obligations of a
subsidiary or affiliate of a covered
financial company: guaranteeing,
indemnifying, or undertaking to make
any loan or advance to or on behalf of
the subsidiary or affiliate; undertaking
to make capital contributions to the
subsidiary or affiliate; or being
contractually obligated to provide any
other financial assistance to the
subsidiary or affiliate. In some
instances, ‘‘support’’ may itself
constitute a QFC.64
The terms ‘‘linked’’ and ‘‘guarantees,
supports’’ are also used to define the
financial companies that are records
entities under the Proposed Rules. A
financial company that guarantees or
supports open QFCs would be a records
entity, provided that the other
conditions of the definition are met,
because its exposure is connected to the
exposure of the financial company that
is the counterparty to the QFC. A
63 See
77 FR 63205 (October 16, 2012).
e.g., section 210(c)(8)(D)(ii)(XII) (defining
‘‘securities contract’’ to include ‘‘any security
agreement or arrangement or other credit
enhancement related to any agreement or
transaction referred to in this clause, including any
guarantee or reimbursement obligation in
connection with any agreement or transaction
referred to in this clause’’).
64 See,
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
financial company that is linked to an
open QFC would also be a records
entity, provided that the other
conditions of the definition are met,
because its financial condition or other
circumstances are connected to such
counterparty. Moreover, the financial
company providing support or a
guarantee is exposed, along with,
depending on the circumstances, its
corporate group, to the risk of
termination of QFCs. Therefore, the
Proposed Rules would require each
records entity that guarantees or
supports QFCs to keep records with
respect to all such guaranteed or
supported QFCs. The records entity that
links its QFCs to another entity would
be responsible for keeping records
related to the specified financial
condition clause. In each case, a records
entity would be responsible for
obtaining from its affiliates all
information necessary to enable it to
maintain these records.
Including affiliated financial
companies as records entities under the
Proposed Rules is necessary: (1) To
assist the FDIC in exercising its right to
enforce contracts of subsidiaries and
affiliates under section 210(c)(16), and
fulfilling its obligations under section
210(c)(9) and section 210(c)(10) with
respect to the timing and notification of
the transfer of any guarantee or other
support and related assets and liabilities
in connection with any agreement or
transaction referred to in any such QFC;
and (2) to assist the FDIC in fulfilling its
obligations under section 210(c)(9) and
section 210(c)(10) in the event the FDIC
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
is appointed as receiver of an affiliated
financial company. In connection with
the transfers and notifications under
section 210(c)(9) and section 210(c)(10),
the FDIC will need the same
information with respect to such QFCs
(including guaranteed or supported
QFCs) of an affiliate as it does with
respect to QFCs to which the financial
company was a party.
Affiliate, Subsidiary, and Control: The
definitions of the terms ‘‘subsidiary’’
and ‘‘affiliate’’ in the Proposed Rules are
consistent with the definitions given to
such terms in the Dodd-Frank Act.
Section 2(18) of the Act provides that
these terms will have the same
meanings as in section 3 of the FDIA (12
U.S.C. 1813). Under the FDIA, the term
‘‘subsidiary’’ is broadly defined as ‘‘any
company which is owned or controlled
directly or indirectly by another
company.’’ Similarly, the term
‘‘affiliate’’ is defined by reference to the
BHC Act, 12 U.S.C. 1841(k) as ‘‘any
company that controls, is controlled by,
or is under common control with
another company.’’
The definition of ‘‘control’’ is
provided in the FDIA, which in turn,
refers to the definition provided in the
BHC Act, 12 U.S.C. 1841(a). The
Proposed Rules would define ‘‘control’’
to include a company that directly or
indirectly or acting through one or more
persons owns, controls, or has the
power to vote 25 percent or more of any
class of voting securities of the
company, controls in any manner the
election of a majority of the directors or
trustees of the company, or must
consolidate another entity for financial
PO 00000
Frm 00009
Fmt 4701
Sfmt 4702
973
or regulatory reporting purposes. The
first two prongs of this definition are
consistent with the BHC Act definition.
The third prong reflects the fact that, in
certain situations, a controlling interest
may be achieved through arrangements
that do not involve voting interests,65
and, unlike the BHC Act definition,
provides an objective test that does not
require a determination by the Board.
Non-U.S. Entities. Because the
Proposed Rules would incorporate the
Title II definition of ‘‘financial
company,’’ the Proposed Rules apply
only to entities incorporated or
organized in the United States that are
considered records entities under the
Proposed Rules. For example, a U.K.incorporated London affiliate of a U.S.
broker-dealer would not be a records
entity because it is a separate legal
entity that is not incorporated or
organized within the United States.
b. Records Entities Within a U.S.
Holding Company
Figure 1 below illustrates how the
definition of financial company affects
whether various affiliates in a U.S.
holding company corporate group
would qualify under the Proposed Rules
as records entities based on the
application of the definition of financial
company in the Dodd-Frank Act and the
Proposed Rules. The holding company
and some affiliates would qualify as
records entities as shown below, while
the other affiliates would not.
65 See, e.g., Financial Accounting Standards
Board, Statement of Financial Accounting
Standards No. 167 (2009).
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
c. Clearing Organizations
The Proposed Rules would not
exclude from their scope any records
entity that is a clearing organization
with respect to derivatives cleared for
its members. As part of fulfilling its
responsibilities, a clearing organization
must keep, on a near real-time basis,
thorough and well-organized records of
the contracts with each of its members.
The FDIC, as receiver for a clearing
organization under Title II, would have
access to this information to analyze
clearing organization positions. Taking
into consideration a clearing
organization’s functions and that its role
is to interpose itself between
counterparties to transactions, some of
the data elements that would be
required by the Proposed Rules may not
be relevant for clearing organizations.
The Appendix to the Proposed Rules
provides that a records entity may leave
an entry blank or insert N/A in a data
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
field that does not apply to a given QFC
transaction or agreement.
Accordingly, the Secretary seeks
comment on the following: (i) Whether
the Proposed Rules should provide a
different set of data requirements for
clearing organizations and/or for
centrally cleared transactions; (ii)
whether such different data elements
should contain fields in addition to
those included in Tables A–1 through
A–4 of the Appendix in the Proposed
Rules, should exclude some of the fields
listed in Tables A–1 through A–4, or
some combination of the two; and (iii)
whether any required data set should be
maintained in a form or fashion
different from the format contained in
the Proposed Rules. The Secretary seeks
comment on whether, and if so, how
best to modify those data elements and
general recordkeeping requirements set
forth in the Proposed Rules with respect
to clearing organizations and/or
centrally cleared transactions. For
PO 00000
Frm 00010
Fmt 4701
Sfmt 4702
example, should the Secretary establish
a different set of data elements, data
format, or other general recordkeeping
requirements for clearing organizations
and/or centrally cleared transactions? If
yes, how should the format and the
content of data fields listed in Tables 1–
4 of the Appendix in the Proposed Rules
be modified for clearing organizations?
Which fields should be deleted,
modified, or replaced with other data
fields? Are there any data fields that
should be added for clearing
organizations and/or centrally cleared
transactions?
Upon the written recommendation of
the FDIC, prepared in consultation with
the primary financial regulatory
agencies for the applicable records
entities, the Secretary may also issue
exemptions of general applicability to
address the issues that are relevant to
clearing organizations. In addition, the
Secretary notes that for data elements
and recordkeeping requirements that
E:\FR\FM\07JAP4.SGM
07JAP4
EP07JA15.000
974
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
may adversely affect a specific clearing
organization, rather than all clearing
organizations, the specific exemption
process set forth in the Proposed Rules
would be available. The decision to
grant such an exemption could be
conditioned upon the ability of the
clearing organization to demonstrate
and ensure that appropriate records are
kept.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
d. Scope of Proposed Rules
The ‘‘scope’’ subsection of the
Proposed Rules provides that the rules
apply to each entity that qualifies as a
records entity. Section 210(c)(8)(H) of
the Dodd-Frank Act gives the Secretary
broad flexibility in determining the
scope of the recordkeeping requirements
based on factors that are deemed
necessary or appropriate in order to
assist the FDIC as a receiver for a
covered financial company in being able
to exercise its rights and fulfill its
obligations under section 210(c)(8), (9)
or (10) of the Dodd-Frank Act. Section
210(c)(8)(H) also requires the
regulations to differentiate among
financial companies, as appropriate, by
taking into consideration their size, risk,
complexity, leverage, frequency and
dollar amount of QFCs, and
interconnectedness to the financial
system and any other factors deemed
appropriate. As discussed earlier, the
Secretary has complied with these
requirements.
The Secretary anticipates that records
entities would include the following
types of financial companies (i) brokerdealers, investment advisers, investment
companies,66 security-based swap
dealers, security-based swap
participants, and clearing agencies; 67
66 Each individual series of a registered
investment company offering multiple series would
be deemed to be a separate financial company for
purposes of these rules. See Investment Company
Act Release No. 7276 (Aug. 8, 1972) published at
37 FR 17384 (Aug. 26, 1972) (‘‘The individual series
of such a [registered open-end investment]
company are, for all practical purposes, separate
investment companies. Each series of stock
represents a different group of stockholders with an
interest in a segregated portfolio of securities.’’).
67 Not all of these entities would qualify as
records entities subject to the Proposed Rules
because of conditions in the definition of records
entity related to asset size, systemic importance and
QFC activity. ‘‘Financial company’’ includes any
company that is incorporated or organized under
any provision of federal law or the laws of any state
and is predominantly engaged in activities that the
Board of Governors has determined are financial in
nature for purposes of section 4(k) of the Bank
Holding Company Act of 1956. 12 U.S.C.
5381(a)(11). Activities that are ‘‘financial in nature’’
include ‘‘providing financial, investment, or
economic advisory services, including advising an
investment company’’ and ‘‘issuing or selling
instruments representing interests in pools of assets
. . .’’ and ‘‘underwriting, dealing in, or making a
market in securities.’’ 12 U.S.C. 1843(k)(4).
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
(ii) a bank holding company or bank
holding company subsidiary (that is not
an insured depository institution or
other type of exempt entity); a savings
and loan holding company or a savings
and loan holding company subsidiary
(that is not an insured depository
institution or other type of exempt
entity); a U.S. affiliate of a foreign bank;
a noninsured state member bank; an
agency or commercial lending company
other than a federal agency; any
organization organized and operated
under section 25A of the Federal
Reserve Act or operating under section
25 of the Federal Reserve Act; (iii) any
entity that the Council has determined
to be either (A) a nonbank financial
company that could pose a threat to the
financial stability of the United States
pursuant to 12 U.S.C. 5323 or (B) a
financial market utility that is, or is
likely to become, systemically important
pursuant to 12 U.S.C. 5463; (iv)
subsidiaries of State non-member
insured banks that are not supervised on
a consolidated basis with the State nonmember insured bank, or financial
companies that are not supervised by a
PFRA.
2. Purpose
Section 148.1(b) of the Proposed
Rules provides that the purpose of the
rules is to establish QFC recordkeeping
requirements for a records entity in
order to assist the FDIC as receiver for
a covered financial company.
3. Effective Date and Compliance Dates
Section 148.1(c) of the Proposed Rules
provides that the rule would become
effective 60 days after publication of the
final rule in the Federal Register.
Section 148.1(d) of the Proposed Rules
provides that each entity that
constitutes a records entity on the date
the final rule becomes effective would
be required to comply with the rule not
later than the 270th day after the date
on which the final rule becomes
effective. For a records entity that
becomes subject to the rule after it
becomes effective, compliance would be
required 270 days after such entity
becomes subject to the rule. In addition,
section 148.1(d) of the Proposed Rules
cross-references section 148.3(a)(3) of
the Proposed Rules and would require
a financial company that is a records
entity on the effective date of the final
rule to provide to each of its PFRAs and
the FDIC a point of contact responsible
for recordkeeping under the rule on the
effective date of the rule. A financial
company that becomes a records entity
after the effective date would be
required to provide a point of contact to
each of its PFRAs and the FDIC within
PO 00000
Frm 00011
Fmt 4701
Sfmt 4702
975
60 days of becoming a records entity. A
financial company that no longer
qualifies as a records entity would be
permitted to cease maintaining records
one year after it ceases to qualify as a
records entity. This determination
would be made on a rolling 12-month
basis.68 The Secretary considered
periods ranging from six months to
eighteen months, but after consultation
with the FDIC, chose to maintain a
parallel with the FDIC’s Part 371
Recordkeeping rules.
If during the one-year period such
financial company becomes subject to
the rules again, even for a short period
of time, the one-year period would be
re-calculated from that later time. A
financial company that becomes subject
to the rules again after it had ceased
recordkeeping would be required to
comply with the requirements of the
rule within 90 days. The Proposed Rules
specify that the 90-day period
commences on the date a financial
company becomes subject to these rules
as a records entity.
Questions:
1. Is the scope of the Proposed Rules
adequate? Should additional entities be
subject to the rule? Please provide
specific details supporting these views.
2. Is the initial compliance date of 270
days adequate? If it is too long, please
explain how records entities would be
able to meet a shorter initial compliance
date? If it is too short, please explain
why a longer period would be necessary
to comply with the rule.
3. Is the rolling 12-month baseline for
a financial company to cease being a
records entity adequate? Please provide
specific details if it is inadequate. Is the
subsequent compliance date of 90 days
adequate? Please provide specific
details if it is inadequate.
4. Should each affiliate of a corporate
group that meets the records entity
definition under section 148.2(l)(3)(iv)
of the Proposed Rules be required to
maintain records, or should the parent
company aggregate records for all open
QFCs that any such affiliate in the
consolidated corporate group is a party
to or guarantees, supports, or is linked?
Should there be one recordkeeping
requirement for an entire corporate
group by the top tier holding company?
Are there any barriers to the parent
company obtaining the necessary
information from such subsidiaries and
affiliates? Should the parent company
be required to maintain records for the
QFCs at its foreign subsidiaries and
68 For the rolling 12-month period, a financial
company’s total consolidated assets are calculated
based on the most recent financial statements from
the prior fiscal year-end.
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
976
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
affiliates? Would such a definition, in
which only the parent company in a
corporate group is a records entity,
make compliance more or less
burdensome? Are the recordkeeping
requirements in the Proposed Rules an
effective means of assisting the FDIC as
receiver of a covered financial company
to exercise its rights and fulfill its
obligations under section 210(c)(8), (9),
or (10) of the Dodd-Frank Act? If not,
how could the Proposed Rules be more
effective to assist the FDIC?
5. Should a records entity also be
required to maintain records with
respect to QFCs of affiliates that are
linked to such entity? Should such
records entity be responsible for
obtaining from its affiliates or
subsidiaries all information necessary to
enable such records entity to maintain
records with respect to QFCs of affiliates
that are linked to it? Is there a different
way the FDIC could obtain information
about linked QFCs? Would the
information provided in Table A–3 to
the Appendix be sufficient to identify
such linkages? How would such
recordkeeping be handled if the affiliate
is not a financial company or is an
exempt entity?
6. Would the current definitions
provide for adequate recordkeeping for
QFCs at foreign affiliates of U.S. records
entities (recognizing that such foreign
affiliates would not be records entities)?
If not, should the record maintenance
requirements be altered?
7. Is the scope of the definition of
‘‘exempt entity’’ adequate? What
changes, if any, should be made to the
definition of ‘‘exempt entity?’’ Are there
other entities that should be included in
the definition of ‘‘exempt entity’’? Are
there entities that should be excluded
from the definition of ‘‘exempt entity’’?
Should the rules exempt other entities
based on the number of QFC
counterparties, QFC notional amounts,
QFC mark-to-market values as of a
particular date, or some other criteria? If
so, at what levels should such
exemptions be set? Please provide any
data or other analyses that support this
view. Should there be any other form of
de minimis exemption?
8. Should the rules provide additional
categorization or tiering of financial
companies based on other criteria? What
should such other criteria be? Would
financial company or QFC portfolio
leverage be relevant? Should the dollar
amount of the QFC portfolio or the
frequency of trading be used to
differentiate among financial
companies? Please provide specific
explanations of how such criteria would
be applied together with an explanation
of whether such criteria would help, be
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
neutral to, or interfere with, the FDIC’s
ability to resolve a QFC portfolio. Please
provide specific details on the relevance
of such criteria toward the orderly
liquidation authority goal of reducing
systemic risk.
9. Should the Secretary further
differentiate among financial companies
or their corporate groups by their size,
risk, complexity, leverage, frequency
and dollar amount of QFCs, or
interconnectedness to the financial
system? Should any other factors be
considered? Should the Secretary adopt
different criteria? Please provide
specific details on any factors to be
considered or criteria proposed,
including an explanation on why such
factors would help, be neutral to, or
interfere with, the FDIC’s ability to
resolve a QFC portfolio.
10. Should the Secretary have
considered the factors referenced in
section 210(c)(8)(H)(iv) in a different
way than discussed above? Should the
Secretary not rely on the Council’s
designations? If so, how should the
Secretary consider those factors? Should
any other factors be considered?
11. Is the scope of the Proposed Rules
sufficiently clear with respect to
subsidiaries of insured depository
institutions? If not, how should the
scope of the Proposed Rules be
clarified? Should all subsidiaries of
insured depository institutions be
included in the scope of the Proposed
Rules?
12. Is it appropriate to include
affiliates and other entities that might
not be designated as systemically
important, or that might not have total
assets equal to or greater than $50
billion, within the scope of the
Proposed Rules? If not, how should the
scope of the Proposed Rules be
narrowed? For example, should
affiliates be included only if they
themselves are designated as
systemically important or have total
assets equal to or greater than $50
billion? How would this affect the
FDIC’s ability to exercise its rights
under the Act and fulfill its obligations
under section 210(c)(8), (9), or (10), as
receiver? Conversely, should the scope
of the Proposed Rules regarding
affiliates be broadened? Are there any
affiliates that would not fall within the
scope of the Proposed Rules that
should? If so, why?
13. Does the definition of ‘‘control’’
adequately capture those entities that
should be defined as affiliates for
purposes of the rules? Should the
definition of ‘‘control’’ be modified and,
if so, how? For example, should the
definition be the same as the definition
of ‘‘control’’ under the BHC Act?
PO 00000
Frm 00012
Fmt 4701
Sfmt 4702
14. Should financial companies that
guarantee or support QFC positions be
required to maintain records on such
QFCs if such QFCs qualify for treatment
under section 210(c)(16)? If not, how
would the recordkeeping of such QFCs
be handled?
15. Should there be any additional
data to avoid duplication of records of
guaranteed, supported or linked QFCs if
the related affiliate also is a records
entity and maintains records with
respect to such QFCs?
16. Is the criterion in the definition of
records entity in section 148.2(l)(3)(iii)
of the Proposed Rules appropriate?
Should the calculation of $50 billion in
total assets exclude non-proprietary
assets that are included on a balance
sheet under accounting rules, such as
certain types of client assets under
management required to be included on
an investment adviser’s balance sheet?
Is it appropriate for some financial
companies or corporate groups with less
than $50 billion in total assets to not be
required to maintain records?
17. On what basis should investment
advisers that are to be included as
records entities be identified? Should
the advisers be required to file fiscal
year-end balance sheets and should
their status as records entities be based
on information contained in these
balance sheets?
18. Are there any other entities for
which the rules need not apply? If so,
which entities, and why?
19. Should swap dealers and major
swap participants be required to
maintain records under the rules
irrespective of the size and other
requirements of the definition of records
entity?
20. Is the inclusion in the Proposed
Rules of clearing organizations or other
financial market utilities that are
designated as systemically important
appropriate? What issues should the
Secretary consider when addressing
recordkeeping requirements with
respect to clearing organizations or
other financial market utilities? What
records do clearing organizations
currently maintain for QFCs? Are they
different from the records required in
the Appendix to the Proposed Rules?
Are they different from those
maintained by counterparties in
bilateral QFC transactions? If so, should
a different framework for QFC records
be considered for clearing organizations
than for other records entities? Should
a different set of data requirements be
considered for clearing organizations?
Should such different data set contain
fields in addition to those included in
Tables A–1 through A–4 of the
Appendix, exclude some of the fields
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
listed in Tables A–1 through A–4 of the
Appendix, or some combination of the
two? Should any required data be
provided in a form or fashion different
from the format contained in the
Proposed Rules?
21. Should the recordkeeping
requirements for centrally-cleared
transactions differ from those for noncentrally-cleared transactions? If so,
should such requirements include data
fields in addition to those included in
Tables A–1 through A–4 of the
Appendix, exclude some of the fields
listed in Tables A–1 through A–4 of the
Appendix, or some combination of the
two?
22. Are there special considerations
regarding a clearing organization
resolution that should be reflected in
the rule? In particular, what records of
a clearing organization would be useful
to the FDIC as receiver? Is this different
from the records that are needed for the
resolution of other types of financial
companies under Title II? If so, how
should recordkeeping requirements be
modified to address appropriately a
clearing organization or other financial
market utility resolution?
23. Is it appropriate, if a registered
investment company has multiple
series, to deem each series of the
company to be a separate financial
company for purposes of the rules? If
not, why not?
24. Should the rules apply to an
investment adviser acting as agent for its
client with respect to a QFC if the
adviser otherwise is not a party to, does
not support, does not guarantee, or is
not linked to the client’s QFC?
B. General Definitions
In addition to the definitions
described in detail above in reference to
the scope of the Proposed Rules, certain
additional terms are defined in the
Proposed Rules to describe a records
entity’s recordkeeping obligations. The
term ‘‘counterparty’’ would be defined
as any natural person or entity (or
separate non-U.S. branch of any
entity) 69 that is a party to a QFC with
a records entity. An affiliate or a nonU.S. branch of such records entity that
is not itself a records entity would be
considered a counterparty of a records
entity if it is a party to a QFC with such
affiliated records entity. The term
‘‘counterparty’’ would also include any
natural person or entity that is a party
to a QFC that is guaranteed or supported
by a records entity. To the extent a
69 The term non-U.S. branch is used to designate
a U.S. entity that operates in a non-U.S. jurisdiction
under special license in such jurisdictions instead
of operating through a subsidiary incorporated or
organized in such non-U.S. jurisdiction.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
corporate group includes more than one
records entity, for each inter-affiliate
QFC to which two or more affiliated
records entities are a party (or are
otherwise linked), each affiliate would
be required to treat the other as a
counterparty for purposes of the rules.
Recordkeeping with respect to interaffiliate QFCs is necessary to enable the
FDIC to decide as quickly as possible
which affiliated financial companies in
a corporate group should be subject to
orderly liquidation under Title II, to
understand all QFC linkages in a
corporate group, and to evaluate the
potential systemic effects of FDIC
decisions.
The term ‘‘primary financial
regulatory agency’’ would consist of the
Federal banking agencies, the CFTC,
FHFA and the SEC and would be
defined by reference to the definition of
‘‘primary financial regulatory agency’’
in the Dodd–Frank Act.70
Questions:
25. Should the proposed definition of
counterparty be modified to exclude
some affiliated entities? If so, which
affiliated entities should be excluded
and why?
26. Would the proposed definitions
result in duplication of data or
positions? If so, how could such
duplication be removed?
27. Is there an alternative means of
introducing transparency for interaffiliate transactions other than
including affiliates in the definition of
counterparty? How would the
recordkeeping requirements need to be
modified to accomplish this goal?
28. Should other terms used in the
Proposed Rules be defined? If so which
ones? Please include support for any
suggested definition or clarification to
definitions supplied.
29. Are the Proposed Rules’
definitions appropriate? Would there be
any additional definitions,
modifications or considerations that
would be helpful?
C. Form, Availability, and Maintenance
of Records
1. Form and Availability
Section 148.3(a)(1) of the Proposed
Rules would require that a records
entity maintain all records in electronic
form in the format set forth in the
Appendix to the Proposed Rules. All
records entities in a corporate group
would be required to be able to generate
data in the same data format and use the
same counterparty identifiers to enable
the aggregation of all records entities in
the corporate group. In addition, the use
70 12
PO 00000
U.S.C. 5301(12).
Frm 00013
Fmt 4701
Sfmt 4702
977
of such counterparty identifiers would
enable the data to be aggregated by
counterparty, thus permitting the FDIC
to understand the exposure of the entire
corporate group to a given counterparty.
The FDIC will use the aggregation of
counterparty positions to determine the
effects of termination or transfer of
QFCs. Although the Proposed Rules
specify a recordkeeping format, the
Secretary recognizes the need to buildin flexibility for an alternate
recordkeeping format. Therefore,
Section 148.3(c) of the Proposed Rules
provides that the Secretary may grant
conditional or unconditional
exemptions from compliance with one
or more of the requirements of the rule.
An exemption with regard to the
recordkeeping format requirements
could be conditioned upon the records
entity keeping the records in an
alternate format that enables the FDIC to
exercise its rights under the Act and
fulfill its obligations under section
210(c)(8), (9), or (10) of the Act.
Section 148.3(a)(1) of the Proposed
Rules would require that all records be
capable of being transmitted
electronically to a records entity’s PFRA
and the FDIC. This requirement would
impose a recordkeeping burden but not
a reporting burden on records entities.
In order to comply with the rule, a
records entity would need to ensure that
it is able to comply with the
recordkeeping requirements of the rules
for all cross-border transactions.
These proposed requirements are
necessary and appropriate in order to
assist the FDIC as receiver.
Transparency with respect to all QFC
positions is necessary to enable the
FDIC as receiver to rapidly dispose of
the QFC portfolio or perform on the
QFCs and minimize the potential for
disorderly liquidation of the covered
financial company and increased
systemic risk. Accordingly, the FDIC
should have detailed and complete
information available to it with respect
to all QFCs of a records entity and its
affiliated financial companies, without
delay, on the date of appointment. As
discussed above, given the short time
frame for FDIC decisions, it may be
difficult to obtain and analyze a large
amount of information unless it is
readily available to the FDIC in an
updated and standardized format that
enables the FDIC to carry out the
required financial and legal analysis in
an expeditious and efficient manner.
Furthermore, absent electronic access to
the complete records of a records entity
and the ability to view such information
in the context of the records entity’s
booking practices, governing law, and
organizational structure, the FDIC may
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
978
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
not be able to analyze QFC positions
and make decisions with respect to such
QFCs by the end of the first business
day following the appointment of the
receiver. In addition, the FDIC could use
the data to help subsidiaries of a
financial company in receivership
perform their obligations under the
QFCs, thereby preserving the value of
the receivership estate. This should help
to prevent the disorderly termination of
trades, including cross-border and
affiliate trades, which could have farreaching negative effects on the records
entity and its corporate group, as well
as the broader financial markets.
Section 148.3(a)(2) of the Proposed
Rules would require that each records
entity maintain records for all QFCs to
which it is a party, including interaffiliate QFCs to which it is a party.
Each records entity also would be
required to maintain records for all
QFCs that are guaranteed or supported
by such records entity.71 These records
would help to enable the FDIC as
receiver to determine the effect of
termination or transfer of counterparty
transactions on the QFC portfolio held
by affiliates as well as any potential
effects on broader financial markets,
such as by inadvertently un-hedging one
or more affiliated counterparties.
However, a records entity that is only
linked to an open QFC would not be
required to maintain records under the
Proposed Rules with respect to such
linked QFCs.
Section 148.3(a)(3) of the Proposed
Rules would require that each records
entity provide a point of contact to
enable its PFRA and the FDIC to contact
the records entity with respect to the
rule, and to update this information
within 30 days of any change. Because
the FDIC, after being appointed as
receiver, will have very little time to
update QFC information and make
decisions with respect to QFCs, the
FDIC must work cooperatively with
personnel in charge of QFCs at each
records entity who can provide greater
context for the data, including the
records entity’s booking practices,
governing law, and organizational
structure.
Section 148.3(a)(4) of the Proposed
Rules would require that each records
entity that is regulated by a PFRA be
capable of providing all QFC records
specified in the rules to its PFRA within
24 hours of request. This requirement
would impose a recordkeeping burden
but not a reporting burden on records
71 An entity, such as an investment adviser, that
acts as agent on behalf of a client would not be
required to maintain records for any QFC to which
the adviser is not a party or that the adviser does
not support or guarantee.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
entities. A PFRA could exercise its own
authority by imposing a 24 hour
reporting requirement on a records
entity for the QFC records maintained
under the rule, and by sharing such
records with the FDIC. The Secretary
recognizes that many financial
companies may not currently have the
capability to provide all QFC records in
the required format within a 24-hour
time period. Nevertheless, because of
timing constraints set forth in Title II,
the FDIC must become familiar with the
types and formats of QFC data
maintained by records entities to be able
to comply with the statutory deadlines
upon receivership and to be able to
exercise its rights under the Act. In
addition, the records entity must be able
to generate the records in the formats
specified in the rules quickly, generally
overnight, to refresh the information
provided to regulators. These formats or
records may also be used by the FDIC
both to refine receivership processes
with respect to the evaluation of QFCs
of financial companies and their
corporate groups, and to familiarize
itself with the QFCs of the records
entities in a given corporate group.
Questions:
30. Are the proposed requirements
that records entities in a corporate group
be able to maintain the records in the
same data format and use the same
counterparty identifiers to enable the
aggregation of the data across all records
entities in the corporate group or by
counterparty reasonable?
31. Are there any other procedures
that should be addressed by the rules
which may help streamline data
production? For example, some records
entities may have a very large volume of
QFC records. Could this raise practical
considerations in the electronic
transmission of such records?
32. Are there particular methods that
would best address record maintenance
and data requirements for inter-affiliate
transactions and cross-border
transactions? Should there be specific
requirements for such transactions?
Should records entities be exempted
from any part of the recordkeeping
requirements in the Proposed Rules for
such transactions?
33. Should the Proposed Rules set
forth a standard data specification that
would require common data structures
and content for data submitted for each
corporate group?
34. What types of consents, if any,
would a records entity need to obtain
from counterparties outside of the
United States in order to comply with
the recordkeeping requirements in the
Proposed Rules? Would records entities
be able to comply with the rules if they
PO 00000
Frm 00014
Fmt 4701
Sfmt 4702
are unable to get such consents? Are
there any alternatives to the Proposed
Rules that would allow the records
entity to maintain the records and have
the capability to provide the data to its
PFRA?
35. Should the chief compliance
officer for registered investment
advisers and the officers of registered
investment companies be deemed to be
the point of contact under the rules? If
not, who should the point of contact be
for each of these entities?
36. The Proposed Rules currently
contemplate requiring a records entity
that is regulated by a PFRA to be
capable of providing to such PFRA,
within 24 hours of request, the required
records. The records entity must also be
capable of transmitting electronically
the required records to such PFRA and
the FDIC. Should the rule provide for
the PFRAs to make actual requests? If
so, should anyone other than the PFRA
(e.g., the FDIC) also have the ability to
request records? Should the records
entity be required to provide their
records directly to the FDIC rather than
only to the PFRA? Is 24 hours sufficient
time to produce the records?
2. Maintenance and Updating
Section 148.3(b) of the Proposed
Rules would require that each records
entity maintain the capacity to produce
QFC records on a daily basis based on
previous end-of-day records and values.
This provision would not require that
the records entity update all values
daily in the ordinary course of business.
Rather, it would require that the records
entity have the capacity to do so upon
request. Some data elements set forth in
Tables A–1 through A–4 of the
Appendix may not generally be updated
daily. However, since all data items
must be updated to enable the FDIC as
receiver to exercise its rights under the
Act and fulfill its obligations under
sections 210(c)(8), (9), or (10) within the
limited time frame afforded by the Act,
each records entity would need to
maintain the capacity to update the data
elements to current values within a 24hour period. To the extent the electronic
recordkeeping system produces data
that is more current than previous endof-day records and values (e.g., real-time
data), such data would also comply with
the Proposed Rules. If a records entity
is not able to update the records or
values quickly, the FDIC may not be
able to comply with the requirements of
Title II with respect to QFCs. As
mentioned above, this inability of a
records entity could increase the
potential for a disorderly liquidation of
a financial company.
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
When a records entity uses an affiliate
or a third party to maintain the records
required under the Proposed Rules, it
would be the responsibility of the
records entity to ensure that records
maintained by the affiliate or third party
can be provided to the PFRA within 24
hours of a request.
Each records entity also would be
required to be able to generate historical
end-of-day records of open QFC
positions, and any other QFC positions
needed to generate data based on endof-day records and values, for a period
of at least the preceding five business
days. Historical data are important as a
measure of the day-to-day volatility of
the given positions, and such data may
help the FDIC calculate portfolio values
on the business day after the
appointment of the receiver.
With respect to record retention, the
proposed requirement for a records
entity to maintain records would
generally apply to records and values
with respect to open QFC positions and
any other QFC positions needed to
generate information based on end-ofday records and values for at least the
five business days prior to the date of a
request.
Questions:
37. Are the record maintenance
requirements of the Proposed Rules
sufficiently clear? If not, what
additional requirements should be
adopted?
38. Is the five-day retention period for
required historical data sufficient? If a
different period would be more
appropriate, please provide support for
your recommendation.
39. In the case of records entities that
use affiliates or third-party service
providers to maintain their records, is it
appropriate for the records entity to be
responsible for providing the records
within 24 hours of a request, rather than
the affiliate or third-party service
provider?
40. Should the records be retained for
a period shorter or longer than that set
forth in the Proposed Rules based on the
status of an open QFC? What are the
potential benefits or costs of a shorter or
longer period for record retention?
3. Exemptions
Section 148.3(c) of the Proposed Rules
would permit the Secretary to grant two
types of exemptions from the rules. Any
exemptions granted pursuant to the
rules may be subject to conditions. The
Proposed Rules provide that, upon
written request by a records entity, the
FDIC, in consultation with the PFRAs
for the records entity, may recommend
that the Secretary grant a specific
exemption from compliance with one or
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
more of the requirements of the rules.
For example, if a records entity is a
subsidiary of a national bank, but is also
registered as a major swap participant
and a major security-based swap
participant, the FDIC, in consultation
with the OCC, SEC and CFTC, could
recommend that the Secretary issue an
exemption because the OCC is the
primary banking regulator while the
SEC and the CFTC have oversight
authority over the entity by virtue of it
being a major swap participant and a
major security-based swap participant.
As another example, if a records entity
is a financial company that does not
collect certain types of QFC
recordkeeping data in the ordinary
course of its business, the FDIC, in
consultation with the relevant PFRAs,
could recommend that the Secretary
issue a specific exemption from certain
data requirements of the rules, if the
FDIC believes such data omissions are
warranted under the particular
circumstances.
The Secretary would also be
permitted to issue exemptions that have
general applicability upon receipt of a
recommendation from the FDIC, in
consultation with the PFRAs for the
applicable records entities. For example,
the FDIC, in consultation with the
PFRAs, could recommend that the
Secretary issue an exemption informing
all records entities that some data
elements required by Tables A–1
through A–4 of the Appendix are not
relevant for a particular type of QFC.
The Secretary considered authorizing
the FDIC and the PFRAs to jointly grant
specific and general exemptions,
because the PFRAs are familiar with the
operations of the records entities, and
because the FDIC as the intended user
of the QFC recordkeeping would be
affected by the granting of any
exemption. However, the Act does not
appear to authorize the Secretary, as
Chairperson of the Council, to subdelegate decision making authority to
other agencies. Instead, the Secretary is
turning directly to the FDIC and
indirectly to the PFRAs for
recommendations on whether to grant
specific or general exemptions. The
Secretary will consider any FDIC
recommendation that carefully
considers the factors contained in
section 210(c)(8)(H)(iv) of the Act.
Section 210(c)(8)(H) of the DoddFrank Act gives the Secretary broad
flexibility in determining the scope of
the records entities based on, as
appropriate, the financial companies’
size, risk, complexity, leverage,
frequency, and dollar amount of QFCs
and interconnectedness to the financial
system. The Secretary also may consider
PO 00000
Frm 00015
Fmt 4701
Sfmt 4702
979
other factors deemed appropriate, which
the Secretary believes should include
whether the application of one or more
requirements of the Proposed Rules is
not necessary to achieve the purpose of
the rule. As noted previously, in
determining whether to grant any
exemptions permitted under the rule,
the Secretary expects to take into
consideration with respect to financial
companies their size, risk, complexity,
leverage, frequency and dollar amount
of QFCs, interconnectedness to the
financial system, and any other factors
deemed necessary or appropriate,
including whether the application of
one or more requirements of the rule is
not necessary to achieve the purpose of
the rule.72
Moreover, some records entities are
subject to separate recordkeeping rules
promulgated by the CFTC and SEC and
may in the future be subject to
additional recordkeeping requirements
promulgated by other U.S. and non-U.S.
agencies. The exemption provisions set
forth in the Proposed Rules are designed
to enable the rules to work in
conjunction with the CFTC’s, SEC’s and
other regulatory recordkeeping
requirements as well as any global or
local standard adopted after the
publication of the final rule, as they
would provide the ability for the
Secretary to be flexible in taking such
requirements and standards into
account. Although section 148.3(a)(1) of
the Proposed Rules specify a standard
format for recordkeeping, the Secretary,
upon receipt of a recommendation from
the FDIC made in consultation with the
appropriate PFRAs, could exempt
records entities from this requirement
on the condition that they maintain
electronic records maintained in a swap
data repository or internally in a
different format. The format of proposed
Tables A–1 through A–4 of the
Appendix therefore, should not
complicate appropriate recordkeeping,
so long as the information set forth in
the Appendix can be provided to the
FDIC in a manner that allows the FDIC
to properly analyze and aggregate the
data. Records entities could build upon
the mandatory data templates of the
swap data repositories and augment
and/or hyperlink the data to create the
totality of the information requested. A
records entity could also help the FDIC,
upon appointment as receiver, analyze
internal databases by providing the
personnel necessary to manipulate
internal databases. Because the PFRA
for a records entity and the FDIC must
work with and understand the data, a
records entity would need an exemption
72 See
E:\FR\FM\07JAP4.SGM
supra note 59.
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
980
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
from the Secretary (which could be
conditioned on the use of an alternative
recordkeeping format) before using a
recordkeeping format that is different
from the format referenced in section
148.3(a)(1) of the Proposed Rules.
The Proposed Rules also would
empower the Secretary, in consultation
with the FDIC, to grant extensions of
time with respect to compliance with
the recordkeeping requirements. It is
anticipated that such extensions of time
would apply when records entities first
become subject to the rules and likely
would not be used to lengthen the time
periods specified in the maintenance
and updating requirements of the rules.
Extensions of time may also be
appropriate on a limited basis with
respect to being capable of providing
full records because of unforeseen
technical issues.
Questions:
41. Is the scope of the exemptions
appropriate as written?
42. The Proposed Rules would allow
the Secretary, upon receipt of a written
recommendation from the FDIC, to issue
general or specific exemptions based on
factors the Secretary determines to be
necessary or appropriate. Is the
prerequisite of an FDIC
recommendation appropriate? For
example, in the case of a records entity
request for a specific exemption, should
the Secretary proceed in determining
whether to grant or deny the request if
the FDIC does not submit its
recommendation within a reasonable
period of time? If yes, should the FDIC
and/or the PFRAs be consulted in some
other manner? Is the FDIC’s
consultation with the relevant PFRAs in
preparing the written recommendation
appropriate? If not, should the relevant
PFRA be involved in some other
manner? For example, should a
recommendation be made jointly by the
FDIC and the relevant PFRA, or should
they each submit separate
recommendations to the Secretary? Are
the factors the FDIC would be required
to consider in making its
recommendation appropriate?
43. Should the Secretary delegate
decision making authority to the FDIC,
the PFRAs, or both with regard to
granting general or specific exemptions
and extensions of time? If so, please
explain the authority by which the
Secretary could make such a delegation.
44. How should the PFRAs’ separate
rulemaking and exemptive authority be
used in conjunction with exemptions
under this rulemaking?
45. What is the volume and nature of
exemption requests that commenters
believe are likely to be requested?
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
46. Should the final rule exempt
categories of financial companies? If so,
which categories should be exempted
and why? Alternatively, should the final
rule exempt certain categories of
financial companies only from certain
provisions of the rules but require them
to comply with others? Please specify
the conditions and factors to be
considered for each such exemption.
47. Should clearing organizations or
other financial market utilities be
exempted from recordkeeping under the
rule? Please explain in detail why
current recordkeeping requirements for
clearing organizations and other
financial market utilities are sufficient
to enable the FDIC to conduct the
orderly liquidation of clearing
organizations or financial market
utilities.
48. What conditions, if any, should be
included in a clearing organization
exemption? Should it suffice that a
clearing organization coordinates with
its members that are records entities to
ensure that appropriate records are
kept?
49. Is it feasible for data to be
maintained in a standardized format?
Should specific format exemptions be
included in the final rule, in particular
for formats used by common QFC
reporting repositories (e.g., swap data
repositories)? To the extent such other
recordkeeping requirements do not meet
the full requirements contemplated here
(e.g., they do not include certain
categories or fields necessary), how
would records entities meet the
contemplated recordkeeping
requirement? In such a case, would a
format exemption reduce regulatory
burden?
50. Should the provisions addressing
form and availability of data be further
detailed?
51. Should the rule specify a process
for requesting exemptions and
extensions of time? If so, what should
this process be?
D. Content of Records
1. General Information
Section 148.4(a) of the Proposed Rules
would require each records entity to
maintain all data required by Tables A–
1 through A–4 of the Appendix, as well
as additional information that is needed
to be able to understand affiliated
relationships among records entities and
counterparties. Records entities may
currently maintain such data; however,
they might not be maintaining it in the
manner or format in the Proposed Rules.
By presenting the data elements in the
form of an Appendix, the Secretary has
sought to maintain a parallel with the
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
FDIC’s Part 371 QFC Recordkeeping
rules, and to provide an easy means of
separating the data into their relevant
categories. As stated below, the
Appendix corresponds to position level
data, counterparty exposure data, legal
agreement data, and collateral data.
Where appropriate, each table in the
appendix also gives an example of each
data element and describes the
relevance of such data in the context of
an FDIC receivership.
For the purpose of QFC
recordkeeping, each records entity
would be required to treat its affiliates,
including affiliated clearing
organizations or other financial market
utilities, as third-party counterparties
and maintain complete records of all
inter-affiliate QFCs. The Proposed Rules
would require a records entity to use a
unique counterparty identifier to
identify each of its counterparties. The
records entity would be required to
assign a separate unique counterparty
identifier to each legal entity and each
non-U.S. branch or office of a legal
entity that transacts business as a
separate branch or division to enable the
FDIC to analyze cross-border QFC
activity. The unique counterparty
identifier also would facilitate the
aggregation of positions by counterparty
as well as the aggregation by corporate
group. The ability of records entities to
incorporate unique identifiers for each
counterparty is likely to vary
significantly depending on the number
and types of counterparties, and if the
counterparties are currently identified
and tracked within the records entity’s
systems.
Authorities from around the world,
including the FDIC, have established a
global legal entity identifier (‘‘LEI’’)
system, with oversight effected by a
Regulatory Oversight Committee
(‘‘ROC’’), comprised of those same
authorities, in order to coordinate and
oversee a global system of legal entity
identification. In June 2014, a Swiss
non-profit foundation (the ‘‘Global LEI
Foundation’’) was established with the
intention for it to provide operational
governance and management over Local
Operating Units (‘‘LOUs’’) that will
issue LEIs.
Before the Global LEI Foundation was
established, the ROC created an interim
system by which those with pre-LEIs
(LEIs compliant with various ROC
principles) issued by ROC-endorsed
LOUs would be sufficient to satisfy the
regulatory requirements of ROC member
authorities.
As a result, unique LEIs were already
being issued prior to the operational
governance and management of the
system by the Global LEI Foundation
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
and such LEIs are being accepted by
certain individual ROC members,
including for purposes of meeting
certain other recordkeeping and
reporting requirements mandated by the
Dodd-Frank Act. The Proposed Rules
would require records entities to use
LEIs issued by LOUs endorsed by the
ROC, and by those LOUs endorsed or
otherwise governed by the Global LEI
Foundation.
To the extent that the LEI or pre-LEI
does not allow branches to be separately
identified, the records entity would be
required to include additional
identifiers to enable the FDIC to
segment the QFC activity both across
the corporate group and by jurisdiction,
as treatment of a QFC varies based on
the law governing the QFC and/or the
location of the collateral.
To that end, financial companies
would need to maintain the capacity to
generate QFC information in a common
data format, at a minimum, within each
corporate group, and, ideally, among
financial companies. To facilitate the
resolution of QFC portfolios, the FDIC
needs to analyze such data upon
appointment as receiver under Title II
by working collaboratively with the
PFRAs. The standardized data format
would reduce the time and effort
needed by the FDIC to perform the
analysis and facilitate comparison of
QFC data across financial companies
with large complex QFC portfolios.
A records entity also would be
required to maintain electronic copies of
all agreements that govern the QFC
transactions, as well as credit support
documents related to such QFC
transactions. As noted previously,
electronic records are necessary or
appropriate to assist the FDIC as
receiver to quickly analyze QFC
positions and make prompt decisions
with respect to such QFCs, and to
minimize the potential for disorderly
liquidation of the covered financial
company and increased systemic risk.
These copies would need to be
maintained in full-text searchable
electronic form, and would be required
to include master agreements and
annexes, confirmations, master netting
agreements, credit support annexes,
guarantees, net worth maintenance
agreements, security interest
agreements, and other related
agreements, if any. Similarly, the
Proposed Rules would require records
entities to keep full-text searchable
copies of all assignment or novation
documents to enable the FDIC to
determine the appropriate
counterparties for the various QFC
positions.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
The Proposed Rules would require
that each records entity also maintain a
list of vendors directly supporting the
QFC-related activities and the contact
information for such vendors. Section
148.4(a) of the Proposed Rules would
also require that each records entity
maintain certain additional information
with respect to its current QFC
portfolio, including information about
the risk metrics used to monitor the
QFC portfolios and contact information
for each risk manager. The maintenance
of such information would enable the
FDIC to contact a risk manager or
vendor quickly in the event that the
FDIC requires additional information
that is not currently included among the
required data. Furthermore, maintaining
risk manager contact information and a
vendor list is unlikely to be overly
burdensome because most financial
companies are likely to already
maintain similar information in the
ordinary course of business.
Questions:
52. Are the proposed requirements
related to unique counterparty
identifiers sufficient to enable
compliance with the rules?
53. Is it necessary or appropriate for
a records entity to maintain full-text
searchable electronic copies of all
agreements governing QFC transactions?
If not, are there any viable alternatives
to this?
54. Is it necessary or appropriate for
a records entity to maintain risk metrics
used to monitor the QFC portfolio, risk
manager contact information, and a list
of vendors that directly support the QFC
related activities of the records entity? If
not, are there any viable alternatives to
this?
55. Should the rule include additional
guidance with respect to form, content
and format of the records required? If so,
how?
56. Should the rule specify a data
standard (or language, or specification,
e.g., XML or XBRL) and a standard set
(e.g., a schema or taxonomy) of data
item tags? Should the rule specify
further the definitions which the
records entity must use for its QFC
records data? Please provide detailed
specifications of the data standard or
standard set as well as of the proposed
definitions, if any.
57. Should data elements be
interoperable among affiliated records
entities and among financial company
groups? If so, discuss which standard(s)
should be considered, and why? If the
rule should not include such a
requirement to use a standard for the
QFC data, will the complexity and
quantity of data hinder the ability of the
PO 00000
Frm 00017
Fmt 4701
Sfmt 4702
981
FDIC to use the QFC data for the
purposes described in the rule?
2. Appendix Information
As described previously, the Proposed
Rules would organize the detailed QFC
recordkeeping requirements into an
appendix of four tables: (1) Positionlevel data set forth in Table A–1; (2)
counterparty collateral data set forth in
Table A–2; (3) legal agreements related
data set forth in Table A–3; and (4)
collateral detail data set forth Table A–
4. The information that would be
required by Tables A–1 through A–4 is
largely self-explanatory and contains
examples as well as narrative
explanations of the applications. Some
of the data fields, such as the unique
counterparty identifiers for the records
entity and the counterparty, are used in
each table to help link the data among
the tables.
The Appendix specifies that a records
entity may leave an entry blank, or may
insert ‘‘N/A’’ for any data fields that do
not apply to a given QFC transaction or
agreement. For example, if a QFC is not
guaranteed, data fields that relate to a
guarantee agreement would not need to
be filled in, so long as those guaranteerelated fields that required a Y/N (‘‘Yes/
No’’) answer are completed where
appropriate. Similarly, if QFCs with a
counterparty are not collateralized,
there would be no need to maintain
collateral information with respect to
that counterparty.
a. Table A–1
Table A–1 would set forth positionlevel data that enable the FDIC to
evaluate a records entity’s exposure to
its counterparties. The FDIC would also
use these data to evaluate the effects of
the receiver’s determination to transfer,
disaffirm or repudiate, or retain QFCs.
In addition, position-level information
would assist the receiver or any
transferee to comply with the terms of
the QFCs and reduce the likelihood of
inadvertent defaults. For example, a
unique position identifier would allow
for the tracking and separation of
positions maintained by the records
entity, and the identifier also would be
consistent with the CFTC- and SECmandated data that need to be reported
to SDRs.73 The information would also
be required to include CUSIP identifier
numbers, unique trade confirmation
numbers, as well as other internal
identifying information relevant to the
position.
The unique booking unit or desk
identifier is intended to serve to further
segment the data provided by the
73 See
E:\FR\FM\07JAP4.SGM
17 CFR 45.5.
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
982
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
records entity. It identifies which
division or trading desk of a records
entity has entered into the QFC
position. This information is necessary
to enable the FDIC to evaluate the
business purposes of each QFC and
locate back office contacts. The
information that would be maintained
in this field would help to determine
the purpose of the QFC and assist the
FDIC to determine whether the QFC was
backed by another entity or an affiliate,
if the QFC had a full or partial hedge,
or if the QFC was used to hedge an
asset. In addition to a unique booking
unit or desk identifier, a description of
that booking unit or desk would
facilitate QFC classification. This
description would assist in determining
the specific nature and purpose of the
QFCs and enable the FDIC to carry out
an orderly liquidation.
Counterparties to records entities
often trade QFCs under the terms of a
single master agreement or similar
governing document. Each master
agreement may contain non-standard
legal provisions that govern the
relationship of the parties. In certain
cases, counterparties may maintain
multiple master agreements with the
same records entity. For the FDIC to
accurately assess the effect of transfer or
termination of QFC positions on the
financial stability of the derivatives and
other financial markets, such QFC
positions would need to be aggregated
under the relevant corresponding
agreements or governing documents at
each level permitted by the documents.
To the extent the master agreements are
subject to further cross-product or
multi-party netting, such ‘‘mastermaster agreements’’ also would need to
be identified. All master agreements are
included in the QFC definition under
the Act and would be required to be
treated as QFCs for all purposes under
the Proposed Rules. The data that would
be maintained must enable the FDIC to
not only aggregate and disaggregate
positions at the level of each
counterparty, affiliate, and agreement,
but also to determine the overall effect
of the FDIC’s decisions for each of the
counterparty’s and the records entity’s
corporate groups.
Table A–1 would also require the
records entity to maintain information
with respect to any loan or other
obligation that relates to a QFC. For
example, the counterparty to a swap
with a records entity may have entered
into the swap to hedge the interest rate
exposure on amounts borrowed from an
affiliate of the records entity, where
both the loan and the swap are secured
by one mortgage on the property. This
information is necessary to enable the
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
FDIC to evaluate both the loan and the
swap. The information that would be
maintained with respect to related
obligations includes a reference number
of the obligation and information about
the borrower, lender and any other
material terms of the related obligation.
b. Table A–2
Table A–2 would require a records
entity to maintain counterparty
aggregate exposures and collateral data
for all QFCs entered into by a records
entity with a counterparty. For such
data, the records entity would need to
demonstrate the ability to maintain
itemized records of collateral by
counterparty, which also would allow
for the aggregation of collateral based on
the netting rights of the counterparty
and its affiliates. The data would need
to take into account enforceability of
netting in an insolvency close-out
situation in specific jurisdictions, in
addition to contractual payment netting
outside an insolvency or receivership.
The information in Table A–2 would
need to be maintained at each level of
netting under a master agreement. For
example, if a master agreement includes
Annexes that require intermediate
netting under each Annex, the net
exposures under each Annex would
need to be maintained separately. The
data would need to identify whether
multi-party or cross-product netting is
contemplated among affiliates in a
corporate group and provide exposure
data taking into account such multiparty or cross-product netting. To the
extent netting is not enforceable in an
insolvency of the records entity or the
counterparty, the positions that cannot
be netted in an insolvency would not
need to be netted for the purpose of
Table A–2. This information would
allow counterparty-level data to be
segregated by records entity and
counterparty. The use of the term
‘‘counterparty’’ would also include each
affiliate in a records entity’s corporate
group that is a counterparty to an interaffiliate QFC.
The title and name of each master
agreement, master netting agreement,
and accompanying governing
documentation relating to counterparty
positions, would enable the FDIC as
receiver to identify the related
agreement and review the contractual
provisions governing the counterparty
relationship.
The primary objective of proposed
Table A–2 is to identify exposure of the
records entity to each counterparty and
its affiliates, as well as the exposure that
counterparties might have to the records
entity. This information would enable
the FDIC to determine the effects of
PO 00000
Frm 00018
Fmt 4701
Sfmt 4702
transfer or termination of QFCs with a
given counterparty and the potential
risk of contagion in the financial
markets. Therefore, the data would need
to be aggregated only to the extent
permitted under the governing
agreements and applicable law. Such
information also would provide relative
concentrations of risk with
counterparties under each applicable
agreement. A records entity could also
transact QFCs for hedging or other
purposes with the various affiliates
within a group, which may include
cross-border positions that cannot be
netted. In order to assess the true
exposure of an entity, the FDIC as
receiver must have a full understanding
of the aggregate QFC position by
including all inter-affiliate transactions
in its evaluations. This information also
would be needed to assess cross-border
risk and collateral availability as well as
the likely systemic or practical
implication of transferring QFC
positions.
Table A–2 would require
comprehensive collateral information,
including market value of collateral,
location of collateral, and any custodial
and segregation arrangements. Collateral
excess or deficiency positions as well as
collateral thresholds and valuation
discounts also would need to be
provided. The creditworthiness of
counterparties that might not be able to
return rehypothecated collateral
represents an additional risk to a QFC
transaction. Conversely, if the records
entity is able to rehypothecate collateral,
the records entity may create additional
risks for its counterparties. Table A–2
would require identification of the
collateral status and a notation whether
collateral posted to a counterparty is
subject to re-hypothecation. This
information would enable the FDIC as
receiver to comply with the law and
transfer QFC obligations together with
the related collateral.74 In addition, it
would enable the receiver to identify
excess collateral of counterparties for
possible return should the contracts be
terminated after the one business day
stay. For cross-border transactions, this
information would help the FDIC
evaluate the availability of collateral in
different jurisdictions and the related
close-out risks if the receiver cannot
arrange for the transfer of QFC positions
under local law.
c. Table A–3
Table A–3 would require the
maintenance of legal agreement data for
each QFC agreement or master
agreement between each records entity
74 12
E:\FR\FM\07JAP4.SGM
U.S.C. 5390(c)(9)(A)(i)(IV).
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
and counterparty. For each QFC, the
records entity would be required to
maintain in readily accessible
searchable format all of the following
documents: Legal agreements (including
master agreements, annexes,
supplements or other modifications
with respect to the agreements) between
the records entity and its counterparties
that govern QFC transactions;
documents related to and affirming the
position; active or ‘‘open’’
confirmations, if the position has been
confirmed; credit support documents;
and assignment documents, if
applicable, including documents that
confirm that all required consents,
approvals, or other conditions precedent
for such assignment(s) have been
obtained or satisfied.
Counterparties to records entities
often trade QFCs under the terms of a
master agreement (for example, an ISDA
master agreement) coupled with other
governing documentation. Therefore, it
is important that the legal agreement(s)
between the records entity and
counterparty be identified by name and
any unique identifier information. Such
agreement(s) outline the legal terms of
the transaction, including relevant
governing law, and will assist the
receiver in determining a definitive
course of action. The records entity
would need to identify the relevant
governing law. The records entity also
would need to include a list and
description of any events of default or
termination events that are in addition
to those specified in the form of
agreement used, as well as a list and
description of events of default or
termination events that have been
removed by mutual agreement. In
addition, each records entity would
need to specify all ‘‘specified financial
condition clauses’’ that are part of a
given agreement, as well as the entity to
which such QFCs are linked.
To the extent a counterparty does not
use a specific industry standard form,
the records entity could either prepare
this information by reference to the
standard form or by providing a list and
description of all relevant events of
default or termination events. This
information would assist the receiver in
planning a course of action and in
determining whether there are any
events that trigger the counterparty’s
right to terminate the agreement.
Because the receiver has a limited
period of time in which to evaluate QFC
provisions, the availability of the legal
agreements in fully searchable
electronic form is of utmost importance.
In particular, the identification of any
support by or linkage to a parent entity
or affiliate and the identification of any
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
transfer restrictions and non-standard
covenants would enable the FDIC as
receiver to evaluate the treatment of
QFCs under such contracts in an orderly
liquidation of the records entity or its
affiliate under Title II of the Act
d. Table A–4
Table A–4 would expand on the
information set forth in Table A–2. Each
records entity would be required to
maintain collateral detail data both with
respect to collateral received and with
respect to collateral posted. Such
information would need to be
maintained on a counterparty-bycounterparty basis. In addition, the data
would need to include collateral
information for each records entity. The
collateral information would need to be
capable of aggregation for the records
entity’s corporate group, as well as the
counterparty’s corporate group to the
extent required or permitted by any
applicable netting agreements. The data
in this Table, together with the data in
Table A–2, would allow the FDIC to
better understand the QFC portfolio
risk, and to model various QFC transfer
or termination scenarios.
Questions:
58. Is it reasonable for the Proposed
Rules to require collateral detail data
both with respect to collateral received
and collateral posted, on a counterpartyby-counterparty basis? Is it reasonable
for the Proposed Rules to require data
that include collateral information for
each records entity? If not, what are the
viable alternatives?
59. Are there any additional records
that should be maintained by a records
entity? If so, what additional categories
or fields should be included? Please be
specific in identifying data to be
maintained.
60. Do the recordkeeping
requirements sufficiently capture
information regarding QFCs that are
linked to the records entity? Do the
recordkeeping requirements sufficiently
capture information regarding QFCs that
are guaranteed or otherwise supported
by the records entity?
61. In the event that only some
portion of the QFC records need to be
capable of being produced immediately,
should fewer data elements be required?
62. Please comment on the general
nature and scope of records proposed to
be maintained Should some records be
further explained? How does the nature
and scope of records compare to other
QFC recordkeeping requirements (e.g.,
swap data repositories)? Are there ways
to further align the recordkeeping
requirements with those of other
reporting repositories to reduce
regulatory burden? If so, how? Do the
PO 00000
Frm 00019
Fmt 4701
Sfmt 4702
983
proposed recordkeeping requirements
generally reflect the size and complexity
of entities that likely qualify as records
entities? Are there any additional
records or data that would assist the
FDIC in its role as receiver with respect
to a covered financial company?
63. Are there any impediments to
maintaining the records proposed to be
required? How should these
impediments be resolved? Please
specify why the unavailability of a
record would or would not create
impediments to the transfer or
repudiation of the affected QFCs.
64. Should different records or data be
required to be maintained by records
entities based on entity types?
65. Are any of the proposed
recordkeeping requirements not
necessary or appropriate to assist the
FDIC as receiver? If not, why not? Are
some records not necessary or
appropriate based on the entity type of
the records entity? Would any of the
contemplated records or data result in
undue burden on records entities?
66. Do the proposed recordkeeping
requirements overlap or conflict with
any existing or proposed regulatory
requirements applicable to various
entities that would qualify as records
entities? If so, how should any
conflicting or overlapping requirements
be addressed? Specifically, do the
proposed recordkeeping requirements
overlap with or conflict with the
proposed recordkeeping rules
applicable to broker-dealers and
security-based swap dealers (SBSD)? 75
If so, be as specific as possible regarding
how the Proposed Rules may conflict
and provide specific recommendations
for making this Proposed Rules and the
proposed rules applicable to brokerdealers and SBSDs more consistent. Do
any existing regulatory requirements
require records to be maintained in a
format that is similar to the format set
forth in the Proposed Rules, or that
would otherwise allow for the FDIC to
easily evaluate the records in the event
it is appointed as receiver? How could
any existing reporting or recordkeeping
requirements be used to assist the FDIC
in its role as receiver? Could any
existing regulatory requirements be
modified to require maintenance of the
records required under the Proposed
Rules? If so, how? Would any such
modifications promote efficiencies or
reduce the burden or costs on records
entities? Conversely, could they
adversely affect the FDIC’s ability to
75 See e.g., Exchange Act Release No. 71958, 79
FR 25194 (May 2, 2014).
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
984
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
exercise its rights and obligations as
receiver?
67. If there are QFCs between a
records entity and a counterparty that
are of the type that typically would be
covered by two or more different types
of master agreements, should a different
schedule be required for each such
different type of QFC?
68. What would be the most efficient
method of obtaining information as to
changes affecting individual positions,
as well as changes to Master Agreements
pursuant to annexes, changes to
annexes, other amendments and
protocols?
69. What would be the most efficient
way to account for inter-affiliate
positions while avoiding duplication of
position reporting? Should the positionlevel data require a unique counterparty
identifier and counterparty name for the
counterparty to related inter-affiliate
position(s) with non-records entities in
the corporate group or with nonaffiliates?
70. In order to enable the FDIC as
receiver to meet pending margin calls
for all companies in a corporate group,
should a records entity be required to
provide information as to collateral
deficiencies, after giving effect to
pending margin calls, of each subsidiary
that is not a records entity? Should a
records entity also be required to
provide information as to the location of
collateral provided in connection with
such subsidiaries’ positions or other
additional information with respect to
the positions of such subsidiaries?
71. Table A–1 of the Appendix
requires position-level data that
identifies whether the purpose of such
positions is for hedging or trading, and
if the purpose of a position is for
hedging, Table A–1 requires a general
description of the hedge (e.g., hedging
mortgage servicing or hedging a
mortgage pipeline). This information is
necessary for the FDIC to determine the
corporate group’s business strategy for
purposes of estimating the financial and
operational impact of the FDIC’s
decision to transfer, disaffirm or
repudiate, or retain the QFC in the
receivership. For example, if the
covered financial company entered into
a QFC in the form of an interest rate
swap to hedge the interest rate risk
associated with its portfolio of
mortgage-backed securities, knowing the
purpose of the QFC position will help
the FDIC decide whether to transfer
both the mortgage-backed securities and
the interest-rate swap to a bridge
financial company. Without knowing
the purpose of the position, the FDIC
could potentially transfer the mortgagebacked securities to a bridge financial
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
company but leave the interest-rate
swap in the receivership where it could
potentially be terminated by the
counterparty, which would expose the
bridge financial company’s assets to
previously hedged risks. Should the
position-level data require the purpose
of the position? With respect to hedging
positions, what are the appropriate
general categories for the item(s) that are
hedged? Are the hedging categories
listed in Table A–1 (hedging mortgage
servicing, hedging a mortgage pipeline)
appropriate examples? Should Table A–
1 require different information for QFCs
where the position consists of hedging
strategies? Should the position-level
data require specific identifiers for
portfolio hedging transactions? If so,
how should split hedging be treated?
72. The recordkeeping requirement
for the reference number of any related
loan data, if applicable, in Table A–1 to
the Appendix serves a similar purpose
as the requirement to identify the
particular purpose of a position. To the
extent a QFC is related to a specific loan
or loans held by the covered financial
company in receivership or an affiliate,
it may be beneficial to transfer or retain
in the receivership the QFC and the
related loan or loans in conjunction
with each other where, in the case of a
transfer, the bridge financial company
does not end up holding a QFC without
also holding directly or indirectly the
related loan or loans. For example, the
covered financial company may have
issued a loan along with a related
interest rate swap, and in the case of
resolution, it might be beneficial to
transfer to the bridge financial company,
or terminate, together the interest rate
swap and the underlying loan. To the
extent a QFC position has a related loan
or loans, would it be appropriate for a
records entity to include the reference
number for any related loan? Would it
be appropriate for a records entity to
include the legal name of the records
entity that is lender of related loan as
required in the position-level data?
73. As specified in Tables A–1 and A–
2, records entities are also required to
maintain the industry code for each
counterparty by using either the Global
Industry Classification (GIC) code or the
Standard Industrial Classification (SIC)
code. Each of these two codes uses four
digits to identify the primary business of
an entity, and is designed to facilitate
uniformity and comparability in the
collection, presentation, and analysis of
data. By having access to a GIC or SIC
code for each counterparty, the FDIC
will be better positioned to estimate the
financial and operational impact of its
decisions to transfer, disaffirm or
repudiate, or retain QFCs in the
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
receivership, and will be better able to
assess the potential impact (‘‘knock-on
effects’’) that such decisions may have
on the financial markets as a whole and
particularly on individual sectors of the
economy. Is the use of a GIC or SIC code
appropriate? Are there alternative codes
that would better assist the FDIC?
74. Table A–4 to the Appendix
requires recordkeeping in the form of a
‘‘yes or no’’ on whether the collateral for
a particular position is segregated and a
brief description of such segregation.
This information is necessary for the
FDIC to decide whether to transfer
QFCs. If the FDIC as receiver decides to
transfer all QFCs between the covered
financial company in receivership and a
specific counterparty, the Act requires
the FDIC to transfer all property or
collateral securing such QFCs.76 If the
collateral underlying such QFCs is not
segregated, then the FDIC may need to
‘‘disentangle’’ such collateral if it
decides to transfer the QFCs and the
collateral in accordance with the
requirements of the Act or, if it does not
disentangle the collateral, it may need to
transfer certain QFCs and other assets
that it would not otherwise have
decided to transfer. Does this
recordkeeping requirement sufficiently
capture the information the FDIC needs?
Are there any alternative approaches?
75. Is there a different format for
maintaining the records that would
improve the receiver’s ability to
evaluate QFC portfolios? How do the
proposed formatting requirements affect
a records entity’s ability to generate the
records in the time frames provided for
in the Proposed Rules? Are there any
other requirements relating to
formatting or transmission of records
that the Secretary should consider?
IV. Administrative Law Matters
A. Initial Regulatory Flexibility Analysis
The Regulatory Flexibility Act (the
‘‘RFA’’) (5 U.S.C. 601 et seq.) requires an
agency to consider whether the rules it
proposes will have a significant
economic impact on a substantial
number of small entities. Congress
enacted the RFA to address concerns
related to the effects of agency rules on
small entities, and the Secretary is
sensitive to the impact the Proposed
Rules may impose on small entities. In
this case, the Secretary believes that the
Proposed Rules likely would not have a
‘‘significant economic impact on a
substantial number of small entities.’’ 5
U.S.C. 605(b). The Act mandates that
the Secretary prescribe regulations
requiring financial companies to
76 12
E:\FR\FM\07JAP4.SGM
U.S.C. 5390(c)(9)(A)(i)(IV).
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
maintain records with respect to QFCs
to assist the FDIC as receiver of a
covered financial company in being able
to exercise its rights under the Act and
fulfill its obligations under section
210(c)(8), (9), or (10) of the Act. As a
result, the economic impact on financial
companies, including small entities,
flows directly from the Act, and not the
Proposed Rules. Comments are
requested on whether the Proposed
Rules would have a significant
economic impact on a substantial
number of small entities and whether
the costs are the result of the Act itself,
and not the Proposed Rules.
Instead of requiring all financial
companies to maintain records with
respect to QFCs, the Secretary is
narrowing the scope of the Proposed
Rules to a smaller subset of financial
companies. As a threshold matter, the
Secretary is proposing to exclude from
the scope of the Proposed Rules
financial companies that do not meet
one of the following three criteria: (1)
Are designated pursuant to section 113
of the Act (12 U.S.C. 5323) to be a
nonbank financial company that could
pose a threat to the financial stability of
the United States; (2) are designated
pursuant to Section 804 of the Act (12
U.S.C. 5463) as a financial market utility
that is, or is likely to become,
systemically important; or (3) have total
assets equal to or greater than $50
billion. Since the Act’s enactment in
2010, eleven financial companies have
been designated by the Council under
categories (1) and (2), and the
Secretary’s understanding is that each of
those designated companies has
revenues in excess of the Small
Business Administration’s (‘‘SBA’’)
revised standards for small entities,
which went into effect on July 22, 2013.
Moreover, the Secretary, as Chairperson
of the Council, does not expect that any
small entities will be designated by the
Council in the foreseeable future.77
However, the Proposed Rules would
also apply to these large financial
companies’ affiliated financial
companies (regardless of their size) if an
affiliated financial company otherwise
qualifies as a ‘‘records entity’’ and is not
an ‘‘exempt entity’’ under the Proposed
Rules.
The RFA requires agencies either to
provide an initial regulatory flexibility
analysis with a proposed rule or to
certify that the proposed rule will not
have a significant economic impact on
a substantial number of small entities.
In accordance with section 3(a) of the
RFA, the Secretary has reviewed the
77 See 77 FR 21637, 21650 (April 11, 2012) and
76 FR 44763, 44772 (July 27, 2011).
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
Proposed Rules. While the Secretary
believes that the Proposed Rules likely
would not have a significant economic
impact on a substantial number of small
entities (5 U.S.C. 605(b)), the Secretary
does not have complete data at this time
to make this determination, particularly
with regard to affiliated financial
companies. Therefore, an Initial
Regulatory Flexibility Analysis has been
prepared in accordance with 5 U.S.C.
603.
The Secretary also requests that
commenters quantify the number of
small entities, if any, that would be
subject to the Proposed Rules, describe
the nature of any impact on small
entities, and provide empirical and
other data to illustrate and support the
number of small entities subject to the
Proposed Rules and the extent of any
impact. After reviewing the comments
received during the public comment
period, the Secretary will consider
whether to conduct a final regulatory
flexibility analysis.
1. Statement of the Need for, Objectives
of, and Legal Basis for, the Proposed
Rules
The Secretary is proposing a
regulation to implement section
210(c)(8)(H) of the Act, as required by
the Act. Section 210(c)(8)(H) provides
that, if the federal primary financial
regulatory agencies do not prescribe
joint final or interim final regulations
requiring financial companies to
maintain records with respect to QFCs
to assist the FDIC as receiver for a
covered financial company to exercise
its rights and fulfill its obligations under
certain provisions of the Act within 24
months of the enactment of the Act, the
Secretary, as Chairperson of the
Council, shall prescribe, in consultation
with the FDIC, such regulations.
The Proposed Rules would require
records entities to maintain detailed
information about their QFC positions
and be capable of providing this
information to their PFRAs within 24
hours of request. The Proposed Rules
include, among other things,
recordkeeping requirements with
respect to position-level data,
counterparty-level data, legal
documentation data, and collateral-level
data. These requirements would assist
the FDIC in resolving financial
companies that may be subject to
orderly liquidation under Title II of the
Act. Specifically, these data are
necessary to enable the FDIC as receiver
of a covered financial company in
deciding whether to: (1) Transfer the
covered financial company’s QFCs
under section 210(c)(9) and (10) of the
Act within the narrow time window
PO 00000
Frm 00021
Fmt 4701
Sfmt 4702
985
afforded by the Act; (2) retain such
QFCs within the receivership and allow
a counterparty to terminate the QFCs;
(3) retain the QFCs within the
receivership and disaffirm or repudiate
the QFCs; (4) exercise its rights to
enforce certain QFCs of subsidiaries and
affiliates under section 210(c)(16)
within the narrow time window
afforded under section 210(c)(10) of the
Act; 78 and (5) assess the consequences
of decisions to transfer, disaffirm or
repudiate, or retain QFCs, including the
potential impact that such decisions
may have on the financial markets as a
whole. Because of the narrow time
window by which the FDIC may decide
to transfer QFCs of the covered financial
company and enforce the QFCs of the
covered financial company’s
subsidiaries and affiliates under section
210(c)(9), (10) and (16) of the Act, it is
necessary that financial companies that
qualify as records entities maintain the
capacity to generate, on an ongoing
basis, QFC information in a common
data format. Upon being appointed as
receiver under Title II of the Act, the
FDIC needs to analyze such data to
facilitate the resolution of QFC
portfolios. As noted earlier, the
information must be sufficient to allow
the FDIC to estimate the financial and
operational impact on the covered
financial company or its affiliated
financial companies of the FDIC’s
decision to transfer, disaffirm or
repudiate, or retain the QFCs.
Additionally, it must allow the FDIC to
assess the potential impact that such
decisions may have on the financial
markets as a whole.
2. Small Entities Affected by the
Proposed Rules
As discussed above, the Proposed
Rules would only affect large financial
companies and certain of their affiliates
that meet the definition of a records
entity. The Secretary proposes that the
recordkeeping requirements in the
Proposed Rules be applicable to all
affiliated financial companies in a large
corporate group that meet the definition
of records entity, regardless of their size,
because an exemption for small entities
would significantly impair the FDIC’s
right to enforce certain QFCs of affiliates
of covered financial companies under
section 210(c)(16) of the Act. Such
enforcement may be necessary for the
FDIC to preserve the critical operations
of these affiliated financial companies.
Based on current information and
discussions with several of the PFRAs
who are familiar with financial
78 See 12 U.S.C. 5390(c)(16)(A); 12 CFR
380.12(a)(2).
E:\FR\FM\07JAP4.SGM
07JAP4
986
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
company operations and have
experience supervising financial
companies with QFCs portfolios, the
Secretary believes that the large
corporate groups that would be subject
to the Proposed Rules are likely to have
an existing centralized system for
recording and reporting QFC activities
that they will continue to rely upon to
perform most of the recordkeeping
requirements set forth herein. The entity
within the corporate group responsible
for this centralized system will likely
operate and maintain a technology
shared services model with the majority
of the technology applications, systems,
and data shared by the affiliated
financial companies within the large
corporate group. Therefore, the entity
responsible for this centralized system,
and not the affiliated financial
companies, may be most significantly
impacted by the Proposed Rules. The
affiliated financial companies may be
able to utilize the technology and
network infrastructure operated and
maintained by their respective entities
responsible for the centralized
recordkeeping system. Additionally, the
entities responsible for maintaining
these centralized systems for each large
corporate group will likely exceed the
SBA’s revised size standards for small
entities.79 Accordingly, the Secretary
believes the Proposed Rules will not
have a significant economic effect on a
substantial number of small entities.
The Secretary seeks information and
comment on the role of entities
responsible for the centralized
recordkeeping systems and whether
such entities are small entities to which
the Proposed Rules would apply.
3. Projected Recordkeeping, and Other
Compliance Requirements
As discussed in more detail above, the
Proposed Rules impose certain
recordkeeping requirements on records
entities. A records entity is required to
maintain all records described in
section 148.4 of the Proposed Rules in
electronic form and be able to generate
data in the format set forth in the
Appendix to the Proposed Rules. The
Proposed Rules include, among other
things, recordkeeping requirements with
respect to position-level data,
counterparty-level data, legal
documentation data, and collateral-level
data. Additionally, such records shall be
capable of being transmitted
electronically to the records entity’s
PFRAs.
Based on discussions with several of
the PFRAs who are familiar with
financial company operations and have
79 See
13 CFR 121.201.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
experience supervising financial
companies with QFCs portfolios, the
Secretary believes that records entities
should already be maintaining most of
these QFC records as part of their
ordinary course of business. However,
the Secretary recognizes that the
Proposed Rules’ form and availability
requirements may impose additional
costs and burdens on records entities.
To help reduce these costs and burdens,
section 148.3(c) of the Proposed Rules
provides the Secretary with the ability
to grant general and specific exemptions
from compliance with one or more of
the requirements of the Proposed Rules
under certain circumstances. For
example, the exemption provisions set
forth in the Proposed Rules are designed
to enable the rules to work in
conjunction with the CFTC’s, SEC’s and
other regulatory recordkeeping
requirements, as they would provide the
ability for the Secretary to be flexible in
taking such requirements into account.
Although section 148.3(a)(1) of the
Proposed Rules specifies a standard
format for recordkeeping, the Secretary,
upon receipt of recommendation from
the FDIC made in consultation with the
appropriate PFRAs, could exempt
records entities from this requirement
on the condition that they maintain
electronic records maintained in a swap
data repository or internally in a
different format. Therefore, the format of
proposed Tables A–1 through A–4 of the
Appendix should not complicate
appropriate recordkeeping, so long as
the information set forth in the
Appendix can be provided to the FDIC
in a manner that allows the FDIC to
properly analyze and aggregate the data.
The Proposed Rules further provide the
Secretary with the authority to grant
extensions of time for compliance
purposes.
The Secretary seeks information and
comment on any costs, compliance
requirements, or changes in operating
procedures arising from application of
the Proposed Rules on small entities.
4. Identification of Duplicative,
Overlapping, or Conflicting Federal
Rules
The Secretary does not believe that
any Federal rules duplicate or conflict
with the Proposed Rules. The Proposed
Rules may overlap with certain CFTC
and SEC recordkeeping requirements.
However, the Secretary believes the
Proposed Rules are necessary to assist
the FDIC as receiver for a covered
financial company in deciding whether
to: (1) Transfer the covered financial
company’s QFCs under section 210(c)(9)
and (10) of the Act within the narrow
time window afforded by the Act; (2)
PO 00000
Frm 00022
Fmt 4701
Sfmt 4702
retain such QFCs within the
receivership and allow a counterparty to
terminate the QFCs; (3) retain the QFCs
within the receivership and disaffirm or
repudiate the QFCs; (4) exercise its
rights to enforce certain QFCs of
subsidiaries and affiliates under section
210(c)(16) within the narrow time
window afforded under section
210(c)(10) of the Act; and (5) assess the
consequences of decisions to transfer,
disaffirm or repudiate, or retain QFCs,
including the potential impact that such
decisions may have on the financial
markets as a whole. Additionally, the
exemption provisions set forth in the
Proposed Rules are designed to enable
the rules to work in conjunction with
the CFTC’s and SEC’s recordkeeping
requirements, as they would provide the
ability for the Secretary to be flexible in
taking such requirements into account.
The Secretary seeks comment
regarding any other statutes or
regulations that would duplicate,
overlap, or conflict with the Proposed
Rules.
5. Significant Alternatives to the
Proposed Rules
The Secretary is unaware of any
appropriate alternatives to the Proposed
Rules, other than those included and
discussed in the Proposed Rules, that
accomplish the stated objectives of the
Proposed Rules and that minimize any
significant economic impact of the
Proposed Rules on small entities. The
Secretary requests comment on whether
there are ways to reduce the burdens
associated with the recordkeeping
requirements on small entities
associated with the Proposed Rules.
B. Paperwork Reduction Act
The collection of information
requirements in the Proposed Rules
have been submitted by the Secretary to
the Office of Management and Budget
(‘‘OMB’’) for review in accordance with
the Paperwork Reduction Act of 1995
(the ‘‘PRA’’), 44 U.S.C. 3507(d).
Comments on the collection of
information should be sent to the Office
of Management and Budget, Attention:
Desk Officer for the Department of
Treasury, Office of Information and
Regulatory Affairs, Washington, DC
20503, with copies to the Department of
Treasury at the addresses previously
specified herein. Comments on the
information collection should be
submitted no later than March 9, 2015.
Comments are specifically requested
concerning:
(1) Whether the proposed information
collection is necessary for the proper
performance of agency functions,
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
including whether the information will
have practical utility;
(2) The accuracy of the estimated
burden associated with the proposed
collection of information, including the
validity of the methodology and
assumptions used (see below);
(3) How to enhance the quality,
utility, and clarity of the information
required to be maintained;
(4) How to minimize the burden of
complying with the proposed
information collection, including the
application of automated collection
techniques or other forms of information
technology;
(5) Estimates of capital or start-up
costs and costs of operation,
maintenance, and purchase of services
to maintain the information; and
(6) Estimates of (i) the number of
financial companies subject to the
Proposed Rules, (ii) the number of
records entities that are parties to an
open QFC or guarantee, support, or are
linked to an open QFC, and (iii) the
number of affiliated financial companies
that are parties to an open QFC or
guarantee, support, or are linked to an
open QFC of an affiliate.
The collection of information in the
Proposed Rules is in §§ 148.3 and 148.4
and in Tables A–1, A–2, A–3, and A–
4 of the Appendix. The collection of
information is required by section
210(c)(8)(H) of the Act, which mandates
that the Secretary prescribe regulations
requiring financial companies to
maintain records with respect to QFCs
to assist the FDIC as receiver for a
covered financial company in being able
to exercise its rights under the Act and
fulfill its obligations under section
210(c)(8), (9) or (10) of the Act.
The Proposed Rules implement these
requirements by requiring that a records
entity maintain all records specified in
the Proposed Rules in electronic form
and be capable of generating and
transmitting data electronically to such
records entity’s PFRAs and the FDIC.
The Proposed Rules require that a
records entity be capable of providing
QFC records to its PFRA within 24
hours of the request of such PFRA. The
Proposed Rules set forth various
recordkeeping requirements with
respect to, among other things, positionlevel data, counterparty-level data, legal
documentation data (including copies of
agreements governing QFC transactions
and open confirmations), collateral level
data, a list of affiliates of counterparties
and of the records entity, a list of
vendors supporting QFC-related
activities, risk metrics used to monitor
the QFC portfolio, and risk manager
contact information for each portfolio
that includes QFCs.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
The Proposed Rules also provide that
a records entity may request in writing
a specific exemption from the Proposed
Rules, and may also request an
extension of time with respect to
compliance with the recordkeeping
requirements.
Respondents
The Secretary estimates that
approximately 140 large corporate
groups, and each of their respective
affiliated financial companies that is a
party to an open QFC or guarantees,
supports or is linked to an open QFC of
an affiliate and is not an ‘‘exempt
entity’’, will meet the definition of
records entity in section 148.2(l). This
list of large corporate groups likely
includes bank holding companies,
nonbank financial companies
determined pursuant to section 113 of
the Act to be an entity that could pose
a threat to the financial stability of the
United States, financial market utilities
designated pursuant to Section 804 of
the Act as a financial market utility that
is, or is likely to become, systemically
important; broker-dealers registered
with the SEC under section 15 of the
Securities and Exchange Act of 1934;
investment advisers registered with the
SEC under section 203 of the Investment
Advisers Act of 1940 and unregistered
investment advisers; investment
companies registered with the SEC
under section 8 of the Investment
Company Act of 1940; insurers; real
estate investment trusts; and finance
companies. The Proposed Rules would
also apply to these large corporate
groups’ affiliated financial companies
(regardless of their size) if an affiliated
financial company otherwise qualifies
as a ‘‘records entity’’ and is not an
‘‘exempt entity’’ under the Proposed
Rules.
The Secretary estimates that these
large corporate groups collectively have
23,325 affiliated financial companies
that may qualify as records entities
based on discussions and consultations
with the PFRAs who are familiar with
financial company operations and have
experience supervising financial
companies with QFC portfolios. Because
there is no information available to
determine how many of these affiliated
financial companies are a party to an
open QFC or guarantee, support, or are
linked to an open QFC of an affiliate,
and thus would qualify as records
entities, the Secretary has assumed that
all 23,325 affiliated financial companies
would qualify as record entities. The
Secretary recognizes that, based on a
number of factors, the actual total
number of respondents may differ
significantly from these estimates and
PO 00000
Frm 00023
Fmt 4701
Sfmt 4702
987
requests comment on the total number
of respondents.
The Secretary’s initial recordkeeping,
reporting, data retention, and records
generation burden estimates are based
on discussions with the PFRAs
regarding their prior experience with
initial burden estimates for other
recordkeeping systems. The Secretary
also considered the burden estimates in
rulemakings with similar recordkeeping
and reporting requirements.80
In order to comply with the Proposed
Rules, each of the large corporate group
respondents will need to set up its
network infrastructure to collect data in
the required format. This will likely
impose a one-time initial burden on the
large corporate group respondents in
connection with the necessary updates
to their recordkeeping systems, such as
systems development or modifications.
The initial burden for each large
corporate group respondent to set up its
network infrastructure will depend
largely on whether the financial
companies already hold and maintain
QFC data in an organized electronic
format, and if so, whether the data
currently resides on entirely different
systems rather than on one centralized
system. Large corporate group
respondents may need to amend
internal procedures, reprogram systems,
reconfigure data tables, and implement
compliance processes. Moreover, they
may need to standardize the data and
create records tables to match the format
required by the Proposed Rules.
However, this initial burden is mitigated
to some extent because QFC data is
likely already retained in some form by
each respondent in the ordinary course
of business.
As discussed above, the Proposed
Rule also applies to certain affiliated
financial companies of the large
corporate group respondents. The
Proposed Rules will likely impose a
one-time initial burden on the affiliated
financial companies in connection with
necessary updates to their
recordkeeping systems, such as systems
development or modifications. These
burdens will vary widely among
affiliated financial companies. Their
initial burden will depend largely on
whether the affiliated financial
companies already hold and maintain
QFC data in an organized electronic
format, and if so, whether the data
currently resides on entirely different
systems rather than on one centralized
system.
80 See 76 FR 46960 (August 3, 2011); 76 FR 43851
(July 22, 2011); 77 FR 2136 (January 13, 2012); 75
FR 78162 (December 22, 2008).
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
988
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
The Secretary believes that the large
corporate groups subject to the Proposed
Rules are likely to rely on centralized
systems for their QFC activities that will
perform most of the recordkeeping
requirements set forth herein. The entity
responsible for this centralized system
will likely operate and maintain a
technology shared services model with
the majority of the technology
applications, systems, and data shared
by the multiple affiliated financial
companies within the corporate group.
Therefore, the Proposed Rules will
impose the most significant burden on
the entities responsible for these
centralized systems within the large
corporate group respondents, and not
the affiliated financial companies. The
affiliated financial companies will likely
have a much lower burden because they
can utilize the technology and network
infrastructure operated and maintained
by the entity responsible for the
centralized system at their respective
large corporate group. Similarly, the
Secretary believes that the affiliated
financial companies will rely on the
entities responsible for the centralized
systems to perform the reporting
requirements under section 148.3(c)(2)
and (3).
Similarly, the Secretary believes that
affiliated financial companies will rely
on large corporate group respondents to
submit requests for extensions of time,
specific exemptions, or both.
Recordkeeping
Estimated Number of Respondents:
Estimated Number of large corporate
groups: 140.
Estimated Number of affiliated
financial companies: 23,325.
Total estimated initial recordkeeping
burden:
Estimated average initial burden
hours per respondent: 360 hours for
large corporate groups, 0.5 hours for
affiliated financial companies.
Estimated frequency: Annually.
Estimated total initial recordkeeping
burden: 50,400 hours for large corporate
groups and 11,663 hours for affiliated
financial companies.
Total estimated annual recordkeeping
burden:
Estimated average annual burden
hours per respondent: 120 hours for
large corporate group, 0.5 hours for
affiliated financial companies.
Estimated frequency: Annually.
Estimated total annual recordkeeping
burden: 16,800 hours per year for large
corporate group respondents and 11,663
hours per year for affiliated financial
companies.
The initial and annual recordkeeping
burden is imposed by the Act, which
requires that the Secretary prescribe
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
regulations requiring financial
companies to maintain records with
respect to QFCs to assist the FDIC as
receiver of a covered financial company
in being able to exercise its rights under
the Act and fulfill its obligations under
section 210(c)(8), (9), or (10) of the Act.
Reporting
Estimated Number of Respondents:
140.
Total estimated annual reporting
burden:
Estimated average annual burden
hours per respondent: 25 hours.
Estimated frequency: Annually.
Estimated total annual reporting
burden: 3,500 hours per year.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by OMB.
C. Executive Orders 12866 and 13563
It has been determined that the
Proposed Rules are a significant
regulation as defined in section 3(f)(1) of
Executive Order 12866, as amended.
Accordingly, the Proposed Rules have
been reviewed by OMB. The Regulatory
Assessment prepared by the Secretary
for the Proposed Rules is provided
below.
1. Description of the Need for the
Regulatory Action
The rulemaking is required by the
Dodd-Frank Act to implement the QFC
recordkeeping requirements of section
210(c)(8)(H) of the Act. Section
210(c)(8)(H) generally provides that if
the PFRAs do not prescribe joint final or
interim final regulations requiring
financial companies to maintain records
with respect to QFCs within 24 months
from the date of enactment of the Act,
the Chairperson of the Council shall
prescribe such regulations in
consultation with the FDIC. The
Secretary, as Chairperson of the
Council, is proposing the Proposed
Rules in consultation with the FDIC
because the PFRAs did not prescribe
such joint final or interim final
regulations. The recordkeeping required
in the Proposed Rules is necessary to
assist the FDIC as receiver to exercise its
rights and fulfill its obligations under
section 210(c)(8), (9), and (10) of the
Dodd-Frank Act, by enabling it to assess
the consequences (including any
financial systemic risks) of decisions to
transfer, disaffirm or repudiate, or allow
the termination of, QFCs with one or
more counterparties.
The recent financial crisis has
demonstrated that management of QFC
positions, including steps undertaken to
close out such positions, can be an
PO 00000
Frm 00024
Fmt 4701
Sfmt 4702
important element of a resolution
strategy which, if not handled properly,
may magnify market instability. Large,
interconnected financial companies may
hold very large positions in QFCs
involving numerous counterparties. A
disorderly unwinding of these QFCs,
including the rapid liquidation of
collateral, could cause severe negative
consequences for not only the
counterparties themselves but also U.S.
financial stability.
In order for the FDIC to effectuate an
orderly liquidation of a covered
financial company under Title II and
thereby minimize systemic risk, the
FDIC would need to make appropriate
decisions regarding whether to transfer
QFCs to a bridge financial company or
other solvent financial institution or
leave QFCs in the covered financial
company in receivership. It may not be
possible for the FDIC to fully analyze a
large amount of QFC information in the
short time frame afforded by Title II,
unless such information is readily
available to the FDIC in a standardized
format designed to enable the FDIC to
conduct the analysis in an expeditious
manner.
2. Literature Review
In assessing the need for these
recordkeeping requirements, we have
reviewed two categories of academic
literature. As highlighted above, one of
the potential channels through which
the disorderly unwinding of these QFCs
could cause severe negative
consequences for both the
counterparties themselves and U.S.
financial stability is through the rapid
liquidation of collateral. The disorderly
failure of a financial company with a
large QFC portfolio may lead QFC
counterparties to exercise their
contractual remedies and rights by
closing out positions and liquidating
collateral, while also potentially
increasing uncertainty in both
derivatives and asset markets. This
could lead to lower asset prices,
decrease the availability of funding, and
increase the likelihood that other
financial companies also are forced to
liquidate assets. To assess the potential
impact of rapid liquidations, or ‘‘fire
sales,’’ we have reviewed economic
studies of fire sales among financial
companies. Second, while there is
limited academic literature specifically
focused on the cost of a disorderly
unwinding of a large, complex financial
company’s QFC portfolio, there has
been recent literature analyzing the cost
of the Lehman Brothers bankruptcy in
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
a. Fire Sales Among Financial
Institutions
The economic literature on financial
company fire sales offers insight on
their potential internal and external
impacts. While not directly addressing
QFCs, the fire sale literature can be
applied to the potential impact of the
rapid liquidation of QFC collateral that
might occur in a disorderly unwinding
of a large QFC portfolio.
Principles of Fire Sales Among
Financial Companies. According to the
literature, a fire sale can occur when a
company cannot pay its creditors
without selling assets. During a fire sale,
assets sold may be heavily discounted
below their fundamental values,
depending on the market of
participating buyers. If buyers are other
investors in the asset class or classes
being sold (‘‘specialists’’), prices may
decline little. However, if the fire sale
occurs during a financial crisis when
uncertainty is higher and many
specialists, including financial
companies, may be constrained by
solvency or liquidity pressures, they
may not participate in the other side of
the market. As a result, prices may fall
substantially, to a level at which buyers
who would only buy the assets in
question at a large discount enter the
market. Low sale prices may cause other
financial companies to reduce the value
at which they hold similar assets on
their books when marking to market,
which may trigger a downward spiral
marked by more firms in distress
(Shleifer and Vishny, 2011).82 In
addition, because many financial
companies rely upon short-term sources
of financing, such as repurchase
agreements, the falling asset prices and
heightened uncertainty may contribute
to liquidity pressures as these financing
sources withdraw funding or demand
more collateral. This may force even
solvent financial companies to sell
assets in order to deleverage, decrease
the size of their balance sheets, and
reduce risk. This self-reinforcing cycle
can result in additional fire sales, and
eventually, precipitate or magnify a
financial crisis.
Shleifer and Vishny (2011) believe
that before the September 2008 Lehman
Brothers bankruptcy most specialist
buyers, including most financial
companies, were active in the market,
but after the Lehman bankruptcy most
of them were unwilling to buy assets,
causing security prices to plunge, and
prompting fund withdrawals, collateral
calls, and self-reinforcing fire sales. This
cycle of price collapses and
deleveraging increased the fragility of
the financial system, and disrupted
financial intermediation. The next major
section discusses the Lehman failure in
more detail.
At the time of a fire sale both seller
and non-seller financial companies may
curtail their lending, thereby imposing
additional social costs associated with
reduced financial intermediation.
Shleifer and Vishny (2010) 83 use a
three-period model of bank lending to
illustrate the dynamics. They show that,
in normal times, securitization can lead
to higher lending volumes and earnings,
but market sentiment shocks can
quickly reverse these outcomes. When
banks are highly leveraged, they may be
more vulnerable to unanticipated
shocks. A severe shock can lead them to
liquidate assets in fire sales, fostering
industry-wide asset price declines and
weakening the banking system. In that
environment, banks may forego lending,
both to meet capital requirements and to
preserve the capacity to purchase
deeply discounted assets in the future.
This credit contraction may reduce
economic welfare due to a large number
of potentially profitable investments
that do not receive financing. He et al.
(2010) 84 and Ivashina and Scharfstein
(2010) 85 offer evidence that financial
companies used spare balance sheet
capacity to purchase discounted
securities after the financial crisis rather
than to increase lending. Hence,
foregone lending during a crisis is a
potential social cost, although we do not
include it in our summary of costs
associated with the Lehman Brothers
bankruptcy in the next section, since we
find no specific description of it in this
context in the literature.
Potential Effects on Lending. As
predicted by the theoretical models
discussed above, empirical research
shows bank lending declined sharply
during the crisis. Ivashina and
Scharfstein (2010) show that in August
through December 2008, banks that
81 Lehman Brothers Holdings, Inc. (‘‘Lehman
Brothers’’), Lehman Brothers Inc. (the U.S.
registered broker-dealer), and Lehman Brothers
International (Europe) (the UK registered brokerdealer) were subject to separate liquidation
proceedings.
82 Shleifer, A., and Vishny, R. (2011). Fire Sales
in Finance and Macroeconomics. Journal of
Economic Perspectives 25: 29–48.
83 Shleifer, A. and Vishny, R. (2010). Asset Fire
Sales and Credit Easing. National Bureau of
Economic Research working paper 15652.
84 He, Z., Khang, I.G., and Krishnamurthy, A.
(2010). Balance Sheet Adjustments During the 2008
Crisis. IMF Economic Review 58: 118–156.
85 Ivashina, V. and Scharfstein, D. (2010). Bank
Lending During the Financial Crisis of 2008. Journal
of Financial Economics 97: 319–338.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
2008, which may be illustrative of the
potential costs.81
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
PO 00000
Frm 00025
Fmt 4701
Sfmt 4702
989
depended more heavily on short-term
debt (other than insured deposits),
reduced their business lending by
significantly more than banks less
dependent on short-term debt financing.
At the time of the Lehman bankruptcy,
the paper identifies two channels
driving this result that collectively
constituted a ‘‘run’’ on financial
companies. First, short-term creditors
refused to roll over their unsecured
commercial paper loans and repo
lenders increased collateral
requirements, which particularly
constrained financial companies
dependent on short-term credit for a
significant share of their financing.
Second, borrowers substantially
increased draws on their existing credit
lines ‘‘to enhance their liquidity and
financial flexibility during the credit
crisis.’’ In particular, financial
companies that co-syndicated credit
lines with Lehman Brothers were more
likely to experience larger credit line
drawdowns after the Lehman failure,
and reduced their new lending more
than those without co-syndication
relationships with Lehman. Ivashina
and Scharfstein conclude the results are
consistent with a decline in the supply
of funding as a result of the run
associated with the Lehman event.
On the borrower side, Campello et al.
(2010) 86 surveyed the chief financial
officers of 1,050 nonfinancial firms in
the United States, Europe, and Asia and
found that those that identified their
firms as ‘‘financially constrained’’ 87
during the financial crisis cut back more
on capital and technology investments
compared to those that identified their
firms as ‘‘financially unconstrained.’’
They also cut marketing expenditures
by significantly greater margins, and
shed far more employees (financially
constrained firms planned to cut 10.9
percent of their personnel in 2009,
while financially unconstrained firms
planned to shed 2.7 percent). The
survey revealed that during the crisis,
86 percent of constrained firms reported
foregoing attractive investments,
compared to 44 percent of
unconstrained firms. This suggests the
crisis-related decline in bank credit
supply directly contributed to the
reduction in constrained firms’
investments, and imposed associated
economic effects.
86 Campello, M., Graham, J., and Harvey, C.
(2010). The Real Effects of Financial Constraints:
Evidence from a Financial Crisis. Journal of
Financial Economics 97: 470–487.
87 Derived from survey respondents’ selfassessments of their financial condition.
E:\FR\FM\07JAP4.SGM
07JAP4
990
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
b. Costs of Lehman Brothers Bankruptcy
Numerous researchers have provided
broad estimates of the economic costs of
the 2007–09 financial crisis (see GAO
(2013) 88 for a useful review). This
section focuses more narrowly on the
terminations of derivative contracts
associated with the Lehman bankruptcy
to help illustrate the potential costs of
unwinding the derivatives portfolio of a
large, complex financial company under
the U.S. Bankruptcy Code.
The net worth of Lehman Brothers
derivative positions at the time of
bankruptcy totaled $21 billion, with 96
percent representing over-the-counter
(OTC) positions.89 The portfolio
consisted of more than 6,000 OTC
derivative contracts involving over
900,000 transactions at the time of
bankruptcy on September 15, 2008.
Fleming and Sarkar’s (2014) 90 detailed
assessment of the Lehman Brothers
bankruptcy finds the overall recovery
rate of all allowed unsecured claims
(not limited to QFCs) amounted to
roughly 28 percent, a rate the authors
describe as low relative to both an
estimated 59 percent for other financial
company failures and 40 percent for
failures occurring in recessions.
We use a framework that divides costs
associated with derivatives resolution
into private costs and public (external)
costs. Private costs consist of direct
losses to derivatives counterparties from
unrecovered claims, indirect costs to
derivatives counterparties from loss of
hedged positions, costs to other Lehman
Brothers creditors in the bankruptcy
proceeding due to reductions in
recovery values resulting from the
termination and settlement of OTC
derivatives, and litigation and
administrative expenses. While we find
no literature that assesses the public
costs directly attributable to the
resolution of Lehman’s derivatives
portfolio, below we examine the
literature assessing the public impact of
Lehman’s failure more broadly.
While rigorous estimates of the value
of each cost element listed above would
be ideal, in reality we are constrained by
a lack of publicly available data.
Therefore, this section combines
88 Government Accountability Office, Financial
Regulatory Reform: Financial Crisis Losses and
Potential Impacts of the Dodd-Frank Act, GAO–13–
180 (January 16, 2013).
89 Most derivatives were held in several
subsidiaries specializing in derivatives and related
instruments. Since Lehman had numerous
subsidiaries with intermingled interests, we
simplify the discussion by describing them as if
they were a single entity, except when specificity
is necessary for descriptive accuracy.
90 Fleming, M. and Sarkar, A. (2014). The Failure
Resolution of Lehman Brothers. Economic Policy
Review 20(2). Federal Reserve Bank of New York.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
qualitative descriptions of costs with
limited quantitative information when
available, in an effort to provide insight
on the costs of resolving Lehman’s QFC
portfolio under the bankruptcy
proceedings.
Private Derivatives Counterparty
Costs: Unrecovered Claims. Estimates of
bankruptcy claim recovery rates of OTC
derivative counterparties (excluding
Lehman affiliate claims) are reported in
the literature at the Lehman subsidiary
level, and vary widely, ranging from 31
percent for Lehman Brothers Special
Financing (the largest Lehman
derivatives entity) to 100 percent each
for Lehman Brothers OTC Derivatives,
Lehman Brothers Derivatives Products,
and Lehman Brothers Financial
Products, as of March 27, 2014 (Fleming
and Sarkar (2014)). Still the authors
emphasize that, ‘‘most counterparties of
Lehman’s OTC derivatives suffered
substantial losses.’’
Private Derivatives Counterparty
Costs: Loss of Hedged Positions. A key
reason for many counterparties to
acquire derivative positions is to hedge
against potential future market
developments. These hedges reduce
uncertainties and serve as valuable risk
management instruments. Fleming and
Sarkar (2014) suggest Lehman’s abrupt
bankruptcy took counterparties by
surprise, and allowed them little time to
assess their derivative positions facing
Lehman, decide whether to terminate
contracts, and rehedge their positions as
needed.91 Therefore, many
counterparties lost their hedged
positions within a brief period and were
unexpectedly exposed to risks until new
positions could be established. We find
no estimates of the costs of these lost
hedges in the literature.
Private Costs to the Entire Lehman
Bankruptcy Estate: Settlement of OTC
Derivatives. Fleming and Sarkar (2014)
note that the settlement of Lehman’s
OTC derivatives claims may have also
resulted in significant losses to the
Lehman bankruptcy estate. Derivatives
valuation claims are generally based on
replacement costs and they note that
due to the large prevailing bid-ask
spreads at the time of Lehman’s
bankruptcy filing, replacement costs
91 Fleming and Sarkar believe the selection of the
termination date for safe harbor purposes
influenced this. They write (p. 25), ‘‘Although
Lehman filed for bankruptcy protection at about
1:00 a.m. on Monday, September 15, 2008, the
termination date was set as Friday, September 12
for derivatives subject to automatic termination.
Normally, nondefaulting derivatives counterparties
of Lehman would have attempted to hedge their
positions on Monday to mitigate expected losses on
their position. However, they could not do so since
their positions were deemed to have terminated two
days earlier.’’
PO 00000
Frm 00026
Fmt 4701
Sfmt 4702
may have diverged significantly from
fair value. During the settlement process
the Lehman estate received $11.85
billion in OTC derivatives receivables
by January 10, 2011. It is unclear how
much in additional receivables may
have been ‘‘lost’’ by Lehman due to the
termination and settlement of contracts
following its bankruptcy filing. The
literature notes that the relatively abrupt
timing of the bankruptcy filing may
have also influenced the magnitude of
losses. Valukas (2010) suggested that
Lehman insufficiently planned for the
possibility of bankruptcy, such that
management only began to plan
seriously for bankruptcy a few days
before the bankruptcy filing. A
bankruptcy court document 92 cites a
‘‘turnaround specialist’’ advising
Lehman, Bryan Marsal, as telling the
court-appointed examiner that the
sudden bankruptcy resulted in the loss
of 70 percent of $48 billion of
receivables from derivatives that could
have been unwound. Yet, the same
document notes that Lehman counsel
Harvey Miller did not think the rushed
filing had an adverse impact on the
estate (Valukas 2010). These accounts
appear anecdotal and no information is
provided on the derivation of the figures
cited by Marsal.
Private Costs: Litigation and
Administrative. The extended duration
of the OTC derivatives settlement
process included multiple court
petitions, procedure approvals,
settlement mechanisms, and legal
challenges. While 81 percent of
derivative contracts in claims against
Lehman were terminated by November
13, 2008, the final settlement process
moved more deliberately due to the
multiple steps involved in properly
addressing the unprecedented scale and
complexity of claims within the
bankruptcy process. Only 84 percent of
derivatives claims had been settled by
the end of 2012. Estimates of litigation
and administrative expenses for OTC
derivatives alone are not available, but
these expense categories for the full
Lehman settlement process were
estimated to total $3.2 billion as of May
13, 2011 (Fleming and Sarkar (2014)).
Public Costs: Externalities. The event
study is a common method of estimating
the market impact of a particular event.
Measured market reactions to the
Lehman bankruptcy are based on the
institution’s failure event as a whole;
they are not reactions to the QFC
resolution process alone and therefore
92 Valukas, A. (2010). ‘‘Report of the Examiner in
the Chapter 11 Proceedings of Lehman Brothers
Holdings Inc.’’ March 11. Accessed at: https://
jenner.com/lehman/.
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
overstate the impacts of these
terminations. We may plausibly assume,
however, that the market reactions to
the overall Lehman collapse
announcement included a component
associated with potential costs of
settling their derivative contracts.93
Johnson and Mamun (2012) 94 apply
an event study approach to assess stock
market reactions of a sample of 742 U.S.
financial institutions—divided into
banks, savings and loans, brokers, and
primary dealers—on the date of the
Lehman bankruptcy filing. While each
group of institutions showed negative
abnormal returns, only the bank (-3
percent) and primary dealer (-6 percent)
coefficients were statistically
significant. The data strongly support
the notion that the event had differential
impacts by type of financial institution
and abnormal returns across institution
groups were jointly significantly
different from zero.
Dumontaux and Pop (2012) 95 apply a
similar approach to assess stock market
reactions of a sample of 382 U.S.
financial companies, using brief event
windows. They report heterogeneous
outcomes according to institution size
and business lines. Among the twenty
large companies 96 (excluding Lehman
Brothers), cumulative abnormal stock
price returns were highly significantly
negative, ranging from -10 percent to -18
percent over five distinct event
windows of up to five days in duration.
However, the effects on the full sample
were not statistically significant,
indicating the immediate contagion
effect was limited to large companies.
The results of both event studies suggest
the Lehman bankruptcy likely imparted
immediate negative external effects on a
subset of financial companies, causing
substantial drops in their market
valuations. We did not find event
studies specifically assessing market
impacts on non-financial firms.
Domestic Public Support: Federal
Reserve Facility. The Federal Reserve
provided substantial liquidity to the
markets during the 2007–2009 period.
Fleming and Sarkar (2014) consider the
93 Still, we caution that event study results may
produce ‘‘noisy’’ signals. For example, attribution is
problematic as the period surrounding the Lehman
collapse was a particularly active one with nearly
two dozen significant economic events in
September 2008.
94 Johnson, M.A. and Mamun, A. (2012). The
Failure of Lehman Brothers and its Impact on Other
Financial Institutions. Applied Financial
Economics 22: 375–385.
95 Dumontaux, N. and Pop, A. (2012). ‘‘Contagion
Effects in the Aftermath of Lehman’s Collapse:
Measuring the Collateral Damage.’’ University of
Nantes working paper 2012/27.
96 Large financial companies are defined as those
with total assets over $1 billion in their last audited
report before the event date.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
support to Lehman in the first week
after the bankruptcy as a critical factor
in the recovery of claims against at least
part of Lehman Brothers, which allowed
it to keep operating until it was acquired
by Barclays. Between September 15 and
18, 2008, Lehman Brothers Inc.
borrowed $68 billion from the Primary
Dealer Credit Facility (PDCF). Because
the borrowed funds were fully
collateralized and repaid in full with
interest, the Congressional Budget
Office (2010) 97 estimated that total
lending through the PDCF involved a
negligible subsidy value.
Global Public Costs: Externalities. The
economic literature is rich with event
studies of market reactions to policy
announcements designed to alleviate
the financial crisis, however, we find no
studies focusing directly on the global
market impacts of the Lehman Brothers
bankruptcy as an event. We also
acknowledge global spillovers as a
potential public cost, however, we find
no studies focusing directly on the
global impacts of the Lehman Brothers
bankruptcy as an event.
c. Conclusion
The economic literature on financial
asset fire sales maintains that such
events are more systemically harmful
when occurring during industry-wide
periods of distress, making mitigating
these costs a public policy concern. The
Lehman Brothers bankruptcy and the
resulting QFC terminations occurred
during a crisis period, and might have
imposed widespread private and public
costs. We do not compare the Lehman
bankruptcy costs to the alternative of
potential resolution costs under a
counterfactual case had Title II of the
Dodd-Frank Act been in effect at the
time of the Lehman bankruptcy filing.
3. Baseline
The FDIC promulgated 12 CFR part
371, Recordkeeping Requirements for
Qualified Financial Contracts (‘‘Part
371’’), pursuant to section 11(e)(8)(H) of
the FDIA.98 The FDIC’s QFC
recordkeeping rule applies to insured
depository institutions which are in a
troubled condition, and was
promulgated to enable the FDIC as
receiver to make an informed decision
as to whether to transfer or retain QFCs
and also thereby minimize the potential
for market disruptions that could occur
with respect to the liquidation of QFC
portfolios of insured depository
institutions. However, Part 371 does not
97 Congressional
Budget Office. (2010). The
Budgetary Impact and Subsidy Costs of the Federal
Reserve’s Actions During the Financial Crisis.
98 12 U.S.C. 1821(e)(8)(H).
PO 00000
Frm 00027
Fmt 4701
Sfmt 4702
991
apply to non-depository financial
companies that are eligible for
resolution under Title II of the Dodd
Frank Act. The proposed recordkeeping
requirements of the Proposed Rules are
based, in part, on Part 371, and have
been informed by the FDIC’s experience
with both large and small portfolios of
QFCs of failed insured depository
institutions. However, the information
requirements of the Proposed Rules are
more extensive. While Part 371 requires
certain position-level data and
counterparty-level data, the Proposed
Rules require certain position-level data
and counterparty-level data that are not
required by Part 371. Part 371 also does
not require recordkeeping with regard to
Legal Agreements or Collateral Detail
Data to the same extent as is
contemplated in Tables A–3 and A–4 to
the Appendix in the Proposed Rules.
Similar to the Proposed Rules, under
Part 371, any insured depository
institution that is subject to the
requirements must produce and
maintain the required records in an
electronic format, unless the institution
has fewer than twenty open QFC
positions. However, under Part 371 the
records do not necessarily need to be
maintained in a standardized format,
but must be maintained in a format that
is acceptable to the FDIC.
Based on staff-level discussions with
the PFRAs who are familiar with
financial company operations and have
experience supervising financial
companies with QFC portfolios, the
Secretary believes that the large
corporate groups that would be subject
to the Proposed Rules should already be
maintaining most or all of the QFC
records required under the Proposed
Rules as part of their ordinary course of
business. In order for these large
corporate groups to effectively manage
their QFC portfolios, they need to have
robust recordkeeping systems in place.
For example, large corporate groups that
trade derivatives out of several distinct
legal entities need to have detailed
records, including counterparty
identification, position-level data,
collateral received and posted, and
contractual requirements, in order to
effectively manage their portfolio,
perform on contracts, and monitor risks.
However, it is unlikely that these large
corporate groups are maintaining the
QFC records in the standardized format
prescribed by the Proposed Rules and as
set forth in the Appendix to the
Proposed Rules.
4. Evaluation of Alternatives
The Secretary considered alternative
forms of the proposed rules, but believes
that the current form is the best
E:\FR\FM\07JAP4.SGM
07JAP4
992
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
available method of achieving the
regulatory objectives. The assessment of
alternatives below is organized into
three subcategories: (a) Scope of the
proposed rules; (b) content of records;
and (c) standardized recordkeeping.
a. Scope of the Proposed Rules
In developing the definition of a
records entity, the Secretary took into
consideration factors such as financial
company size, risk, complexity,
leverage, frequency and dollar amount
of QFCs, and interconnectedness to the
financial system, as well as other factors
described herein. The Secretary
included the following entities within
the scope of the definition of a records
entity: Financial companies that have at
least $50 billion in assets, financial
companies that the Council determines
could pose a threat to U.S. financial
stability, and financial companies that
the Council designates as systemically
important financial market utilities.
The Secretary believes that the $50
billion asset threshold is a useful means
for identifying entities that are of a
sufficient size that they could
potentially be considered for orderly
liquidation under Title II, and therefore
should be incorporated in the definition
of a records entity. A $50 billion asset
threshold has been separately
established for similar purposes under
the Dodd-Frank Act.99 In particular, the
Council applies a $50 billion threshold
as an initial evaluation tool for
determining whether a nonbank
financial company could pose a threat
to the financial stability of the U.S. and
should potentially be subject to
enhanced prudential standards under
Title I of the Dodd-Frank Act.
The Secretary considered alternative
criteria in developing the definition of
a records entity, such as including
financial companies that have more
than $10 billion in assets. This
threshold, which would have captured
more financial companies that
potentially might be considered for
orderly liquidation under Title II, has
been used in other regulatory
requirements. For example, the DoddFrank Act requires certain financial
companies with more than $10 billion
in total consolidated assets to conduct
annual stress tests.100 Additionally, the
CFTC’s final rule on the end-user
exemption to the clearing requirement
for swaps exempts banks, savings
associations, farm credit system
institutions, and credit unions with total
assets of $10 billion or less from the
definition of ‘‘financial entity,’’ making
99 See
100 12
e.g., 12 U.S.C. 5365(a).
U.S.C. 5365(i)(2).
VerDate Sep<11>2014
18:33 Jan 06, 2015
such ‘‘smaller’’ financial institutions
eligible for the end-user exception.101
However, the Secretary determined
that while it is possible that financial
companies with more than $10 billion
and less than $50 billion in total assets
potentially would be considered for
orderly liquidation under Title II, $50
billion was a more appropriate
threshold. Including all financial
companies with over $10 billion in total
assets would substantially increase the
number of financial companies subject
to recordkeeping requirements, many of
which would likely not be considered
for orderly liquidation under Title II. A
financial company (including a bank
holding company) with total assets of
$50 billion or more, is the type of
financial company that potentially
would be the most likely to be
considered for orderly liquidation under
Title II. The definition of records entity
is thus designed to reduce
recordkeeping burdens on smaller
financial companies by only capturing
those financial companies with QFC
positions for which the FDIC is most
likely to be appointed as receiver.
The Secretary seeks comment on the
following questions: Is the scope of the
Proposed Rules adequate? Should
additional or different criteria be used to
define a records entity? If so, what
criteria would be appropriate? For
example, should the rules exempt
certain entities based on the number of
QFC counterparties, QFC notional
amounts, or QFC mark-to-market values
as of a particular date? If so, at what
levels should such exemptions be set?
Should there be any other form of de
minimis exemption from these criteria?
Please provide specific explanations of
how such criteria would be applied
together with an explanation of whether
such criteria would affect the FDIC’s
ability to resolve a QFC portfolio.
b. Content of Records
The Secretary determined, after
consulting with the FDIC, that requiring
each records entity to maintain the data
included in Tables A–1 through A–4 of
the Appendix to the Proposed Rules is
necessary to assist the FDIC in being
able to effectively exercise its rights
under the Act and fulfill its obligations
under section 210(c)(8), (9), or (10) of
the Act. To facilitate the resolution of
QFC portfolios, the FDIC needs to
analyze such data and, upon being
appointed as receiver under Title II,
effectuate decisions with respect to the
exercise of such rights. The information
must be sufficient to allow the FDIC to
estimate the financial and operational
101 17
Jkt 235001
PO 00000
CFR 39.6(d).
Frm 00028
Fmt 4701
impact on the covered financial
company and its counterparties, or
affiliated financial companies, of the
FDIC’s decision to transfer, disaffirm or
repudiate, or retain the QFCs. It must
also allow the FDIC to assess the
potential impact that such decisions
may have on the financial markets as a
whole.
The position-level data included in
Table A–1 to the Appendix is intended
to enable the FDIC to evaluate a records
entity’s exposure to its counterparties.
The FDIC would also use these data to
evaluate the effects of the receiver’s
determination to transfer, disaffirm or
repudiate, or retain QFCs. In addition,
position-level information would assist
the receiver or any transferee to comply
with the terms of the QFCs and reduce
the likelihood of inadvertent defaults.
For example, a unique position
identifier would allow for the tracking
and separation of positions maintained
by the records entity.
The primary objective of proposed
Table A–2 to the Appendix is to identify
exposure of the records entity to each
counterparty and its affiliates, as well as
the exposure that counterparties might
have to the records entity. This
information would enable the FDIC to
determine the effects of transfer or
termination of QFCs with a given
counterparty and the potential risk of
contagion in the financial markets.
Table A–2 would also require
comprehensive collateral information,
including market value of collateral,
location of collateral, and any custodial
and segregation arrangements. Collateral
excess or deficiency positions as well as
collateral thresholds and valuation
discounts also would need to be
maintained. This information would
enable the FDIC as receiver to evaluate
counterparty relationships and
determine if the receivership would
benefit from retaining and repudiating
QFCs with certain counterparties. It
would also enable the FDIC as receiver
to comply with the requirements of the
Act by transferring QFC obligations
together with the related collateral.102 In
addition, it would enable the receiver to
identify excess collateral of
counterparties for possible return
should the contracts be terminated after
the one business day stay.
Table A–3 to the Appendix would
require the maintenance of legal
agreement data for each QFC agreement
or master agreement between each
records entity and counterparty.
Because the receiver has a limited
period of time in which to evaluate QFC
provisions, the availability of the legal
102 12
Sfmt 4702
E:\FR\FM\07JAP4.SGM
U.S.C. 5390(c)(9)(A)(i)(IV).
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
agreements in fully searchable
electronic form is of utmost importance.
In particular, the identification of any
support by or linkage to a parent entity
or affiliate and the identification of any
transfer restrictions and non-standard
covenants would enable the FDIC as
receiver to evaluate the treatment of
QFCs under such contracts in an orderly
liquidation of the records entity or its
affiliated financial company under Title
II of the Act.
Table A–4 to the Appendix would
require each records entity to maintain
collateral detail data both with respect
to collateral received and with respect
to collateral posted on a counterpartyby-counterparty basis. The data in this
Table, together with the data in Table
A–2, would allow the FDIC to better
understand the QFC portfolio risk, and
to model various QFC transfer or
termination scenarios.
As indicated above, the proposed
recordkeeping requirements of the
Proposed Rules are similar to the FDIC’s
Part 371 but the information
requirements of the Proposed Rules are
more extensive. The Secretary
considered reducing recordkeeping
burden by aligning the requirements
more closely with those of the FDIC’s
Part 371. However, the Secretary
determined, in consultation with the
FDIC, that additional recordkeeping
beyond that required by Part 371 would
be needed for the FDIC to resolve a
financial company with significant QFC
positions under Title II. In particular,
the FDIC will need this additional
information to analyze the QFC
portfolio and determine whether to
transfer, disaffirm or repudiate, or retain
the QFCs during the one business day
stay and to perform the obligations
under the QFCs, including meeting
collateral requirements. For example,
the proposed position-level and
counterparty-level data included in
Tables A–1 and A–2 to the Appendix
would require recordkeeping for interaffiliate transactions, which was not
included in Part 371. Recordkeeping
with respect to inter-affiliate QFCs is
necessary to enable the FDIC to quickly
understand all QFC linkages in a
corporate group and to evaluate the
potential systemic effects of FDIC
decisions. Table A–2, the counterparty
collateral data, is also more extensive
than the FDIC’s Part 371 due to the
inclusion of pending margin calls in the
calculation of the excess or deficiency of
the counterparty’s collateral. This will
assist the FDIC in meeting the
obligations under the QFCs, including
certain clearing organization margin
calls. The Table A–3 legal agreements,
which were not included in Part 371,
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
are necessary to enable the FDIC as
receiver to evaluate the treatment of
QFCs under such contracts, including
any support by or linkage to a parent
entity or affiliate and the identification
of any transfer restrictions and nonstandard covenants. Table A–4 includes
additional collateral detail data, such as
the collateral jurisdiction, the collateral
segregation status, and whether the
collateral may be subject to rehypothecation by the counterparty.
These additional data are necessary to
enable the FDIC to assess risks
associated with the collateral and
improve the FDIC’s ability to analyze
various QFC transfer or termination
scenarios. For example, for cross-border
transactions, this information would
help the FDIC evaluate the availability
of collateral in different jurisdictions
and the related close-out risks if the
receiver cannot arrange for the transfer
of QFC positions under local law.
Because the information requirements
of the Proposed Rules are more
extensive than Part 371, the Secretary,
in consultation with the FDIC, has also
proposed to allow for a longer
compliance period than the compliance
period set forth under Part 371. An
insured depository institution subject to
the FDIC’s Part 371 recordkeeping
requirements must comply within 60
days of notification.103 Under the
Proposed Rules, a financial company
would be required to comply with the
recordkeeping requirements within 270
days of becoming a records entity.
The Secretary seeks comment on the
following questions: Are any of the
proposed recordkeeping requirements
not necessary or appropriate to assist
the FDIC as receiver? Please include the
rationale for why these requirements are
not necessary or appropriate. Should the
determination on whether some records
are not necessary or appropriate be
based on the type of records entity?
Would any of the contemplated records
(including any of the data fields in the
appendix) or data result in unnecessary
burden on records entities? Are there
ways to further align the recordkeeping
requirements set forth herein with the
requirements of other recordkeeping
and reporting rules to reduce regulatory
burden (e.g., the respective CFTC and
SEC regulations on swap and securitybased swap data recordkeeping and
reporting?) If so, how should this
burden be reduced? Do the proposed
recordkeeping requirements
appropriately measure and identify the
size and complexity of entities that
likely qualify as records entities? Are
there any additional records or data that
103 12
PO 00000
CFR 371.1(c).
Frm 00029
Fmt 4701
Sfmt 4702
993
would assist the FDIC in its role as
receiver with respect to a covered
financial company? If so, please explain
the rationale for why such additional
records or data is necessary.
c. Standardized Recordkeeping
The Secretary determined that
requiring records entities to have the
capacity to maintain and generate QFC
records in the uniform, standardized
format set forth in the Appendix to the
Proposed Rules is necessary to assist the
FDIC in being able to effectively
exercise its rights under the Act and
fulfill its obligations under section
210(c)(8), (9), or (10) of the Act.
Specifically, when the FDIC is
appointed as receiver of a covered
financial company, the covered
financial company’s QFC counterparties
are prohibited from exercising their
contractual right of termination until 5
p.m. (eastern time) on the first business
day following the date of appointment.
After its appointment as receiver and
prior to the close of the aforementioned
5 p.m. deadline, the FDIC has three
options in managing a covered financial
company’s QFC portfolio. Specifically,
with respect to all of the covered
financial company’s QFCs with a
particular counterparty and all its
affiliates, the FDIC may: (1) Transfer the
QFCs to a financial institution,
including a bridge financial company
established by the FDIC; (2) retain the
QFCs within the receivership and allow
the counterparty to exercise contractual
remedies to terminate the QFCs; or (3)
retain the QFCs within the receivership,
disaffirm or repudiate the QFCs, and
pay compensatory damages. If the FDIC
transfers the QFCs to a financial
institution, the counterparty may not
terminate the QFCs solely by reason of
the covered financial company’s
financial condition or insolvency or the
appointment of the FDIC as receiver. If
the FDIC does not transfer the QFCs and
does not repudiate such QFCs, the
counterparty may exercise contractual
remedies to terminate the QFCs and
assert claims for payment from the
covered financial company and may
have rights to liquidate the collateral
pledged by the covered financial
company.
The Secretary considered reducing
recordkeeping burdens by requiring the
maintenance of non-standardized
records. After consulting with the FDIC,
the Secretary determined that this
alternative may reduce the FDIC’s
flexibility in managing the QFC
portfolio, increase systemic risk, and
impair the FDIC’s ability as receiver to
manage the assets of the covered
financial company in terms of
E:\FR\FM\07JAP4.SGM
07JAP4
994
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
maximizing the value of the assets in
the context of orderly liquidation.104 For
example, in the absence of updated and
standardized information, it is possible
that QFCs could be transferred to a
bridge financial company, when leaving
them in the receivership would be a
better course of action. If such QFCs
were transferred to the bridge financial
company, the bridge financial company
would be required to perform the
obligations under the QFCs, including
meeting collateral requirements, and, to
the extent set forth in the QFCs, would
be liable for losses under the
contracts.105 Alternatively, QFCs could
be left in the receivership, when transfer
to a solvent financial institution or a
bridge financial company would be a
better course of action. In such a case,
the lack of uniform data may, among
other things, prevent the FDIC from
determining the value of any collateral
pledged to secure the QFCs and from
considering the impact QFC
terminations may have on broader
financial stability.
However, while the Proposed Rules
specify a standardized recordkeeping
format, the Secretary also recognizes the
need to provide flexibility for possible
alternate recordkeeping formats if they
are sufficient to meet the needs of the
FDIC. The Proposed Rules provide the
Secretary with the discretion to grant
conditional or unconditional
exemptions from compliance with one
or more of the requirements of the
Proposed Rules, which could include
exemptions to the standardized
recordkeeping format. For example, a
conditional exemption could be granted
if an alternate format, such as one used
for a separate recordkeeping
requirement, would still allow the FDIC
to manipulate and analyze the data to
determine the effect of FDIC decisions
under Title II with respect to a covered
financial company’s QFC portfolio and
enable the FDIC to fulfill its obligations
under section 210(c)(8), (9), or (10) of
the Act within the narrow time window
afforded by section 210(c)(10) of the
Act.
5. Affected Population
Instead of requiring all financial
companies to maintain records with
respect to QFCs, the Secretary is
limiting the scope of the Proposed Rules
to a smaller subset of financial
companies. Discretion to do so is
afforded under section 210(c)(8)(H)(iv)
of the Act, which authorizes
104 12
U.S.C. 5390(a)(1)(B)(iv).
FDIC article, ‘‘The Orderly Liquidation of
Lehman Brothers Holdings Inc. under the DoddFrank Act’’ (2011), p.8, available at https://www.fdic.
gov/regulations/reform/lehman.html.
105 See
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
differentiation among financial
companies by taking into consideration,
among other things, their size and risk.
The Secretary is exercising this
discretion to exclude from the scope of
the Proposed Rules financial companies
that do not meet one of the following
three criteria: (1) Are designated
pursuant to section 113 of the Act (12
U.S.C. 5323) to be a nonbank financial
company that could pose a threat to U.S.
financial stability; (2) are designated
pursuant to section 804 of the Act (12
U.S.C. 5463) as a financial market utility
that is, or is likely to become,
systemically important; or (3) have total
assets equal to or greater than $50
billion. Since the Act’s enactment in
2010 through 2013, eleven financial
companies have been designated by the
Council under categories (1) and (2),
and the Secretary’s understanding is
that each of those designated companies
has revenues in excess of the Small
Business Administration’s revised size
standards for small entities. As a result,
the Proposed Rules would only apply to
large corporate groups (including a large
corporate group’s affiliated financial
companies, regardless of their size, if
the affiliated financial company is a
party to an open QFC or guarantees,
supports or is linked to an open QFC of
an affiliate and is not an ‘‘exempt
entity’’ under the Proposed Rules).
The types of financial companies that
would qualify as records entities under
the Proposed Rules include: Bank
holding companies, savings and loan
holding companies, broker-dealers,
derivatives clearing organizations,
payment and settlement systems, and
registered clearing agencies. The
Secretary proposes that the
recordkeeping requirements in the
Proposed Rules apply to all affiliated
financial companies in a large corporate
group that meet the definition of records
entity, regardless of their size, because
a broad exemption for small entities
could significantly impair the FDIC’s
ability to enforce certain QFCs of
affiliates of covered financial companies
under section 210(c)(16) of the Act
within the narrow time window
afforded by section 210(c)(10) of the
Act.
6. Assessment of Potential Costs and
Benefits
a. Potential Costs
Based on discussions with the PFRAs
who are familiar with financial
company operations and have
experience supervising financial
companies with QFC portfolios, the
Secretary believes that the costs of
implementing the Proposed Rules may
PO 00000
Frm 00030
Fmt 4701
Sfmt 4702
be mitigated by the fact that records
entities should be maintaining most of
the QFC records required by the
Proposed Rules as part of their ordinary
course of business. However, the
Secretary recognizes that the Proposed
Rules’ standardized form and
availability requirements may impose
costs and burdens on records entities. In
order to comply with the Proposed
Rules, each of the approximately 140
large corporate groups that the Secretary
estimates would be subject to the
recordkeeping requirements will need to
have network infrastructure to maintain
data in the required format. The
Secretary expects that this will likely
impose one-time initial costs on each
large corporate group in connection
with necessary updates to their
recordkeeping systems, such as systems
development or modifications. The
initial costs to set up network
infrastructure will depend on whether a
large corporate group already holds and
maintains QFC data in an organized
electronic format, and if so, whether the
data currently reside on different
systems rather than on one centralized
system. Large corporate groups may
need to amend internal procedures,
reprogram systems, reconfigure data
tables, and implement compliance
processes. Moreover, they may need to
standardize the data and create tables to
match the format required by the
Proposed Rules. However, the Secretary
believes that the large corporate groups
that would be subject to the Proposed
Rules are likely to rely on existing
centralized systems for recording and
reporting QFC activities to perform most
of the recordkeeping and reporting
requirements set forth herein. The entity
within the corporate group responsible
for this centralized system will likely
operate and maintain a technology
shared services model with the majority
of technology applications, systems, and
data shared by the affiliated financial
companies within the large corporate
group. Therefore, the Proposed Rules
will likely impose the most significant
costs on the entities responsible for the
centralized systems within the large
corporate group, and not on the
affiliated financial companies. The
affiliated financial companies will likely
have much lower costs because they can
utilize and rely upon the technology
and network infrastructure operated and
maintained by the entity responsible for
the centralized system within the large
corporate group.
It is estimated that the initial
recordkeeping burden for all records
entities will be approximately 62,063
hours with a total one-time initial cost
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
of approximately $8,030,599.106 The
total estimated annual recordkeeping
burden for all records entities will be
approximately 28,463 hours with a total
annual cost of approximately
$2,077,799. The estimated average
hourly wage rate for recordkeepers to
comply with the initial and annual
recordkeeping burden is approximately
$73 per hour based in part on the U.S.
Department of Labor, Bureau of Labor
Statistics’ national occupational
employment statistics and wage
statistics, dated May 2012.107
With regard to reporting burdens
under the Proposed Rules, a records
entity may request in writing an
extension of time with respect to
compliance with the recordkeeping
requirements or a specific exemption
from the recordkeeping requirements.
The total estimated annual reporting
burden under the Proposed Rules will
be approximately 3,500 hours with a
total annual cost of approximately
$542,500. The estimated average hourly
rate for recordkeepers to comply with
the annual reporting burden is
approximately $155 per hour based on
the U.S. Department of Labor, Bureau of
Labor Statistics’ national occupational
employment statistics and wage
statistics, dated May 2012.108
The Secretary seeks comment on
whether the cost estimates are
reasonable.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
b. Potential Benefits
As noted earlier, QFCs tend to
increase the interconnectedness of the
106 This amount includes $3,500,000 in systems
development/modification costs. Specifically, based
in part on staff-level discussions with several of the
PFRAs, it is expected that each of the
approximately 140 large corporate groups will incur
approximately $25,000 in systems development/
modification costs, including the purchase of
computer software, with a total cost of
approximately $3,500,000. These costs will likely
be borne by the entity responsible for maintaining
the centralized system within each large corporate
group. Additionally, the total estimated initial cost
for large corporate group respondents to comply
with the initial recordkeeping burden is $3,679,200,
based on the following formula: Initial burden
hours multiplied by the average hourly wage rate
for recordkeepers (50,400 hours multiplied by $73/
hour). The total estimated initial cost for affiliated
financial company respondents to comply with the
initial recordkeeping burden is $851,399, based on
the following formula: Initial burden hours
multiplied by the average hourly wage rate for
recordkeepers (11,663 hours multiplied by $73/
hour).
107 The $73 hourly wage rate is based on the
average hourly wage rates for senior programmers,
programmer analysts, senior system analysts,
compliance managers, compliance clerks, directors
of compliance, and compliance attorneys that will
conduct the recordkeeping.
108 The $155 hourly wage rate is based on the
average hourly wage rates for compliance managers,
directors of compliance, and compliance attorneys
that will conduct the reporting.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
financial system and systemic risk, and
the recent financial crisis demonstrated
that the management of QFC positions
can be an important element of a
resolution strategy which, if not
handled properly, may magnify market
instability. The recordkeeping
requirements of the Proposed Rules are
designed to ensure that the FDIC, as
receiver of a covered financial company,
will have comprehensive information
about the QFC portfolio of such
financial company subject to orderly
resolution, and enable the FDIC to carry
out the rapid and orderly resolution of
a financial company’s QFC portfolio in
the event of insolvency, for example, by
transferring QFCs to a bridge financial
company within the narrow time
window afforded by the Act. Given the
short time frame for FDIC decisions
regarding a QFC portfolio of significant
size or complexity, the Proposed Rules
would require the use of an updated and
standardized format to allow the FDIC
to process the large amount of QFC
information quickly. In the absence of
updated and standardized information,
it is conceivable that, for example, the
FDIC could leave QFCs in the
receivership when transferring to a
bridge financial company or other
solvent financial institution would have
been the preferred course of action had
better information been available.
Specifically, if the FDIC does not
transfer the QFCs and does not
repudiate such QFCs, counterparties
may terminate the QFCs and assert
claims for payment from the covered
financial company and may have rights
to liquidate the collateral pledged by the
covered financial company. Because a
large, interconnected financial company
can often hold very large positions in
QFCs involving numerous
counterparties, the disorderly
unwinding of QFCs, including the rapid
liquidation of collateral, could cause
severe negative consequences for U.S.
financial stability. The FDIC as receiver
may also wish to make sure that
affiliates of the covered financial
company continue to perform their QFC
obligations in order to preserve the
critical operations of the covered
financial company and its affiliates. In
such cases, the FDIC may need to
arrange for additional liquidity, support
or collateral to the affiliates to enable
them to meet collateral obligations and
generally perform their QFC obligations.
While there could be significant
benefits from the Proposed Rules, such
benefits are difficult to quantify, as the
Proposed Rules are only one component
of the orderly liquidation authority and
the benefits of the Proposed Rules
PO 00000
Frm 00031
Fmt 4701
Sfmt 4702
995
would only be realized upon such
authority being exercised. In addition,
implementation of the Dodd-Frank Act
will: (1) Subject large, interconnected
financial companies to stronger
supervision, and as a result, reduce the
likelihood of their failure; and (2) blunt
the impact of any such failure on U.S.
financial stability and the economy. For
example, bank holding companies with
total consolidated assets of $50 billion
or more and nonbank financial
companies supervised by the Board are
subject to supervisory and company-run
stress tests to help the Board and the
company measure the sufficiency of
capital available to support the
company’s operations throughout
periods of stress.109 These financial
companies also are or will be subject to
more stringent prudential standards,
including risk-based capital and
liquidity requirements, which will make
their failure less likely. However, if such
a financial company does fail, the
implementation of the Dodd-Frank Act
is also intended to ensure that its failure
and resolution under the Bankruptcy
Code may occur without adverse effects
on U.S. financial stability. For example,
each of these large bank holding
companies and nonbank financial
companies supervised by the Board will
have in place resolution plans/‘‘living
wills’’ to facilitate their rapid and
orderly resolution under the Bankruptcy
Code in the event of material financial
distress or failure.110 The Title II orderly
liquidation authority will only be used
to resolve a failing financial company if
its resolution under the Bankruptcy
Code would have serious adverse effects
on U.S. financial stability. In addition,
there are substantial procedural
safeguards to prevent the unwarranted
use of the Title II orderly liquidation
authority.
Nevertheless, one way to gauge the
potential benefits of the Proposed Rules
is to examine the effect of the recent
financial crisis on the real economy and
how the Title II orderly liquidation
authority as a whole will help reduce
the probability or severity of a future
financial crisis. For example, in a 2013
Government Accountability Office
(GAO) report, GAO stated that there is
some research that suggests that U.S.
output losses associated with the 2007–
2009 financial crisis could range from
several trillion dollars to over $10
trillion.111 GAO also surveyed financial
109 12
U.S.C. 5365(i); 12 CFR part 252.
U.S.C. 5365(d).
111 Government Accountability Office, Financial
Regulatory Reform: Financial Crisis Losses and
Potential Impacts of the Dodd-Frank Act, GAO–13–
180 at 15–16 (January 16, 2013).
110 12
E:\FR\FM\07JAP4.SGM
07JAP4
996
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
market regulators, academics, and
industry and public interest groups who
identified, inter alia, the more stringent
prudential standards discussed above
and the orderly liquidation authority as
not only enhancing financial stability, at
least in principle, but also helping to
reduce the probability or severity of a
future crisis.112
However, as discussed above, even if
the benefits of preventing future
financial crises are significant, it is
difficult to quantify what portion of
such benefits would be attributable to
any single provision of the Dodd-Frank
Act, let alone those benefits directly
attributable to the Proposed Rules. For
example, GAO also noted that such
benefits are not assured and will depend
on, among other things, how regulators
implement the provisions.113 In
addition, the benefits would not be
attributable solely to the Proposed
Rules, as a number of other reforms are
also intended to reduce the probability
and severity of future financial crises.
Finally, as discussed above, the benefits
associated with the Proposed Rules
would only be realized if the Title II
orderly liquidation authority is
exercised and, even if utilized, the
Proposed Rules are only one component
of the orderly liquidation authority and
the resulting benefits.
7. Retrospective Analysis
Executive Order 13563 also directs
the Secretary to develop a plan,
consistent with law and resources and
regulatory priorities, to conduct a
periodic retrospective analysis of
significant regulations to determine
whether such regulations should be
modified, streamlined, expanded, or
repealed so as to make the regulations
more effective and less burdensome.
The Secretary expects to conduct a
retrospective analysis not later than
seven years after the effective date of the
rule. This review will consider whether
the recordkeeping requirements are
necessary or appropriate to assist the
FDIC as receiver in being able to
exercise its rights under the Act and
fulfill its obligations under section
210(c)(8), (9), or (10) of the Dodd-Frank
Act, and may result in proposed
amendments to the rule. For example,
the Secretary will review whether the
data set forth in Tables A–1 through A–
4 to the Appendix are necessary or
appropriate to assist the FDIC as
receiver, and/or whether maintaining
112 Id. at 33–34. GAO added that the experts it
surveyed had differing views on these provisions
but that many expect some or all of the provisions
to improve the financial system’s resilience to
shocks.
113 Id. at 33.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
additional, less, or different data is
necessary or appropriate. The Secretary
seeks comment on the following
question: Is it appropriate for the
Secretary to conduct the ‘‘lookback
review’’ not later than seven years after
the effective date of the rule, or would
a different period be preferable?
Text of the Proposed Rules
List of Subjects in 31 CFR Part 148
Reporting and recordkeeping
requirements.
Authority and Issuance
For the reasons set forth in the
preamble, the Department of the
Treasury proposes to add part 148 to 31
CFR chapter I to read as follows:
Part 148—Qualified Financial
Contracts Recordkeeping Related to
the FDIC Orderly Liquidation Authority
Sec.
148.1 Scope, purpose, effective date, and
compliance dates.
148.2 Definitions.
148.3 Form, availability and maintenance of
records.
148.4 Content of records.
Appendix to Part 148—File Structure for
Qualified Financial Contract Records
Authority: 31 U.S.C. 321(b) and 12 U.S.C
5390(c)(8)(H).
PART 148—QUALIFIED FINANCIAL
CONTRACTS RECORDKEEPING
RELATED TO THE FDIC ORDERLY
LIQUIDATION AUTHORITY
§ 148.1 Scope, purpose, effective date, and
compliance dates.
(a) Scope. This part applies to each
financial company that qualifies under
the definition of ‘‘records entity’’ set
forth in § 148.2 of this part.
(b) Purpose. This part establishes
recordkeeping requirements with
respect to qualified financial contracts
for a records entity in order to assist the
Federal Deposit Insurance Corporation
(‘‘FDIC’’) as receiver for a covered
financial company (as defined in 12
U.S.C. 5381(a)(8)) in being able to
exercise its rights and fulfill its
obligations under 12 U.S.C. 5390(c)(8),
(9), or (10).
(c) Effective date. This part shall
become effective 60 days after
publication of the final rule in the
Federal Register.
(d) Compliance dates—(1) Initial
compliance dates. A records entity must
comply with § 148.3(a)(3) on the
effective date and with all other
requirements of this part within 270
days from first becoming subject to this
part. In the case of a financial company
PO 00000
Frm 00032
Fmt 4701
Sfmt 4702
that becomes a records entity subject to
this part after the effective date, such
records entity must comply with
§ 148.3(a)(3) within 60 days of becoming
a records entity and with all other
requirements of this part within 270
days from first becoming subject to this
part.
(2) Subsequent compliance date. If a
financial company ceases to be a records
entity subject to this part after the initial
compliance dates, and remains so for at
least one year (calculated on a rolling
12-month basis), it is no longer required
to comply with this part. However, if at
any time after the one-year period, such
financial company again becomes a
records entity subject to this part, it
must comply with all of the
requirements of this part no later than
90 days after becoming subject to this
part.
§ 148.2
Definitions.
For purposes of this part:
Affiliate means any entity that
controls, is controlled by, or is under
common control with a financial
company or counterparty.
Control. An ‘‘entity controls another
entity’’ if it:
(1) Directly or indirectly or acting
through one or more other persons
owns, controls, or has the power to vote
25 percent or more of any class of voting
securities of another entity;
(2) Controls in any manner the
election of a majority of the directors or
trustees of another entity; or
(3) Must consolidate another entity for
financial or regulatory reporting
purposes.
Corporate group means an entity and
all affiliates of that entity.
Counterparty means any natural
person or entity (or separate non-U.S.
branch of any entity) that is a party to
a QFC with a records entity, including
any affiliate or any non-U.S. branch of
such records entity if such affiliate or
branch is a party to a QFC with such
records entity, or is a party to a QFC that
is guaranteed or supported by a records
entity.
Exempt entity means:
(1) An insured depository institution
as defined in 12 U.S.C. 1813(c)(2);
(2) A subsidiary of an insured
depository institution that is not a
functionally regulated subsidiary as
defined in 12 U.S.C. 1844(c)(5), a
security-based swap dealer as defined in
15 U.S.C. 78c(a)(71) or a major securitybased swap participant as defined in 15
U.S.C. 78c(a)(67); or
(3) A financial company that is not a
party to a QFC and controls only exempt
entities as defined in paragraphs (1) and
(2) of this definition.
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
Financial company has the meaning
set forth in 12 U.S.C. 5381(a)(11).
Guarantees, supports and guaranteed
or supported mean to:
(1) Guarantee, indemnify, or
undertake to make any loan or advance;
(2) Undertake to make capital
contributions; or
(3) Be contractually obligated to
provide any other financial assistance.
Linked. A QFC is ‘‘linked’’ to a
financial company if it contains a
specified financial condition clause that
specifies such financial company. A
‘‘specified financial condition clause’’
means any provision of any QFC
(whether expressly stated in the QFC or
incorporated by reference in any other
contract, agreement or document) that
permits a contract counterparty to
terminate, accelerate, liquidate or
exercise any other remedy under any
QFC or other contract to which an
affiliate of the financial company is a
party or to obtain possession or exercise
control over any property of such
affiliate or affect any contractual rights
of such affiliate directly or indirectly
based upon or by reason of:
(1) A change in the financial
condition or the insolvency of a
financial company;
(2) The appointment of the FDIC as
receiver for the financial company or
any actions incidental thereto,
including, without limitation, the filing
of a petition seeking judicial action with
respect to the appointment of the FDIC
as receiver for the financial company or
the issuance of recommendations or
determination of systemic risk;
(3) The exercise of rights or powers by
the FDIC as receiver for the financial
company, including, without limitation,
the appointment of the Securities
Investor Protection Corporation (SIPC)
as trustee in the case of a financial
company that is a covered broker or
dealer and the exercise by SIPC of its
rights and powers as trustee;
(4) The transfer of assets or liabilities
to a bridge financial company or other
qualified transferee;
(5) Any actions taken by the FDIC as
receiver for the financial company to
effectuate the liquidation of the
financial company; or
(6) Any actions taken by or on behalf
of the bridge financial company to
operate and terminate the bridge
financial company, including the
dissolution, conversion, merger or
termination of the bridge financial
company or actions incidental or related
thereto. Without limiting the foregoing,
a specified financial condition clause
includes a ‘‘walkaway clause’’ as
defined in 12 U.S.C. 5390(c)(8)(F)(iii) or
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
any regulations promulgated
thereunder.
Position means the rights and
obligations of a party to an individual
transaction under a QFC.
Primary financial regulatory agency
means, with respect to each financial
company, each primary financial
regulatory agency as specified for such
financial company in subparagraphs
(A), (B), (C), and (E) of 12 U.S.C.
5301(12).
Qualified financial contract or ‘‘QFC’’
means any qualified financial contract
defined in 12 U.S.C. 5390(c)(8)(D),
including without limitation, any
‘‘swap’’ defined in section 1a(47) of the
Commodities Exchange Act (7 U.S.C.
1a(47)) and in any rules or regulations
issued by the Commodity Futures
Trading Commission (CFTC) pursuant
to such section; any ‘‘security-based
swap’’ defined in section 3(a) of the
Securities Exchange Act of 1934 (15
U.S.C. 78c(a)) and in any rules or
regulations issued by the Securities and
Exchange Commission (SEC) pursuant
to such section; and any securities
contract, commodity contract, forward
contract, repurchase agreement, swap
agreement, and any similar agreement
that the FDIC determines by regulation,
resolution, or order to be a qualified
financial contract as provided in 12
U.S.C. 5390(c)(8)(D).
Records entity—(1) Records entity
means a financial company that:
(i) Is not an exempt entity;
(ii) Is a party to an open QFC or
guarantees, supports or is linked to an
open QFC; and
(iii) (A) Has been determined
pursuant to 12 U.S.C. 5323 to be an
entity that could pose a threat to the
financial stability of the United States;
(B) Has been designated pursuant to
12 U.S.C. 5463 as a financial market
utility that is, or is likely to become,
systemically important;
(C) Has total assets equal to or greater
than $50 billion; or
(D) Is:
(1) A party to an open QFC or
guarantees, supports or is linked to an
open QFC of an affiliate; and
(2) A member of a corporate group in
which at least one financial company
meets the criteria under paragraphs
(1)(iii)(A), (B), or (C) of this definition.
(2) For the purpose of this definition,
‘‘total assets’’ means the total assets
reported in the most recent year-end
audited consolidated statement of
financial condition of the applicable
financial company filed with its primary
financial regulatory agency, or, for
financial companies not required to file
such statements, the total assets shown
on the consolidated balance sheet of the
PO 00000
Frm 00033
Fmt 4701
Sfmt 4702
997
financial company for the most recent
fiscal year end.
SDR means any swap data repository
or security-based swap data repository
registered with the CFTC or the SEC and
any other similar data repository
established to enable reporting of QFC
data.
Secretary means the Secretary of the
Treasury or the Secretary’s designee.
Subsidiary means any company that
is controlled by another company.
§ 148.3 Form, availability and maintenance
of records.
(a) Form and availability—(1)
Electronic records. A records entity is
required to maintain all records
described in section 148.4 in electronic
form and be able to generate data in the
format set forth in Tables A–1 through
A–4 of the appendix to this part. Such
records shall be capable of being
transmitted electronically to the records
entity’s primary financial regulatory
agencies and the FDIC. All affiliated
records entities in a corporate group
must be able to generate data in the
format set forth in Tables A–1 through
A–4 of the appendix to this part in the
same data format and use the same
unique counterparty identifiers to
enable the aggregation of data both:
(i) For all affiliated records entities in
the corporate group; and
(ii) By counterparty, for all records
entities in a corporate group.
(2) Position records. A records entity
must maintain records for all QFCs to
which it is a party, including interaffiliate QFCs to which it is a party. A
records entity must also maintain
records for all QFCs that are guaranteed
or supported by such records entity.
(3) Point of contact. A records entity
must provide to each of its primary
financial regulatory agencies and the
FDIC a point of contact at the records
entity who is responsible for
recordkeeping under this part, by
written notice to its primary financial
regulatory agencies and the FDIC on the
effective date of this part and, thereafter,
within 30 days of any change in the
point-of-contact information.
(4) Access to records. A records entity
that is regulated by a primary financial
regulatory agency shall be capable of
providing to such primary financial
regulatory agency, within 24 hours of
request, the records specified in § 148.4.
(b) Maintenance and updating—(1)
Daily updating. A records entity shall
maintain the capacity to generate the
data in the format set forth in Tables A–
1 through A–4 of the appendix to this
part, based on the previous end-of-day
records and values. Data that are more
current than previous end-of-day
E:\FR\FM\07JAP4.SGM
07JAP4
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
998
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
records and values are deemed to satisfy
this requirement.
(2) Records maintenance. The records
required under this part may be
maintained on behalf of the records
entity by any affiliate of such records
entity, or any third-party service
provider that maintains the records in
the ordinary course of business.
(3) Record retention. Unless otherwise
indicated in this part, the requirement
on a records entity to maintain records
applies to records and values with
respect to open QFC positions and any
other QFC positions needed to generate
reports based on end-of-day records and
values for at least the five business days
prior to the date of a request.
(c) Exemptions—(1) General
exemptions. Upon receipt of a written
recommendation from the FDIC,
prepared in consultation with the
primary financial regulatory agencies for
the applicable records entities that takes
into consideration each of the factors
referenced in 12 U.S.C.
5390(c)(8)(H)(iv), the Secretary may
grant conditional or unconditional
exemptions from compliance with one
or more of the requirements of this part
by issuing an exemption to one or more
types of records entities. In determining
whether to grant a general exemption,
the Secretary will consider any factors
deemed necessary or appropriate by the
Secretary, including whether
application of one or more requirements
of this part is not necessary to achieve
the purpose of this part.
(2) Specific exemptions. Upon written
request by a records entity, the FDIC
may recommend, after taking into
consideration each of the factors
referenced in 12 U.S.C.
5390(c)(8)(H)(iv), that the Secretary
grant a conditional or unconditional
specific exemption from compliance
with one or more of the requirements of
this part. Upon receipt of a written
recommendation from the FDIC,
prepared in consultation with the
primary financial regulatory agencies for
the records entity, the Secretary may
grant a conditional or unconditional
specific exemption from compliance
with one or more requirements of this
part by issuing an exemption to such
records entity. In determining whether
to grant a specific exemption, the
Secretary will consider any factors
deemed necessary or appropriate,
including whether application of one or
more requirements of this part is not
necessary to achieve the purpose of this
part.
(3) Extensions of time. The Secretary,
in consultation with the FDIC, may
grant one or more extensions of time for
compliance with this part. A records
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
entity may request an extension of time
by submitting a written request to the
Department of the Treasury, at least 30
days prior to the deadline for its
compliance with the requirements of
this part. The written request for an
extension must contain:
(i) A statement of the reasons why the
records entity cannot comply by the
deadline for compliance; and
(ii) A plan for achieving compliance
during the requested extension period.
§ 148.4
Content of records.
(a) All records entities. Subject to
§ 148.3(c), a records entity must
maintain all records required under this
part, including:
(1) The position-level data listed in
Table A–1 in the appendix of this part.
(2) The counterparty collateral data
listed in Table A–2 in the appendix of
this part.
(3) The legal agreements information
listed in Table A–3 in the appendix of
this part.
(4) The collateral detail data listed in
Table A–4 in the appendix of this part.
(5) Any written data or information
that is not listed in Tables A–1 through
A–4 in the appendix to this part that the
records entity is required to provide to
an SDR, the CFTC, the SEC or any nonU.S. regulator with respect to any QFC,
for any period that such data or
information is required to be maintained
by its primary financial regulatory
agency.
(6)(i) For each counterparty that is not
an affiliate of the records entity, a list
specifying all other counterparties that
are members of the same corporate
group as the counterparty and that are
parties to open QFCs with the records
entity or guarantee, support or are
linked to such QFCs, as well as an
organizational chart that explains the
affiliate relationships of such
counterparties. Such list shall include
the unique counterparty identifier for
each counterparty in the counterparty’s
corporate group. The unique
counterparty identifier shall be based on
the global legal entity identifier issued
by:
(A) Utilities endorsed by the
Regulatory Oversight Committee, whose
charter was set forth by the Finance
Ministers and Central Bank Governors
of the Group of Twenty and the
Financial Stability Board; or
(B) Utilities endorsed or otherwise
governed by the Global LEI Foundation,
but must include additional identifiers
in the event one counterparty transacts
with the records entity as separate nonU.S. branches or divisions, as
appropriate to enable the FDIC to
aggregate or disaggregate the data for
PO 00000
Frm 00034
Fmt 4701
Sfmt 4702
each counterparty and for the
counterparty’s corporate group as
necessary to determine the effects of
potential QFC transfers or terminations,
including the effects of any ring-fencing
with regard to any such non-U.S. branch
or division.
(ii) All records entities in a corporate
group must use the same unique
counterparty identifier for each
counterparty.
(7) A list of all affiliates of the records
entity that are parties to open QFCs or
guarantee, support or are linked to open
QFCs, as well as an organizational chart
that explains the affiliate relationships
for such records entities. Such list shall
specify which affiliates are
counterparties to inter-affiliate QFCs
with such records entity for which the
records entity is required to maintain
records pursuant to this part. Such list
shall include the unique counterparty
identifier for each affiliated
counterparty in the records entity’s
corporate group as set forth in paragraph
(a)(6) of this section.
(8) Full-text searchable copies of all
agreements that govern QFC
transactions between the records entity
and each counterparty, including
without limitation, master agreements
and annexes, supplements, or other
modifications with respect to the
agreements.
(9) Copies of the active or ‘‘open’’
confirmations, if the position has been
confirmed or the trade acknowledgment
if the position has not been confirmed.
(10) Full-text searchable copies of all
credit support documents including, but
not limited to, any credit support
annexes, any guarantees, keep-well
agreements, or net worth maintenance
agreements that are relevant to one or
more QFCs.
(11) Full-text searchable copies of all
assignment or novation documents, if
applicable, including documents which
confirm that all required consents,
approvals, or other conditions precedent
for such assignment or novation have
been obtained or satisfied.
(12) A list of vendors directly
supporting the QFC-related activities of
the records entity and the vendors’
contact information.
(13) Risk metrics used to monitor the
QFC portfolio, including without
limitation, credit risk, market risk and
liquidity risk measures.
(14) Risk manager contact information
for each portfolio that includes QFCs.
Appendix to Part 148—File Structure
for Qualified Financial Contract
Records
In maintaining the records required under
this part, a records entity may leave an entry
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
blank or insert N/A for the data fields that
999
do not apply to a given QFC transaction or
agreement.
TABLE A–1—POSITION-LEVEL DATA
[For a records entity]
Field
Example
Data application
Unique position identifier ....................................
20058953 .........................................................
Unique counterparty identifier 1 of records entity
999999999 .......................................................
Unique counterparty identifier of counterparty to
records entity (non-reporting party).
Legal name of counterparty (non-reporting
party).
Industry code (GIC or SIC code) of
counterparty to records entity (non-reporting
party).
Internal booking location identifier (for headquarters or branch where the position is
booked).
888888888 .......................................................
Information needed to readily track and distinguish positions.
Information needed to review position-level
data by records entity.
Information needed to identify and, if necessary, communicate with counterparty.
Information needed to identify and, if necessary, communicate with counterparty.
Information needed to analyze knock-on effects by industry.
Unique booking unit or desk identifier ................
xxxxxx ..............................................................
Unique booking unit or desk description ............
North American Trading Desk .........................
Contact information of person responsible for
position, including name, phone number and
e-mail address.
Unique master agreement or governing documentation identifier.
Form of master agreement or governing documentation.
John
Smith
main.com.
Unique master netting agreement identifier .......
xxxxxxxxx .........................................................
Name of master netting agreement ...................
[Agreement name] ...........................................
Position standardized asset class (or QFC
asset class of the reference asset or interest
rate).
Credit; equity; foreign exchange; interest rate
(including cross-currency); other commodity; securities repurchase agreement;
securities lending; loan repurchase agreement.
Mortgage loan repurchase agreement ............
Position standardized contract type (or QFC
contract type of the reference asset or interest rate) 2.
Purpose of the position (if the purpose consists
of hedging strategies, include the general
category of the item(s) hedged).
John Doe & Co. ...............................................
2096 .................................................................
XY12Z ..............................................................
x-xxx-xxx-xxxx
jsmith@do-
xxxxxx ..............................................................
ISDA 1992 ........................................................
Trading or hedging (e.g., hedging mortgage
servicing or hedging a mortgage pipeline).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Issue date ...........................................................
6/31/2010 .........................................................
Termination date (date the position terminates
or is expected to terminate, expire, mature,
or when final performance is required).
Next call, put, or cancellation date .....................
3/31/2014 Overnight Open ..............................
9/30/2014 .........................................................
Next payment date .............................................
9/30/2014 .........................................................
Local currency of position (e.g. USD, GBP,
EUR, JPY).
Current market value of the position in local
currency (as of the date of the file).
USD ..................................................................
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
995,000 ............................................................
PO 00000
Frm 00035
Fmt 4701
Sfmt 4702
Information needed to determine the headquarters or branch where the position is
booked, including the system on which the
trade is booked, as well as the system on
which the trade is settled.
Additional information to help determine purpose of position.
Additional information to help determine purpose of position.
Information needed to maintain a point of contact with the records entity.
Information needed to identify master agreement or governing documentation.
Information needed to determine whether a
standard form agreement governs the
transaction.
Information needed to identify, and determine
effects of, any cross-product and other
master netting agreements (sometimes
called ‘‘master master agreements’’).
Information needed to identify, and determine
effects of, any cross-product and other
master netting agreements.
Information needed to determine the extent to
which the entity is involved in any particular
QFC market.
Information needed to determine the extent to
which the entity is involved in any particular
QFC market.
Information needed to determine the role of
the QFC in the records entity and the corporate group’s business strategy. For example, if the purpose of a QFC is to hedge
a non-QFC arrangement, the FDIC has the
potential for a broken-hedge because the
non-QFC arrangement is not subject to the
‘‘all or none’’ QFC transfer and repudiation
rule.
Information needed to determine the date the
entity entered into the agreement.
Information needed to determine when the
entity’s rights and obligations regarding the
position are expected to end.
Information needed to determine when a call,
put, or cancellation may occur with respect
to a position.
Information needed to anticipate potential upcoming obligations.
Information needed to determine currency.
Information needed to determine the current
size of the obligation/benefit in association
with the QFC.
E:\FR\FM\07JAP4.SGM
07JAP4
1000
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
TABLE A–1—POSITION-LEVEL DATA—Continued
[For a records entity]
Field
Example
Data application
Current market value of the position in USD
equivalent (as of the date of the file).
995,000 ............................................................
Notional or principal amount of the position in
local currency (as applicable).
Notional or principal amount of the position in
USD equivalent (as applicable).
Documentation status of the position .................
1,000,000 .........................................................
Information needed to determine the current
size of the obligation/benefit in association
with the QFC.
Information needed to help evaluate the position.
Information needed to help evaluate the position.
Information needed to determine reliability of
the position and its legal status.
Information needed to identify and review
credit support related to the position, including any applicable covenants.
Information needed to identify entity with potential credit exposure.
Information needed to identify the guarantor’s
exposure to swaps of affiliates.
Information needed to be able to connect data
on Table A–1 with Table A–2.
Information needed to identify counterparty to
inter-affiliate position that is back-to-back
with, or otherwise related to, this position.
Credit support documents (including any security agreement or guarantee) (If more than
one, delimit each with a comma.).
Name of position or agreement guarantor, if applicable.
Unique counterparty identifier of guarantor ........
1,000,000 .........................................................
Affirmed, confirmed, or neither affirmed nor
confirmed.
Credit Support Annex ......................................
Holdco ..............................................................
888888888 .......................................................
Reference number of guarantee agreement ......
xxxxxx ..............................................................
Unique counterparty identifier of counterparty to
related inter-affiliate position(s) with other
records entity in the corporate group (If more
than one, delimit each with a comma.).
Name of counterparty to related inter-affiliate
position(s) (If more than one, delimit each
with a comma.).
Related inter-affiliate position ID(s) ....................
777777777 .......................................................
Jane Doe & Co. ...............................................
Unique position ID(s) for related inter-affiliate
position (If more than one, delimit each with
a comma.).
Reference number for any related loan (If more
than one, delimit each with a comma.).
Unique reference number(s) for loans related
to this position.
Legal name of records entity or any affiliate of
the records entity that is lender of related
loan (If more than one, delimit each with a
comma.).
Classification under GAAP or IFRS ...................
[Insert legal name of each records entity that
is lender of related loan].
Level 1, Level 2, Level 3 .................................
Information needed to identify counterparty to
inter-affiliate position that is back-to-back
with, or otherwise related to, this position.
Information needed to identify all related positions, i.e., each position with an affiliated
records entity that is back-to-back with, or
otherwise relates to, this position.
Information necessary to identify any loan(s)
within the corporate group that are related
to this position.
Information needed to identify lender.
Information with respect to carrying value for
the position.
1 The unique counterparty identifier shall be based on the global legal entity identifier, but must include additional identifiers in the event one
counterparty transacts with the records entity as separate non-U.S. branches or divisions, as appropriate to enable the FDIC to aggregate or
disaggregate the data for each counterparty and for the counterparty’s corporate group as necessary to determine the effects of potential QFC
transfers or terminations, including the effects of any ring-fencing with regard to any such non-U.S. branch or division. All records entities in an
affiliated group must use the same unique counterparty identifier for a specific counterparty.
2 Position ‘‘types’’ shall be used consistently for all records entities within the corporate group. If the OFR adopts or authorizes a unique product identifier for a given type of position/transaction, then within 180 days after such action, the records entity shall substitute such identifier for
‘‘Type of Position,’’ and shall utilize such identifier for purposes of this part for all records entities within its corporate group.
TABLE A–2—COUNTERPARTY COLLATERAL DATA 1
[For positions between a records entity and each counterparty 2]
Example
Data application
Unique counterparty identifier 3 of records entity
999999999 .......................................................
Unique counterparty identifier of counterparty to
records entity (non-reporting party).
Legal name of counterparty ...............................
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Field
888888888 .......................................................
Information needed to review counterpartlevel data by records entity.
Information needed to aggregate positions by
counterparty.
Information needed to aggregate positions by
counterparty.
Information needed to analyze knock-on effects by industry
Information needed to maintain a point of contact with the counterparty for the portfolio.
Information needed to determine how positions of a records entity can be transferred.
Information needed to identify the agreement.
Industry code (GIC or SIC code) of
counterparty.
Contact information for counterparty, including
name, phone number, and email address.
Master Netting Agreement for counterparty’s
corporate group (Y/N).
Name of each master agreement, master netting agreement or governing documentation
related to netting among affiliates in a
counterparty’s corporate group 4 (if more than
one, list each).
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
John Doe & Co. ...............................................
2096 .................................................................
xxxxxxxx ...........................................................
Yes ...................................................................
ISDA Master Agreement ..................................
PO 00000
Frm 00036
Fmt 4701
Sfmt 4702
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
1001
TABLE A–2—COUNTERPARTY COLLATERAL DATA 1—Continued
[For positions between a records entity and each counterparty 2]
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Field
Example
Data application
Unique master agreement, master netting
agreement or governing documentation identifier for agreements related to netting among
affiliates in a counterparty’s corporate group
(if more than one, list each).
Current market value in USD equivalent of all
positions, as aggregated and, to the extent
permitted under each applicable agreement,
netted.
Current market value in USD equivalent of all
collateral, if any, posted against all positions
of the records entity with the counterparty by
collateral provider.
Current market value in USD equivalent of all
collateral posted against all positions of the
records entity with the counterparty that is
subject
to
re-hypothecation
by
the
counterparty, if any, by collateral provider.
Current market value in USD equivalent of all
collateral, if any, posted against all
counterparty positions with the records entity
by collateral provider.
Current market value in USD equivalent of all
collateral posted against all positions of the
counterparty with the records entity that is
subject to re-hypothecation by the records
entity, if any, by collateral provider.
With respect to all collateral posted against the
record entity’s positions, collateral excess or
deficiency (including pending margin calls in
this calculation) in USD equivalent with respect to all of the records entity’s positions,
as determined under each applicable agreement, including thresholds and haircuts
where applicable.5
With respect to all collateral posted against
each counterparty’s positions collateral excess or deficiency (including pending margin
calls in this calculation) in USD equivalent
with respect to all of such counterparty’s positions with the records entity, as determined
under each applicable agreement, including
thresholds and haircuts where applicable.
With respect to all collateral posted against the
records entity’s positions, collateral excess or
deficiency (including pending margin calls in
this calculation) in USD equivalent with respect to all the positions, based on the aggregate market value of the positions of a
counterparty (after netting to the extent permitted under each applicable agreement) and
the aggregate market value of all collateral
posted against the records entity’s positions,
in whole or in part.
Collateral safekeeping agent contact information, including name, email address, phone
number.
For each records entity, current market value of
all inter-affiliate positions with this records entity (multiple entries depending on number of
entities and complexity of inter-company
transactions).
Risk or relationship manager contact information, including name, phone number and
email address.
Master Netting Agreement for records entity’s
corporate group (Y/N).
xxxxxx ..............................................................
Internal reference number of the master
agreement or governing documentation.
(1,000,000) .......................................................
Information needed to help evaluate the positions.
950,000 ............................................................
Information needed to determine the extent to
which collateral has been provided.
950,000 ............................................................
Information needed to determine exposure of
a records entity or other collateral provider(s) to the creditworthiness of a
counterparty
50,000 ..............................................................
Information needed to determine the extent to
which collateral has been provided on behalf of a counterparty.
50,000 ..............................................................
Information needed to determine uncollateralized liability of records entity to a
counterparty or other collateral provider(s)
for re-hypothecated collateral
(25,000) ............................................................
Information needed to determine the extent to
which the records entity has satisfied collateral requirements under each applicable
agreement.
150,000 ............................................................
Information needed to determine the extent to
which the counterparty has satisfied collateral requirements under each applicable
agreement.
(50,000) ............................................................
Information needed to determine the extent to
which the record entity’s obligations regarding the positions may be unsecured.
xxxxxxxx ...........................................................
Information needed to maintain a point of contact with the collateral safekeeping agent.
Records entity 1, Records entity 2,
Counterparty xxx, aggregate current market
value.
Information needed to assess both cross border positions as well as transfer links.
xxxxxxxx ...........................................................
Information needed to maintain a point of contact for the counterparty relationship.
Yes ...................................................................
Information needed to determine how positions are netted among records entities.
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
PO 00000
Frm 00037
Fmt 4701
Sfmt 4702
E:\FR\FM\07JAP4.SGM
07JAP4
1002
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
TABLE A–2—COUNTERPARTY COLLATERAL DATA 1—Continued
[For positions between a records entity and each counterparty 2]
Field
Example
Data application
Name of each master agreement, master netting agreement or governing documentation
related to netting among records entities (if
more than one, list each).
Unique master agreement, master netting
agreement or governing documentation identifier for agreements related to netting among
records entities (if more than one, list each).
Legal name of master agreement guarantor, if
any.
Unique counterparty identifier of guarantor ........
ISDA Master Agreement ..................................
Information needed to identify the agreement.
xxxxxx ..............................................................
Internal reference number of the master
agreement or governing documentation.
xxxxxx ..............................................................
Information needed to determine credit exposure of the guarantor.
Information needed to determine credit exposure of the guarantor.
xxxxxx ..............................................................
1 All amounts shall be provided in U.S. Dollar equivalent. For collateral denominated in non-U.S. currency, the value in such non-U.S. currency
shall also be provided.
2 Table A–2 shall be provided at the first level of netting under a master agreement. If a master agreement includes Annexes or other provisions that are subject to intermediate netting, each netting set shall be reported separately. The table shall have a separate entry for each netting agreement that is applicable to one or more counterparties in the counterparty corporate group. The FDIC intends to use the data both to
determine net positions between each counterparty and a records entity and to determine the records entity’s aggregated position with respect to
all affiliates in a counterparty’s corporate group based on the enforceability of the netting agreements.
3 The unique counterparty identifier shall be based on the global legal entity identifier, but must include additional identifiers in the event one
counterparty transacts with the records entity as separate non-U.S. branches or divisions, as appropriate to enable the FDIC to aggregate or
disaggregate the data for each counterparty and for the counterparty’s corporate group as necessary to determine the effects of potential QFC
transfers or terminations, including the effects of any ring-fencing with regard to any such non-U.S. branch or division. All records entities in an
affiliated group must use the same unique counterparty identifier for a specific counterparty.
4 If one or more positions cannot be netted against others, they shall be maintained as separate entries and each such entry shall identify the
applicable netting agreement, if any, to which it relates (if none, specify ‘‘none’’).
5 If all positions are not secured by the same collateral, then separate entries shall be maintained for each position or set of positions secured
by the same collateral and each such entry shall identify the applicable credit support document, if any, to which it relates (if none, specify
‘‘none’’).
TABLE A–3—LEGAL AGREEMENTS
[For each QFC agreement or master agreement between a records entity and each counterparty]
Example
Data application
Name of agreement ...........................................
Reference Number .............................................
ISDA Master Agreement ..................................
xxxxxx ..............................................................
Basic form of agreement ....................................
[1992/2002] version .........................................
Agreement governing law ..................................
[State/Country] .................................................
Cross defaults (Y/N and description of type of
cross default and identity of cross-default entity).
Transfer restrictions (Y/N and description of
transfer restriction).
Events of Default/Termination Events added to
the basic form of agreement (Y/N and brief
description or excerpts of each).
Y .......................................................................
Insolvency.
[parent].
Y .......................................................................
Counterparty consent required.
Y .......................................................................
Counterparty stock price declines by more
than $xx.
Information needed to identify the agreement.
Internal reference number of the master
agreement or governing documentation.
Information needed to identify the basic form
of agreement.
Information needed to determine the law governing contract disputes.
Information needed to determine exposure to
affiliates or other entities.
Events of Default/Termination Events deleted
from the basic form of agreement (Y/N and
excerpts of each).
Y .......................................................................
Credit event upon merger.
Guarantee agreement with respect to records
entity obligations (Y/N).
Reference number of guarantee agreement ......
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Field
Y .......................................................................
Legal name of guarantor of records entity obligations, if any.
Unique counterparty identifier of guarantor of
records entity obligations.
Unique counterparty identifier of counterparty to
records entity (non-reporting party).
Legal name of Counterparty ..............................
xxxxxxx .............................................................
Information needed to determine QFC transfer
limitations per agreement terms.
Information needed to determine whether
there are events of default or termination
events that have been added to those provided in the basic form of agreement and
the likelihood of occurrence of event of default.
Information needed to determine if there are
any events of default or termination events
of the basic form of agreement that have
been removed.
Information needed to determine if there is
credit exposure because of a guaranty.
Internal reference number to enable aggregation of exposures to a guarantor.
Information needed to identify the guarantor.
xxxxxxx .............................................................
Information needed to identify the guarantor.
888888888 .......................................................
Information needed to aggregate information
by counterparty.
Information needed to aggregate information
by counterparty.
Information needed to analyze knock-on effects by industry.
Industry code
counterparty.
VerDate Sep<11>2014
(GIC
or
18:33 Jan 06, 2015
SIC
code)
Jkt 235001
of
xxxxxxx .............................................................
John Doe & Co. ...............................................
2096 .................................................................
PO 00000
Frm 00038
Fmt 4701
Sfmt 4702
E:\FR\FM\07JAP4.SGM
07JAP4
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
1003
TABLE A–3—LEGAL AGREEMENTS—Continued
[For each QFC agreement or master agreement between a records entity and each counterparty]
Field
Example
Data application
Contact information for counterparty, including
name, phone number, and email address.
Guarantee
agreement
with
respect
to
counterparty obligation (Y/N).
..........................................................................
Information needed to maintain a point of contact with the counterparty for the portfolio.
Information needed to determine if there is
guarantor exposure with respect to the
counterparty.
Internal reference number to enable aggregation of guarantor exposure.
Information needed to determine credit exposure of guarantor for counterparty obligations.
Information needed to determine credit exposure of guarantor for counterparty obligations.
Y .......................................................................
Reference number of counterparty guarantee
agreement.
Legal name of guarantor of counterparty obligations, if any.
xxxxxxx .............................................................
Unique counterparty identifier of counterparty
guarantor.
xxxxxxx .............................................................
xxxxxxx .............................................................
TABLE A–4—COLLATERAL DETAIL DATA
[For a records entity with respect to each counterparty, and for each counterparty with respect to a records entity and aggregated for such record
entity’s corporate group as well as such counterparty corporate group to the extent required or permitted by any applicable netting agreements]
Example
Data application
Unique collateral identifier for a collateral item ..
CUSIPs ............................................................
Local currency of collateral item (e.g. USD,
GBP, EUR, JPY).
Original face amount of collateral item in local
currency.
Original face amount of collateral item in USD
equivalent.
USD ..................................................................
Current end of day market value amount of collateral item in local currency.
Current end of day market value amount of collateral item in USD equivalent.
850,000 ............................................................
Description of collateral item or items ................
U.S. Treasury Strip, maturity 6/30/2020 ..........
Collateral currency .............................................
USD ..................................................................
Collateral Code,1 if any, of the collateral that
the records entity has posted against all positions with the counterparty.
Unique entity identifier of collateral posting entity.
xxxxx ................................................................
Reference required to identify individual collateral posted.
Information needed to determine the type of
collateral
Information needed to evaluate collateral sufficiency and marketability.
Information needed to evaluate collateral sufficiency and marketability and to assist in aggregation across currencies.
Information needed to evaluate collateral sufficiency and marketability.
Information needed to evaluate collateral sufficiency and marketability and to assist in aggregation across currencies.
Information needed to evaluate collateral sufficiency and marketability.
Information needed to determine the type of
collateral
Information needed to identify and aggregate
collateral.
Name of master agreement or governing documentation.
Unique master agreement or governing documentation identifier.
Collateral or portfolio segregation status (Y/N/
and the scope of such segregation).
ISDA Master Agreement ..................................
Credit support documents (including any security agreement) (If applicable, unique credit
support document identifier.).
Unique counterparty identifier ............................
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Field
Credit Support Annex ......................................
NA.
Legal name of counterparty ...............................
Collateral location ...............................................
1,500,000 .........................................................
1,500,000 .........................................................
850,000 ............................................................
999999999 .......................................................
xxxxxx ..............................................................
Y, segregated with third party custodian specified below.
888888888 .......................................................
Collateral jurisdiction ..........................................
John Doe & Co. ...............................................
ABC Broker-Dealer (in safekeeping account of
counterparty).
New York, NY ..................................................
Is
the
Yes ...................................................................
Master (cross-product) netting agreement name
NA ....................................................................
collateral
re-hypothecation
counterparty allowed (Y/N).
VerDate Sep<11>2014
18:33 Jan 06, 2015
by
Jkt 235001
PO 00000
Frm 00039
Fmt 4701
Sfmt 4702
Information needed to determine the headquarters or branch where the position is
booked.
Information needed to identify the agreement.
Internal reference number of the master
agreement or governing documentation.
Information needed to evaluate the extent of
segregation of the specific item of collateral
or the related collateral portfolio.
Information needed to identify and review
credit support, including any applicable covenants.
Information needed to aggregate positions by
counterparty.
Information needed to identify counterparty.
Information needed to identify location of collateral posted.
Information needed to identify jurisdiction of
location of collateral posted.
Information needed to evaluate exposure of
the records entity to the counterparty for rehypothecated collateral.
Information needed to determine effects of
any cross-product and other master netting
agreements (sometimes referred to as
‘‘master master agreements’’).
E:\FR\FM\07JAP4.SGM
07JAP4
1004
Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / Proposed Rules
TABLE A–4—COLLATERAL DETAIL DATA—Continued
[For a records entity with respect to each counterparty, and for each counterparty with respect to a records entity and aggregated for such record
entity’s corporate group as well as such counterparty corporate group to the extent required or permitted by any applicable netting agreements]
Field
Example
Data application
Master (cross-product) netting agreement
unique identifier (If applicable, unique master
netting agreement identifier. If not applicable,
enter ‘‘N/A’’).
Classification under GAAP (FAS 157) ...............
NA ....................................................................
Information needed to determine effects of
any cross-product and other master netting
agreements.
Level 1, Level 2, Level 3 .................................
Information with respect to carrying value for
the position.
1 CFTC collateral codes and collateral ‘‘types’’ shall be used consistently for collateral posted by a records entity or counterparty, as applicable.
If the OFR adopts or authorizes a unique identifier for a given type of collateral, then within 180 days after such action, the records entity shall
instead use such identifier as the code for such collateral for purposes of this part and shall utilize such identifier for purposes of this part for all
records entities within its corporate group. For repurchase or securities lending agreements, separate collateral tables should be provided that list
the type, CUSIP or ISEN number of such securities.
Matthew Rutherford,
Acting Under Secretary for Domestic Finance.
[FR Doc. 2014–30734 Filed 1–6–15; 8:45 am]
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
BILLING CODE 4810–35–P
VerDate Sep<11>2014
18:33 Jan 06, 2015
Jkt 235001
PO 00000
Frm 00040
Fmt 4701
Sfmt 9990
E:\FR\FM\07JAP4.SGM
07JAP4
Agencies
[Federal Register Volume 80, Number 4 (Wednesday, January 7, 2015)]
[Proposed Rules]
[Pages 965-1004]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30734]
[[Page 965]]
Vol. 80
Wednesday,
No. 4
January 7, 2015
Part IV
Department of the Treasury
-----------------------------------------------------------------------
31 CFR Part 148
Qualified Financial Contracts Recordkeeping Related to Orderly
Liquidation Authority; Proposed Rule
Federal Register / Vol. 80 , No. 4 / Wednesday, January 7, 2015 /
Proposed Rules
[[Page 966]]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
31 CFR Part 148
RIN 1505-AC36
Qualified Financial Contracts Recordkeeping Related to Orderly
Liquidation Authority
AGENCY: The Secretary of the Department of the Treasury, as Chairperson
of the Financial Stability Oversight Council.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Secretary of the Treasury (the ``Secretary''), as
Chairperson of the Financial Stability Oversight Council, is proposing
rules (the ``Proposed Rules'') to implement the qualified financial
contract (``QFC'') recordkeeping requirements of the Dodd-Frank Wall
Street Reform and Consumer Protection Act (``Act'' or the ``Dodd-Frank
Act''). The Act provides that if the federal primary financial
regulatory agencies do not prescribe joint final or interim final
regulations requiring financial companies to maintain records with
respect to QFCs to assist the Federal Deposit Insurance Corporation
(``FDIC'') as receiver for a covered financial company to exercise its
rights and fulfill its obligations under the Act within 24 months of
the enactment of the Act, the Chairperson of the Financial Stability
Oversight Council (the ``Council'') shall prescribe, in consultation
with the FDIC, such regulations. The Secretary, as Chairperson of the
Council, is proposing the Proposed Rules in consultation with the FDIC
because the federal primary financial regulatory agencies did not so
prescribe joint final or interim final regulations. The Proposed Rules
would require recordkeeping with respect to positions, counterparties,
legal documentation and collateral. This information is necessary to
assist the FDIC as receiver to: Fulfill its obligations under the Dodd-
Frank Act in deciding whether to transfer QFCs; assess the consequences
of decisions to transfer, disaffirm or repudiate, or allow the
termination of, QFCs with one or more counterparties; determine if any
financial systemic risks are posed by the transfer, disaffirmance or
repudiation, or termination of such QFCs; and otherwise exercise its
rights under the Act. The Secretary is requesting comment on all
aspects of the Proposed Rules.
DATES: Written comments must be received by April 7, 2015.
ADDRESSES: Submit comments electronically through the Federal
eRulemaking Portal: https://www.regulations.gov, or by mail (if hard
copy, preferably an original and two copies) to: The Treasury
Department, Attn: Qualified Financial Contracts Recordkeeping Comments,
1500 Pennsylvania Avenue NW., Washington, DC 20220. Because paper mail
in the Washington, DC area may be subject to delay, it is recommended
that comments be submitted electronically. Please include your name,
affiliation, address, email address, and telephone number in your
comment. Comments will be available for public inspection on
www.regulations.gov. In general, comments received, including
attachments and other supporting materials, are part of the public
record and are available to the public. Do not submit any information
in your comment or supporting materials that you consider confidential
or inappropriate for public disclosure.
FOR FURTHER INFORMATION CONTACT: Monique Rollins, Acting Deputy
Assistant Secretary for Capital Markets; Patricia Kao, Director, Office
of Financial Institutions Policy: (202) 622-4948.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Executive Summary
B. Publication of the Notice of Proposed Rulemaking
II. Background--QFCs and Receivership
III. The Proposed Rules
A. Scope, Purpose, Effective Date and Compliance Dates
1. Scope
a. Key Definitions
b. Records Entities Within a U.S. Holding Company
c. Clearing Organizations
d. Scope of Proposed Rules
2. Purpose
3. Effective Date and Compliance Dates
B. General Definitions
C. Form, Availability, and Maintenance of Records
1. Form and Availability
2. Maintenance and Updating
3. Exemptions
D. Content of Records
1. General Information
2. Appendix Information
IV. Administrative Law Matters
A. Initial Regulatory Flexibility Analysis
1. Statement of the Need for, Objectives of, and Legal Basis for
the Proposed Rules
2. Small Entities Affected by the Proposed Rules
3. Projected Recordkeeping and Other Compliance Requirements
4. Identification of Duplication, Overlapping, or Conflicting
Federal Rules
5. Significant Alternatives to the Proposed Rules
B. Paperwork Reduction Act
C. Executive Orders 12866 and 13563
1. Description of the Need for the Regulatory Action
2. Literature Review
a. Fire Sales Among Financial Institutions
b. Costs of Lehman Brothers Bankruptcy
c. Conclusion
3. Baseline
4. Evaluation of Alternatives
a. Scope of the Proposed Rules
b. Content of Records
c. Standardized Recordkeeping
5. Affected Population
6. Assessment of Potential Costs and Benefits
a. Potential Costs
b. Potential Benefits
7. Retrospective Analysis
I. Introduction
A. Executive Summary
The Dodd-Frank Act was enacted on July 21, 2010.\1\ As part of a
new and comprehensive regulatory framework, Title II of the Dodd-Frank
Act (``Title II'') generally establishes a mechanism for the orderly
resolution of a financial company whose failure and resolution under
otherwise applicable federal or state law would have serious adverse
effects on financial stability in the United States. A ``financial
company'' under Title II is a company that is incorporated or organized
under any provision of federal law or the laws of any State (as defined
in 12 U.S.C. 5301(16)) that is:
---------------------------------------------------------------------------
\1\ Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------
A bank holding company;
A nonbank financial company supervised by the Board of
Governors of the Federal Reserve System (``Board'');
Any company that is predominantly engaged in activities
that the Board has determined are financial in nature or incidental
thereto for purposes of section 4(k) of the Bank Holding Company Act of
1956 (``BHC Act''); \2\ or
---------------------------------------------------------------------------
\2\ The FDIC has published a final rule that identifies the
activities listed in section 4(k) of the BHC Act and the Board's
Regulation Y (12 CFR part 225) that would be considered financial in
nature or incidental thereto for purposes of Title II. See 78 FR
34712 (June 10, 2013).
---------------------------------------------------------------------------
Any subsidiary of such financial company that is itself
predominantly engaged in activities that the Board has determined are
financial in nature or incidental thereto for purposes of section 4(k)
of the BHC Act, other than an insured depository institution or an
insurance company.\3\
---------------------------------------------------------------------------
\3\ Dodd-Frank Section 201(a)(11), 12 U.S.C. 5381(a)(11). The
definition excludes Farm Credit System institutions chartered under
and subject to the provisions of the Farm Credit Act; governmental
entities; and regulated entities, as defined under section 1303(20)
of the Federal Housing Enterprises Financial Safety and Soundness
Act of 1992.
---------------------------------------------------------------------------
The Title II orderly liquidation mechanism is modeled in part on
[[Page 967]]
provisions of the Federal Deposit Insurance Act (``FDIA'') \4\
regarding insolvencies of insured depository institutions. Under Title
II, the FDIC has been given similar responsibilities as under the FDIA,
including receivership authority over financial companies in default or
in danger of default for which a determination has been made by the
Secretary (in consultation with the President) to seek the appointment
of the FDIC as receiver pursuant to section 203(b) of the Dodd-Frank
Act.
---------------------------------------------------------------------------
\4\ 12 U.S.C. 1811 et seq.
---------------------------------------------------------------------------
Title II includes provisions, set forth at section 210(c)(8),
concerning the QFCs held by covered financial companies. A ``QFC'' is a
securities contract, commodities contract, forward contract, repurchase
agreement, swap agreement, or any similar agreement that the FDIC
determines by regulation, resolution, or order to be a qualified
financial contract; \5\ and a ``covered financial company'' is a
financial company, other than an insured depository institution, for
which the Secretary has made a determination to seek the appointment of
the FDIC as receiver under the Dodd-Frank Act.\6\
---------------------------------------------------------------------------
\5\ 12 U.S.C. 5390(c)(8)(D)(i).
\6\ 12 U.S.C. 5381(a)(8).
---------------------------------------------------------------------------
The treatment afforded to QFCs under Title II parallels the
treatment afforded to them under section 11(e) of the FDIA.\7\ Under
Title II and the FDIA, from the time the FDIC is appointed as receiver
until 5 p.m. (eastern time) on the business day following the date of
the appointment, a QFC counterparty is prohibited from exercising any
contractual rights (including termination) triggered by the appointment
of the receiver.\8\
---------------------------------------------------------------------------
\7\ 12 U.S.C. 1821(e).
\8\ See e.g., 12 U.S.C. 5390(c)(9) and (10).
---------------------------------------------------------------------------
After its appointment as receiver and prior to 5 p.m. on the
following business day, the FDIC has three options for a QFC to which a
covered financial company is a party:
(1) Transfer the QFC to another financial institution;
(2) Retain the QFC within the receivership and allow the
counterparty to terminate; or
(3) Retain the QFC within the receivership and disaffirm or
repudiate the QFC and pay compensatory damages.\9\
---------------------------------------------------------------------------
\9\ 12 U.S.C. 5390(c)(1), (10) and (11).
---------------------------------------------------------------------------
In order to assess the options that would be available following
its appointment as receiver, the FDIC needs detailed information about
the covered financial company's QFCs. Section 210(c)(8)(H) therefore
requires that the Federal primary financial regulatory agencies, as
defined in the Act \10\ (the ``PFRAs''), to jointly prescribe, by July
21, 2012, final or interim final regulations that require financial
companies to maintain such records with respect to QFCs that the PFRAs
determine to be necessary or appropriate to assist the FDIC as receiver
for a covered financial company. Section 210(c)(8)(H) further provides
that if the PFRAs do not so prescribe such joint regulations by July
21, 2012, the Secretary, as Chairperson of the Council, shall prescribe
such regulations in consultation with the FDIC.
---------------------------------------------------------------------------
\10\ 12 U.S.C. 5301(12). See the term ``primary financial
regulatory agency.''
---------------------------------------------------------------------------
As the PFRAs did not prescribe such regulations by the statutory
deadline, the Secretary, as Chairperson of the Council, in consultation
with the FDIC, is publishing the Proposed Rules. As described in
greater detail below, the Proposed Rules would apply to a ``records
entity,'' which is defined in the Proposed Rules to include certain
types of financial companies that are parties to an open QFC or
guarantee, support, or are linked to an open QFC and that meet certain
size or other thresholds (such as risk, complexity, and
interconnectedness), or other conditions or are certain affiliates in
the same corporate group as a financial company that meets these
thresholds or conditions (referred throughout this release as
``affiliated financial companies'') and that are party to an open QFC
or that guarantee, support, or are linked to an open QFC of an
affiliate.\11\
---------------------------------------------------------------------------
\11\ The term ``affiliated financial companies'' used in this
release is the combination of two defined terms in the Proposed
Rules: ``affiliate'' is defined in Sec. 148.2(a) and ``financial
company'' is defined in Sec. 148.2(f) of the Proposed Rules. An
affiliated financial company of a records entity would itself be a
records entity if it is not an exempt entity and is a party to an
open QFC or guarantees, supports, or is linked to an open QFC of an
affiliate. An ``open'' QFC is a QFC which has not been fully
performed.
---------------------------------------------------------------------------
The Proposed Rules would require these records entities to maintain
detailed information about their QFC positions and be capable of
providing this information to their PFRAs within 24 hours of request by
their PFRAs. This would assist the FDIC in resolving financial
companies that may be subject to an orderly liquidation under Title II
of the Dodd-Frank Act based on consideration of such financial
companies' size, risk, complexity, leverage, frequency and dollar
amount of QFCs and interconnectedness to the financial system, and any
other factors deemed appropriate.\12\ To that end, it is necessary that
financial companies that qualify as records entities maintain the
capacity to generate, on an ongoing basis, QFC information in a common
data format. To facilitate the resolution of QFC portfolios, the FDIC
needs to analyze such data upon being appointed as receiver under Title
II. The information must be sufficient to allow the FDIC to estimate
the financial and operational impact on the covered financial company
or its affiliated companies of the FDIC's decision to transfer,
disaffirm or repudiate, or retain the QFCs. It must also allow the FDIC
to assess the potential impact that such decisions may have on the
financial markets as a whole. The standardized data format would reduce
the time and effort needed by the FDIC to perform the analysis and
would facilitate comparison of QFC data across financial companies with
large complex QFC portfolios.
---------------------------------------------------------------------------
\12\ See 12 U.S.C. 5390(c)(8)(H)(iv).
---------------------------------------------------------------------------
The Proposed Rules also would allow the Secretary to issue
conditional or unconditional general and specific exemptions from one
or more requirements in the rule as the Secretary determines to be
necessary or appropriate, including whether application of one or more
requirements of the rule would not be necessary to achieve the purpose
of the rule. The issuance of a conditional or unconditional exemption
would be consistent with section 210(c)(8)(H)(iv) of the Act which
provides that the regulations required by section 210(c)(8)(H)(i)
differentiate among financial companies, as appropriate, by taking into
consideration a number of factors. Specifically, the Secretary would
consider whether to grant an exemption after receiving a recommendation
from the FDIC, prepared in consultation with the applicable PFRAs, that
takes into consideration the financial company's or financial
companies' size, risk, complexity, leverage, frequency and dollar
amount of QFCs, and interconnectedness to the financial system and any
other factors deemed necessary or appropriate.
The proposed recordkeeping requirements of the Proposed Rules are
based, in part, on 12 CFR part 371, Recordkeeping Requirements for
Qualified Financial Contracts,\13\ which
[[Page 968]]
implements section 11(e)(8)(H) of the FDIA.\14\ The Proposed Rules also
have been informed by the FDIC's experience with both large and small
portfolios of QFCs of failed insured depository institutions.
---------------------------------------------------------------------------
\13\ 73 FR 78170 (Dec. 22, 2008). Part 371 requires an insured
depository institution in troubled condition, upon written
notification by the FDIC, to produce immediately at the close of
processing of the institution's business day, for a period provided
in the notification, the electronic files for certain position level
and counterparty level data; electronic or written lists of QFC
counterparty and portfolio location identifiers, certain affiliates
of the institution and the institution's counterparties to QFC
transactions, contact information and organizational charts for key
personnel involved in QFC activities, and contact information for
vendors for such activities; and copies of key agreements and
related documents for each QFC.
\14\ 12 U.S.C. 1821(e)(8)(H).
---------------------------------------------------------------------------
The recent financial crisis demonstrated that management of QFC
positions, including steps undertaken to close out such positions, can
be an important element of a resolution strategy which, if not handled
properly, may magnify market instability. The recordkeeping
requirements of the Proposed Rules are designed to ensure that the
FDIC, as receiver of a covered financial company, will have
comprehensive information about the QFC portfolio maintained by such
financial company subject to orderly resolution, and to enable the FDIC
to plan the rapid and orderly resolution of a financial company's QFC
portfolio in the event of insolvency. The Proposed Rules are also
designed to provide the FDIC with information necessary for the FDIC as
receiver to comply with the statutory requirements for the transfer,
disaffirmance, or repudiation of the QFCs of a financial company,
within any applicable time periods mandated under Title II of the Dodd-
Frank Act.
B. Publication of the Notice of Proposed Rulemaking
The Secretary is publishing this notice of proposed rulemaking in
light of his responsibilities under section 210(c)(8)(H) of the Dodd-
Frank Act. The Secretary is seeking comment on all aspects of the
Proposed Rules.
The Proposed Rules provide that the compliance date for most of the
provisions will be the day that is 270 days after a records entity
becomes subject to the final rule. Thus, for entities that would be
subject to the final rule on its effective date, the compliance date
would be the day that is 270 days after the effective date of the final
rule (which is 330 days after the date of publication). However, one
aspect of the Proposed Rules will require compliance in 60 days.
Specifically, on the effective date of the final rule, a records entity
must provide up-to-date contact information to the FDIC and each of its
PFRAs. A financial company that becomes a records entity after the
effective date of the final rule would be required to provide such
contact information within 60 days of becoming a records entity.
II. Background--QFCs and Receivership
A QFC is a type of financial contract and is defined in section
210(c)(8) of the Act. As further described below, QFCs are treated
differently than other types of contracts in the event of the failure
of a financial company.\15\ The treatment afforded to QFCs under Title
II parallels the treatment afforded to QFCs under section 11(e) of the
FDIA.\16\
---------------------------------------------------------------------------
\15\ 12 U.S.C. 5390(c)(8), (9), and (10).
\16\ 12 U.S.C. 1821(e).
---------------------------------------------------------------------------
Under section 210(c)(8), QFCs include five specific types of
financial contracts: securities contracts, commodity contracts, forward
contracts, repurchase agreements, and swap agreements.\17\ The FDIC is
empowered to define other similar agreements as QFCs by rule,
regulation or order.\18\ In addition, a master agreement that governs
any contracts in these five categories is treated as a QFC.\19\
Security agreements, guarantees, credit enhancements or reimbursement
obligations that relate to QFCs are also defined to be QFCs.\20\ All
swaps and security-based swaps defined in Title VII of the Act qualify
as QFCs under section 210(c)(8).
---------------------------------------------------------------------------
\17\ 12 U.S.C. 5390(c)(8)(D)(i). The term ``securities
contract'' includes contracts ``for the purchase, sale or loan of a
security[.]'' 12 U.S.C. 5390(c)(8)(D)(ii).
\18\ 12 U.S.C. 5390(c)(8)(D)(i).
\19\ 12 U.S.C. 5390(c)(8)(D)(viii).
\20\ 12 U.S.C. 5390(c)(8)(D)(ii)-(vi).
---------------------------------------------------------------------------
The filing of a bankruptcy petition or the appointment of the FDIC
as receiver triggers an automatic stay that precludes a party to most
types of contracts with an insolvent company from taking actions under
that contract.\21\ Therefore, most types of contracts with a financial
company cannot be terminated based solely upon the appointment of the
FDIC as receiver.\22\ Under Title II, the FDIA, and other U.S.
insolvency statutes, however, a party to a QFC with an insolvent entity
can exercise any of its contractual rights to terminate such QFC,
offset or net any amounts due, and apply any pledged collateral for
payment of such amounts subject to certain conditions.\23\ Further,
under Title 11 of the United States Bankruptcy Code (``Bankruptcy
Code''), this right to terminate is immediate upon initiation of
bankruptcy proceedings.\24\ However, Title II and the FDIA do not
permit counterparties to exercise a contractual right of termination
based solely upon insolvency or the appointment of a receiver until
after 5 p.m. (eastern time) on the first business day following the
appointment of the FDIC as receiver,\25\ nor do they permit
counterparties to terminate a QFC because of its transfer to a bridge
entity or another financial institution.\26\
---------------------------------------------------------------------------
\21\ See 11 U.S.C. 361; 12 U.S.C. 1821(e)(13); 12 U.S.C.
5390(c)(13).
\22\ 12 U.S.C. 5390(c)(13) and 12 U.S.C. 1821(e)(13)(A).
\23\ See e.g.,12 U.S.C. 5390(c)(8)(A).
\24\ 11 U.S.C. 362(b)(6), (7) and (17).
\25\ 12 U.S.C. 1821(e)(10)(B)(i) and 12 U.S.C.
5390(c)(10)(B)(i). This time frame in which QFC counterparties are
stayed from acting is in contrast to parties to other contracts with
a failed financial company, who are stayed from terminating such
other contracts for 90 days.
\26\ Id. There is an exception to this general rule in section
210(c)(8)(G) with respect to cleared QFCs, which provides in
relevant part that a clearing organization would not be stayed from
exercising its rights to liquidate all positions and collateral of
the covered financial company under the company's QFCs in certain
circumstances. See 12 U.S.C. 5390(c)(8)(G).
---------------------------------------------------------------------------
After its appointment as receiver and prior to the close of the 5
p.m. window, the FDIC has three options in managing a covered financial
company's QFC portfolio. With respect to all of the covered financial
company's QFCs with a particular counterparty, and its affiliates, the
FDIC may:
(1) Transfer the QFCs to another institution, including a bridge
financial company established by the FDIC; \27\
---------------------------------------------------------------------------
\27\ 12 U.S.C. 5390(c)(9). The FDIC as receiver of an insolvent
financial company may establish a bridge financial company and
transfer to such company assets and certain liabilities as the FDIC
generally deems appropriate. 12 U.S.C. 5390(h).
---------------------------------------------------------------------------
(2) Retain the QFCs within the receivership and allow the
counterparty to terminate; or
(3) Retain the QFCs within the receivership, disaffirm or repudiate
the QFCs, and pay compensatory damages.\28\
\28\ 12 U.S.C. 5390(c)(11).
---------------------------------------------------------------------------
Within certain constraints,\29\ the FDIC can take different approaches
to QFCs with different counterparties. However, the receiver's power to
transfer or repudiate a QFC is limited. If the FDIC as receiver desires
to transfer any QFC with a particular counterparty, it must transfer
all QFCs between the covered financial company and such counterparty
and any affiliate of such counterparty to a single financial
institution. Similarly, if the FDIC desires to repudiate any QFC with a
particular counterparty, it must repudiate all QFCs between the covered
financial company and such counterparty and any affiliate of such
counterparty as a group.\30\
---------------------------------------------------------------------------
\29\ 12 U.S.C. 5390(c)(11)(A).
\30\ For transfer, see 12 U.S.C. 5390(c)(9)(A); for repudiation,
see 12 U.S.C. 5390(c)(11).
---------------------------------------------------------------------------
Transfer: The FDIC may transfer a QFC to any other financial
institution not subject to a bankruptcy or insolvency proceeding. Such
financial
[[Page 969]]
institutions include, but are not limited to, banks, foreign banks,\31\
and bridge financial companies operated by the FDIC. If the FDIC as
receiver transfers a QFC to a financial institution within the
specified period of time, the counterparty cannot exercise its
contractual right to terminate the QFC solely by reason of or
incidental to the appointment of the FDIC as receiver, or the
insolvency or financial condition of the covered financial company.\32\
If the FDIC as receiver decides to transfer any QFCs, it must take
steps reasonably calculated to provide notice of the transfer of the
QFCs of the failed financial company to the relevant
counterparties.\33\ The counterparties must accept the transferee as a
counterparty and cannot terminate the QFC solely by reason of such
transfer.\34\
---------------------------------------------------------------------------
\31\ The FDIC as receiver of a covered financial company may not
transfer QFCs to a foreign bank unless, under applicable law, the
contractual rights of the parties to such QFCs and any netting
contracts, security agreements or arrangements or other credit
enhancements related to any such QFCs are enforceable substantially
to the same extent as under 12 U.S.C. 5390. 12 U.S.C. 5390(c)(9)(B).
\32\ 12 U.S.C. 5390(c)(10)(B) and 12 U.S.C. 5390(c)(16).
\33\ See 12 U.S.C. 5390(c)(10)(B).
\34\ 12 U.S.C. 5390(c)(10)(B).
---------------------------------------------------------------------------
Disaffirmance or Repudiation: The FDIC as receiver may disaffirm or
repudiate a QFC within a reasonable period of time if the receiver
determines that the contract is burdensome.\35\ If the receiver does
not elect to transfer all QFCs with a given counterparty (and with its
affiliates), under the law the receiver has a ``reasonable time'' in
which to repudiate such QFCs. However, as a practical matter, the
receiver must promptly decide whether to repudiate all QFCs involving
such counterparty (and its affiliates), in order to minimize the
potential for an adverse change in the market value of such QFCs. For
example, although counterparties to QFCs that are not transferred are
not required to terminate the contracts immediately after the
expiration of a one-business day stay,\36\ they may decide to exercise
any contractual right they have to terminate in order to protect
against the potential adverse change in the market value of the QFCs
(especially if the counterparties have sufficient collateral to cover
the termination value of the QFCs).
---------------------------------------------------------------------------
\35\ 12 U.S.C. 5390(c)(1).
\36\ See 12 U.S.C. 5390(c)(8)(F)(ii), which provides that any
payment or delivery obligations otherwise due from a party pursuant
to the QFC shall be suspended from the time at which the FDIC is
appointed as receiver under the earlier of (I) the time at which
such party receives notice that such contract has been transferred
pursuant to section 210(c)(10)(A), or (II) 5 p.m. (eastern time) on
the business day following the date of the appointment of the FDIC
as receiver.
---------------------------------------------------------------------------
If the receiver repudiates the QFCs, it must pay actual direct
compensatory damages,\37\ which may include the normal and reasonable
costs of cover or other reasonable measure of damages used in the
industry for such claims (after giving effect to any contractual
netting rights of the counterparty). Such damages are calculated as of
the date of repudiation.\38\
---------------------------------------------------------------------------
\37\ The receiver's payment obligation is subject to the claims
process of 12 U.S.C. 5390(a)(2). Therefore, if the counterparty does
not have a perfected security interest in collateral sufficient to
satisfy its claim, the counterparty might not receive cash payment
in full.
\38\ 12 U.S.C. 5390(c)(3).
---------------------------------------------------------------------------
Retention: The FDIC's retention of a QFC in the receivership would
allow a counterparty to terminate the contract after 5 p.m. (eastern
time) on the first business day after the appointment of the FDIC as
receiver.\39\ If the counterparty then terminates QFCs with the
financial company, the counterparty may exercise any contractual right
it may have to net any payment the counterparty owes to the
receivership against any payment owed by the receivership to the
counterparty with respect to QFCs as set forth in any netting
agreement.
---------------------------------------------------------------------------
\39\ 12 U.S.C. 5390(c)(10)(B)(i).
---------------------------------------------------------------------------
In order to assess by 5 p.m. on the business day following the date
of its appointment as receiver of a financial company its options to
retain and allow the counterparty to terminate, retain and disaffirm or
repudiate, or transfer QFCs, the FDIC needs detailed information about
the company's QFCs. To make a well-informed decision on these three
options, the FDIC needs access to the information required to be
maintained under the Proposed Rules. The information must be sufficient
to allow the FDIC to estimate the financial and operational impact on
the covered financial company or its affiliated financial companies of
the receiver's decision to transfer, repudiate or retain the QFCs. It
must also allow the FDIC to assess the potential impact that such
decisions may have on the financial markets as a whole.
Under the Act, the FDIC as receiver has additional powers with
respect to contracts of subsidiaries or affiliates of a covered
financial company that are guaranteed or otherwise supported by or
linked \40\ to such covered financial company.\41\ Such contracts can
be enforced by the FDIC as receiver notwithstanding the insolvency,
financial condition, or receivership of the financial company.
Contracts which are guaranteed or otherwise supported by the covered
financial company remain enforceable by the FDIC if the FDIC transfers
any such guaranty or other support and all related assets and
liabilities to a bridge financial company or third-party financial
institution not subject to a bankruptcy or insolvency proceeding within
the period of time provided under section 210(c)(10), or if the FDIC
provides adequate protection \42\ with respect to the support of such
contracts.\43\ The FDIC as receiver may also need to make sure that
affiliates \44\ of the covered financial company continue to perform
their QFC obligations in order to preserve the critical operations of
the covered financial company and its affiliates. In such cases, the
FDIC may need to provide additional liquidity, support, or collateral
to the affiliates to enable them to meet collateral obligations and
generally perform their QFC obligations.\45\ The Proposed Rules
therefore would impose recordkeeping requirements on affiliated
financial companies in a corporate group because the Secretary, as
informed by the FDIC,
[[Page 970]]
believes that the information would be necessary or appropriate in
assisting the FDIC in exercising its rights as receiver for a financial
company with affiliates. In addition, the imposition of recordkeeping
requirements on affiliated financial companies could also assist the
FDIC as receiver of one or more of such affiliated financial companies
of the Act in fulfilling its obligations under section 210(c)(8), (9),
or (10).\46\
---------------------------------------------------------------------------
\40\ 12 U.S.C. 5390(c)(16). Section 210(c)(16) does not define
the terms ``linked'' to, or ``guaranteed or supported'' by, the
covered financial company. As explained later in this preamble, the
Proposed Rules include definitions of ``guaranteed or supported''
and ``linked'' that are consistent with the definitions of such
terms in the FDIC final rule implementing section 210(c)(16) of the
Orderly Liquidation Authority provisions of the Dodd-Frank Act. The
FDIC published a final rule addressing all aspects of section
210(c)(16) on October 16, 2012. 77 FR 63205 (``FDIC Final Rule'').
\41\ 12 U.S.C. 5390(c)(16). This section provides for the
enforcement of contracts guaranteed by a financial company subject
to orderly liquidation under Title II.
\42\ Under the FDIC final rule, contracts ``supported by'' a
covered financial company may also be enforced by providing
``adequate protection'' either in the alternative to transferring
any related support or in combination with a partial transfer of
such support. Adequate protection, with respect to the covered
financial company's support of the obligations under such contracts,
means: (1) making a cash payment or periodic cash payments to
counterparties to the extent that the failure to cause the
assignment and assumption of the covered financial company's support
and related assets and liabilities causes a loss to the
counterparties; (2) provision by the FDIC as receiver of a guarantee
of the subsidiary or affiliate's obligations; or, (3) provision of
relief that will result in realization by the counterparty of the
``indubitable equivalent of the covered financial company's support
of such obligations or liabilities.'' The definition of the term
``adequate protection'' is consistent with the definition under
section 361 of the United States Bankruptcy Code. 77 FR 63205.
\43\ 12 U.S.C. 5390(c)(16)(A)(ii). See also 77 FR 63205.
\44\ The term ``affiliate'' is defined in Sec. 148.2(a) of the
Proposed Rules as any entity that controls, is controlled by, or is
under common control with a financial company or counterparty.
\45\ See 12 U.S.C. 5384(d). Section 204(d) of the Act authorizes
the FDIC, for example, to make loans to and guarantee the
obligations of the covered financial company and its covered
subsidiaries.
\46\ For example, the FDIC could be appointed as receiver of an
affiliated financial company under section 210(a)(1)(E) of the Act.
---------------------------------------------------------------------------
Under Title II, the FDIC may become receiver for financial
companies of a substantial size or complexity. These large and complex
companies and certain of their affiliates that enter into QFCs may hold
large and complex portfolios of QFCs. Such financial companies and
their affiliates often have counterparties that are themselves members
of large, complex, and interconnected corporate financial groups.
Therefore QFCs tend to increase the interconnectedness of the financial
system and systemic risk. They are also an important and integral
component of a Title II resolution, presenting multiple challenges to
an orderly liquidation process. Given the limited post-receivership
time frame allowed by Title II for the FDIC to make decisions regarding
QFCs, it is important that the FDIC has adequate time to obtain QFC
data, conduct necessary analysis, and make informed decisions on a QFC
portfolio.
Therefore, the Secretary in consultation with the FDIC is proposing
the Proposed Rules described below. The Proposed Rules are similar to
the FDIC's Part 371 but the information requirements of the Proposed
Rules are more extensive. Unlike the FDIC's Part 371 (which requires
that only banks in ``troubled condition'' maintain records of QFCs) the
Proposed Rules do not contain such a ``troubled financial condition''
trigger. The recordkeeping requirements of the Proposed Rules have been
informed by the FDIC's experience in dealing with multiple QFC
portfolios of insured depository institutions. The data requirements
were also informed by efforts to standardize regulatory data.
Given the short time frame for the FDIC to make decisions regarding
a QFC portfolio of significant size or complexity, the Proposed Rules
would also require the use of an updated and standardized format to
allow the FDIC to obtain and process the large amount of QFC
information quickly. In the absence of updated and standardized
information, it is possible that QFCs could be left in the
receivership, when transfer to a solvent financial institution or a
bridge financial company would be a preferred course of action. The
absence of QFC data may reduce the FDIC's flexibility in managing the
QFC portfolio, and may increase systemic risk.
However, to reduce the burdens on financial companies, the Proposed
Rules provide that upon receipt of a written recommendation from the
FDIC, prepared in consultation with the primary financial regulatory
agencies for the applicable records entities, the Secretary may grant
conditional or unconditional exemptions as the Secretary determines to
be necessary or appropriate. Such exemptions could include a
conditional exemption to allow for a different recordkeeping format
than that set forth in the Proposed Rules. For example, financial
companies are required to report some QFC data to swap data
repositories (``SDRs''),\47\ and some data may be available through
derivatives clearing organizations registered with the CFTC or clearing
agencies registered with the SEC (collectively referred to in this
release as ``clearing organizations'').\48\ The Secretary notes that
the FDIC would need to be able to manipulate and analyze such data to
determine the effect of FDIC decisions under Title II with respect to a
covered financial company's QFC portfolio.
---------------------------------------------------------------------------
\47\ Not all QFC data would be reported under Title VII of the
Dodd-Frank Act. Some QFCs may not have central reporting
repositories.
\48\ Clearing organizations would include central counterparties
and security-based swap clearing organizations.
---------------------------------------------------------------------------
III. The Proposed Rules
The following section describes the requirements in the Proposed
Rules and the rationale underlying the requirements. The Proposed Rules
set forth the general requirements for financial companies, while the
detailed lists of the records that would be required to be maintained
are provided in the Appendix in the Proposed Rules.
The Proposed Rules are organized into four parts:
Section 148.1 Scope, purpose, effective date, and
compliance dates
Section 148.2 Definitions
Section 148.3 Form, availability and maintenance of
records
Section 148.4 Content of records
The Appendix in the Proposed Rules list the records that would be
required to be maintained and provide the file structure for the QFC
recordkeeping requirements. The Appendix is organized as follows:
Table A-1--Position-Level Data
Table A-2--Counterparty Collateral Data
Table A-3--Legal Agreements
Table A-4--Collateral Detail Data
The discussion in this section of the release is based on the
organization of the Proposed Rules and the Appendix is discussed in a
separate subsection below. The Secretary asks questions and solicits
comment in each subsection with respect to the related parts of the
Proposed Rules or the Appendix.
A. Scope, Purpose, Effective Date and Compliance Dates
Section 148.1(a) of the Proposed Rules defines the scope of the
rules and provides that the rules apply to each financial company that
is a ``records entity.'' Section 148.1(b) explains the purpose of the
rules. Section 148.1(c) sets forth the rule's effective and compliance
dates. The Proposed Rules are discussed below, followed by the
Secretary's questions regarding their subject matter.
1. Scope
a. Key Definitions
The scope of the Proposed Rules is established by certain key
definitions which determine the entities that would be subject to the
rules. Specifically section 148.1(a) of the Proposed Rules provides
that the rules would apply to any ``financial company'' that is a
``records entity'' as those terms are defined in the Proposed Rules.
The definitions of ``financial company,'' ``records entity,'' and other
related definitions are explained below, followed by an illustrative
discussion of the records entities within a U.S. bank holding company
structure, a summary of the application of the Proposed Rules to
clearing organizations, and a discussion of the records entities that
may come within the scope section of the Proposed Rules.
Financial Company: The Proposed Rules incorporate the definition of
a ``financial company'' set forth in section 201(a)(11) of the Dodd-
Frank Act. Entities that are not included in the section 201(a)(11)
definition of ``financial company'' would not be included in the
definition of ``records entity'' and, therefore, would not be subject
to the rules. Entities that are included in the section 201(a)(11)
definition of ``financial company'' would be subject to the rules if
they also meet the other criteria in the definition of records entity.
In addition, the definition of ``covered financial company'' in section
201(a)(8)(B) of the Dodd-Frank Act excludes insured
[[Page 971]]
depository institutions,\49\ which as a result are ineligible for
orderly liquidation under Title II. Thus, based on the section
201(a)(11) definition of ``financial company'' and the section
201(a)(8)(B) definition of ``covered financial company,'' the following
entities would not be required to maintain records under the Proposed
Rules:
---------------------------------------------------------------------------
\49\ 12 U.S.C. 5381(a)(8)(B).
---------------------------------------------------------------------------
Financial companies that are not incorporated or organized
under U.S. federal or state law;
Farm Credit System institutions;
Governmental entities, and regulated entities under the
Federal Housing Enterprises Financial Safety and Soundness Act of 1992
(``FHA''); \50\ and
---------------------------------------------------------------------------
\50\ 12 U.S.C. 4502(20). This provision, therefore, excludes
from the orderly liquidation authority of Title II the Federal
National Mortgage Association and any affiliate thereof, the Federal
Home Loan Mortgage Corporation and any affiliate thereof, and any
Federal Home Loan Bank.
---------------------------------------------------------------------------
Insured depository institutions.
The following financial companies would be subject to the rules if they
are incorporated or organized under any provision of federal law or the
laws of any State and meet the definition of ``records entity'' in the
rules:
A bank holding company;
A nonbank financial company supervised by the Board;
Any company that is predominantly engaged in activities
that the Board has determined are financial in nature or incidental
thereto for purposes of section 4(k) of the BHC Act; and
Any subsidiary (other than an insured depository
institution or insurance company) of such financial company where such
subsidiary is predominantly engaged in activities that the Board has
determined are financial in nature or incidental thereto for purposes
of section 4(k) of the BHC Act.\51\
---------------------------------------------------------------------------
\51\ See 12 U.S.C. 1843(k)(4)(C).
---------------------------------------------------------------------------
Records Entity: Each records entity would be required to maintain
records with respect to all of its QFCs unless such records entity
receives an exemption under the rules.\52\ In developing the definition
of a records entity, the Secretary took into consideration factors such
as financial company size, risk, complexity, leverage, frequency and
dollar amount of QFCs, and interconnectedness to the financial system
in addition to other factors described herein.\53\ The records entity
definition would include a financial company that is a party to an open
QFC or guarantees, supports, or is linked to an open QFC of an
affiliate and is a member of a corporate group in which at least one
financial company meets one of three other criteria for being a records
entity. Because affiliated financial companies that are part of the
same corporate group may play an important role in determining risks
that are present, the information about the affiliates' QFCs could
assist the FDIC as receiver. Furthermore, the FDIC has authority to
enforce the QFCs of affiliates of covered financial companies, the
obligations of which are guaranteed or otherwise supported by or linked
to the covered financial company.\54\
---------------------------------------------------------------------------
\52\ Exemptions would be available as outlined in Sec. 148.3(c)
of the Proposed Rules. For example, the Secretary may consent to the
use of electronic records maintained in an SDR or internally at the
records entity which are not in the format set forth in the
Appendices to the Proposed Rules if such alternative format is
sufficient to enable the FDIC as receiver to exercise its rights and
fulfill its obligations under 12 U.S.C. 5390(c)(8), (9), or (10).
See discussion below in subsection III.3.C of this Supplementary
Information.
\53\ See 12 U.S.C. 5390(c)(8)(H)(iv).
\54\ 12 U.S.C. 5390(c)(16).
---------------------------------------------------------------------------
A ``records entity'' is defined in section 148.2(l) of the Proposed
Rules as a financial company that: is not an exempt entity; is a party
to an open QFC, or guarantees, supports or is linked to an open QFC;
and meets one of the following requirements: (a) Is determined pursuant
to 12 U.S.C. 5323 (Title I of the Dodd-Frank Act) to be an entity that
could pose a threat to the financial stability of the United States;
(b) Is designated pursuant to 12 U.S.C. 5463 (Title VIII of the Dodd-
Frank Act) as a financial market utility \55\ that is, or is likely to
become, systemically important; or (c) Has total assets equal to or
greater than $50 billion,\56\ or (d) Is a party to an open QFC or
guarantees, supports, or is linked to an open QFC of an affiliate and
is a member of a corporate group within which at least one affiliate
meets one of the requirements in (a), (b), or (c).
---------------------------------------------------------------------------
\55\ See Title VIII, ``Payment, Clearing, and Settlement
Supervision Act of 2010.'' 12 U.S.C. 5461, et seq. A financial
market utility is defined in section 802(6) of Title VIII as any
person that manages or operates a multilateral system for the
purpose of transferring, clearing, or settling payments, securities,
or other financial transactions among financial institutions or
between financial institutions and such person. 12 U.S.C.
5461(6)(A).
\56\ Total assets would be determined based on the most recent
year-end consolidated statements of financial condition filed with a
primary financial regulatory agency. For financial companies that
are not required to file such statements, total assets would be
determined based on the consolidated balance sheet for the most
recent fiscal year-end. An entity, such as an investment adviser,
that acts as agent on behalf of a client and is not a party to that
client's QFC or does not support, guarantee or is not otherwise
linked to that client's QFC would not be subject to the rule.
---------------------------------------------------------------------------
The Secretary has adequately considered the factors referenced in
section 210(c)(8)(H)(iv) in developing the scope of the definition of
records entity. The Secretary has decided to include in the scope of
the definition of records entity those financial companies that: (1)
the Council determines could pose a threat to U.S. financial stability;
(2) the Council designates as systemically important financial market
utilities; and (3) financial companies that have at least $50 billion
in assets, for several reasons. First, the factors the Council must
consider in designating a nonbank financial company as posing a threat
to financial stability under section 113 of the Act, or a financial
market utility as systemically important under section 804, are similar
to the factors listed in section 210(c)(8)(H)(iv). The Council may make
a determination under section 113 if it finds that material financial
distress at the nonbank financial company, or the nature, scope, size,
scale, concentration, interconnectedness, or mix of the activities of
the nonbank financial company could pose a threat to the financial
stability of the United States.\57\ Similarly, in making a
determination that a financial market utility is or is likely to become
systemically important, the Council is required to consider the effect
that the failure of or a disruption to the financial market utility
would have on critical markets, financial institutions, or the broader
financial system.\58\ The Secretary believes that it would be
unnecessary to create a different scheme for determining the scope of
financial companies subject to recordkeeping for the purposes of this
rulemaking.\59\
---------------------------------------------------------------------------
\57\ Section 113 authorizes the Council to make determinations
for U.S. nonbank financial companies and foreign nonbank financial
companies pursuant to two separate paragraphs, but the
considerations related to the financial stability of the United
States are nearly identical. See 12 U.S.C. 5323(a) and (b). A
determination under section 113 would mean that the nonbank
financial company would be subject to supervision by the Board of
Governors of the Federal Reserve System and to enhanced prudential
standards established in accordance with Title I. See 12 U.S.C.
5365.
\58\ 12 U.S.C. 5463(a)(2)(D).
\59\ The first proposed prong under Sec. 148.2(l)(3) of the
Proposed Rules includes those entities that the Council designates
as posing a threat to U.S. financial stability. The Council takes
into consideration each of the factors expressly referenced in
section 210(c)(8)(H)(iv) as follows: leverage of a company is
expressly considered under rule 1310.11(a)(1) and (b)(1); complexity
is addressed in a variety of ways, including under rules
1310.11(a)(2) and (b)(2) regarding the extent and nature of off-
balance-sheet exposures; interconnectedness to the financial system
is addressed in several of the rules including rules 1310.11(a)(3)-
(5) and (b)(3)-(5); size is expressly addressed in rules
1310.11(a)(7) and (b)(7); frequency and dollar amount of QFCs, to
the extent relevant, is addressed through rules 1310.11(a)(9) and
(10) and (b)(9)(10); and risk is addressed directly and indirectly
through various rules, including for instance rules 1310.11(a)(1),
(a)(2), (a)(10) and (11), (b)(1), (b)(2) and (b)(10) and (11). See
12 CFR part 1310. See also 77 FR 21637. The second proposed prong
under Sec. 148.2(l)(3) of the Proposed Rules includes those
entities that the Council designates as systemically important
financial market utilities under 12 CFR part 1320. The Council's
rulemaking regarding financial market utilities takes into
consideration various factors, which are directly or effectively the
factors referenced in section 210(c)(8)(H)(iv). See 12 CFR 1320.10.
See also 76 FR 44763. In the third proposed prong of Sec.
148.2(l)(3) of the Proposed Rules, the stand-alone test of assets
equal to or greater than $50 billion is used because that size
threshold, by itself, together with other aspects of the definition
of records entity is sufficient to differentiate financial companies
or their corporate groups that might be subject to orderly
liquidation under Title II. The test in the fourth proposed prong of
Sec. 148.2(l)(3) of the Proposed Rules includes a requirement that
the entity be a member of a corporate group in which at least one
financial company meets one of the first three prongs, thus taking
the various factors into account. To the extent a general or
specific exemption from the rules may be necessary or appropriate,
it is expected that the Secretary would consider these factors in
determining whether to grant an exemption.
---------------------------------------------------------------------------
[[Page 972]]
The Secretary also believes that the $50 billion threshold is a
useful means for identifying entities that are of a sufficient size
that they could potentially be considered for orderly liquidation under
Title II, and therefore should be incorporated in the definition of a
records entity. A $50 billion asset threshold has been separately
established for similar purposes under the Dodd-Frank Act.\60\ In
particular, the Council applies a $50 billion threshold as an initial
evaluation tool for determining whether a nonbank financial company
could pose a threat to the financial stability of the United States and
should be subject to heightened supervision under Title I of the Dodd-
Frank Act, citing the potential for these types of firms to pose a
threat to U.S. financial stability.\61\
---------------------------------------------------------------------------
\60\ 12 U.S.C. 5365(a).
\61\ See Authority to Require Supervision and Regulation of
Certain Nonbank Financial Companies. 12 CFR part 1310. In adopting
this threshold, the Council noted that it is consistent with the
Dodd-Frank Act threshold of $50 billion in assets for subjecting
bank holding companies to enhanced prudential standards. 77 FR
21637, 21661.
---------------------------------------------------------------------------
Finally, a nonbank financial company supervised by the Board, a
designated financial market utility, or a financial company (including
a bank holding company) with total assets of $50 billion or more are
the types of financial companies that potentially would be the most
likely to be considered for orderly liquidation under Title II.
Therefore, the Secretary proposes including this set of financial
companies in the definition of records entity for purposes of the
Proposed Rules. The definition of records entity is thus designed to
reduce recordkeeping burdens by only capturing those financial
companies with QFC positions for which the FDIC is most likely to be
appointed as receiver. It does not, however, capture an entity, such as
an investment adviser, that acts as agent on behalf of a client and is
not a party to or does not support, guarantee or is not otherwise
linked to that client's QFC. These criteria would serve to exclude from
the scope of the rule small financial company corporate groups that are
unlikely to be subject to the orderly liquidation authority of Title
II.
Exempt Entity: An exempt entity that would be excluded from the
definition of ``records entity'' and, therefore, the scope of the rules
is defined in section 148.2(e) of the Proposed Rules as:
(1) An insured depository institution as defined in 12 U.S.C.
1813(c)(2);
(2) A subsidiary of an insured depository institution that is
not a functionally regulated subsidiary as defined in 12 U.S.C.
1844(c)(5), a security-based swap dealer as defined in 15 U.S.C.
78c(a)(71), or a major security-based swap participant as defined in
15 U.S.C. 78c(a)(67); or
(3) A financial company that is not a party to a QFC and
controls only exempt entities as defined in clause (1) of this
definition.
Insured depository institutions are proposed to be exempt because they
are excluded from the definition of covered financial company and thus
from the scope of Title II regardless of whether they are also a major
swap or security-based swap participant or a swap or security-based
swap dealer.\62\ In addition, subsidiaries of an insured depository
institution which are supervised on a consolidated basis with the
insured depository institution are also proposed to be exempt for
purposes of consistency with the insured depository institution
exemption. However, functionally regulated subsidiaries, security-based
swap dealers, and major security-based swap participants are not
supervised on a consolidated basis with the parent insured depository
institution and are not already required to maintain records under Part
371, as discussed above. These subsidiaries meet the definition of
financial company in Title II, and would be required to comply with the
recordkeeping requirements of the rules if they are ``records
entities.'' Finally, a financial company that controls only insured
depository institutions and is not itself a party to a QFC is also
proposed to be exempt for purposes of consistency with the insured
depository institution exemption.
---------------------------------------------------------------------------
\62\ 12 U.S.C. 5381(a)(8)(B).
---------------------------------------------------------------------------
Guaranteed, Supported, or Linked: Under section 210(c)(16), the
FDIC as receiver for the covered financial company may enforce
contracts of subsidiaries or affiliates that are ``guaranteed,''
``supported'' by, or ``linked'' to the covered financial company.
However, section 210(c)(16) does not define these terms. The Proposed
Rules thus include a definition of ``guaranteed or supported'' and a
definition of ``linked,'' each of which is consistent with the
definition of similar terms in the FDIC's final rule implementing
section 210(c)(16) of the Orderly Liquidation Authority provisions of
the Dodd-Frank Act.\63\ Under the FDIC final rule, a contract is
``linked'' to a covered financial company if it contains a ``specified
financial condition clause,'' which is any provision that permits a
contract counterparty to terminate, accelerate, liquidate, or exercise
any other remedy under any contract to which the subsidiary or
affiliate is a party or to obtain possession of or exercise control
over any property of the subsidiary or affiliate or affect any
contractual rights of the subsidiary or affiliate based on enumerated
conditions related to the insolvency or financial condition of the
covered financial company. The FDIC final rule also defines the term
``support'' as undertaking any of the following for the purpose of
supporting the contractual obligations of a subsidiary or affiliate of
a covered financial company: guaranteeing, indemnifying, or undertaking
to make any loan or advance to or on behalf of the subsidiary or
affiliate; undertaking to make capital contributions to the subsidiary
or affiliate; or being contractually obligated to provide any other
financial assistance to the subsidiary or affiliate. In some instances,
``support'' may itself constitute a QFC.\64\
---------------------------------------------------------------------------
\63\ See 77 FR 63205 (October 16, 2012).
\64\ See, e.g., section 210(c)(8)(D)(ii)(XII) (defining
``securities contract'' to include ``any security agreement or
arrangement or other credit enhancement related to any agreement or
transaction referred to in this clause, including any guarantee or
reimbursement obligation in connection with any agreement or
transaction referred to in this clause'').
---------------------------------------------------------------------------
The terms ``linked'' and ``guarantees, supports'' are also used to
define the financial companies that are records entities under the
Proposed Rules. A financial company that guarantees or supports open
QFCs would be a records entity, provided that the other conditions of
the definition are met, because its exposure is connected to the
exposure of the financial company that is the counterparty to the QFC.
A
[[Page 973]]
financial company that is linked to an open QFC would also be a records
entity, provided that the other conditions of the definition are met,
because its financial condition or other circumstances are connected to
such counterparty. Moreover, the financial company providing support or
a guarantee is exposed, along with, depending on the circumstances, its
corporate group, to the risk of termination of QFCs. Therefore, the
Proposed Rules would require each records entity that guarantees or
supports QFCs to keep records with respect to all such guaranteed or
supported QFCs. The records entity that links its QFCs to another
entity would be responsible for keeping records related to the
specified financial condition clause. In each case, a records entity
would be responsible for obtaining from its affiliates all information
necessary to enable it to maintain these records.
Including affiliated financial companies as records entities under
the Proposed Rules is necessary: (1) To assist the FDIC in exercising
its right to enforce contracts of subsidiaries and affiliates under
section 210(c)(16), and fulfilling its obligations under section
210(c)(9) and section 210(c)(10) with respect to the timing and
notification of the transfer of any guarantee or other support and
related assets and liabilities in connection with any agreement or
transaction referred to in any such QFC; and (2) to assist the FDIC in
fulfilling its obligations under section 210(c)(9) and section
210(c)(10) in the event the FDIC is appointed as receiver of an
affiliated financial company. In connection with the transfers and
notifications under section 210(c)(9) and section 210(c)(10), the FDIC
will need the same information with respect to such QFCs (including
guaranteed or supported QFCs) of an affiliate as it does with respect
to QFCs to which the financial company was a party.
Affiliate, Subsidiary, and Control: The definitions of the terms
``subsidiary'' and ``affiliate'' in the Proposed Rules are consistent
with the definitions given to such terms in the Dodd-Frank Act. Section
2(18) of the Act provides that these terms will have the same meanings
as in section 3 of the FDIA (12 U.S.C. 1813). Under the FDIA, the term
``subsidiary'' is broadly defined as ``any company which is owned or
controlled directly or indirectly by another company.'' Similarly, the
term ``affiliate'' is defined by reference to the BHC Act, 12 U.S.C.
1841(k) as ``any company that controls, is controlled by, or is under
common control with another company.''
The definition of ``control'' is provided in the FDIA, which in
turn, refers to the definition provided in the BHC Act, 12 U.S.C.
1841(a). The Proposed Rules would define ``control'' to include a
company that directly or indirectly or acting through one or more
persons owns, controls, or has the power to vote 25 percent or more of
any class of voting securities of the company, controls in any manner
the election of a majority of the directors or trustees of the company,
or must consolidate another entity for financial or regulatory
reporting purposes. The first two prongs of this definition are
consistent with the BHC Act definition. The third prong reflects the
fact that, in certain situations, a controlling interest may be
achieved through arrangements that do not involve voting interests,\65\
and, unlike the BHC Act definition, provides an objective test that
does not require a determination by the Board.
---------------------------------------------------------------------------
\65\ See, e.g., Financial Accounting Standards Board, Statement
of Financial Accounting Standards No. 167 (2009).
---------------------------------------------------------------------------
Non-U.S. Entities. Because the Proposed Rules would incorporate the
Title II definition of ``financial company,'' the Proposed Rules apply
only to entities incorporated or organized in the United States that
are considered records entities under the Proposed Rules. For example,
a U.K.-incorporated London affiliate of a U.S. broker-dealer would not
be a records entity because it is a separate legal entity that is not
incorporated or organized within the United States.
b. Records Entities Within a U.S. Holding Company
Figure 1 below illustrates how the definition of financial company
affects whether various affiliates in a U.S. holding company corporate
group would qualify under the Proposed Rules as records entities based
on the application of the definition of financial company in the Dodd-
Frank Act and the Proposed Rules. The holding company and some
affiliates would qualify as records entities as shown below, while the
other affiliates would not.
[[Page 974]]
[GRAPHIC] [TIFF OMITTED] TP07JA15.000
c. Clearing Organizations
The Proposed Rules would not exclude from their scope any records
entity that is a clearing organization with respect to derivatives
cleared for its members. As part of fulfilling its responsibilities, a
clearing organization must keep, on a near real-time basis, thorough
and well-organized records of the contracts with each of its members.
The FDIC, as receiver for a clearing organization under Title II, would
have access to this information to analyze clearing organization
positions. Taking into consideration a clearing organization's
functions and that its role is to interpose itself between
counterparties to transactions, some of the data elements that would be
required by the Proposed Rules may not be relevant for clearing
organizations. The Appendix to the Proposed Rules provides that a
records entity may leave an entry blank or insert N/A in a data field
that does not apply to a given QFC transaction or agreement.
Accordingly, the Secretary seeks comment on the following: (i)
Whether the Proposed Rules should provide a different set of data
requirements for clearing organizations and/or for centrally cleared
transactions; (ii) whether such different data elements should contain
fields in addition to those included in Tables A-1 through A-4 of the
Appendix in the Proposed Rules, should exclude some of the fields
listed in Tables A-1 through A-4, or some combination of the two; and
(iii) whether any required data set should be maintained in a form or
fashion different from the format contained in the Proposed Rules. The
Secretary seeks comment on whether, and if so, how best to modify those
data elements and general recordkeeping requirements set forth in the
Proposed Rules with respect to clearing organizations and/or centrally
cleared transactions. For example, should the Secretary establish a
different set of data elements, data format, or other general
recordkeeping requirements for clearing organizations and/or centrally
cleared transactions? If yes, how should the format and the content of
data fields listed in Tables 1-4 of the Appendix in the Proposed Rules
be modified for clearing organizations? Which fields should be deleted,
modified, or replaced with other data fields? Are there any data fields
that should be added for clearing organizations and/or centrally
cleared transactions?
Upon the written recommendation of the FDIC, prepared in
consultation with the primary financial regulatory agencies for the
applicable records entities, the Secretary may also issue exemptions of
general applicability to address the issues that are relevant to
clearing organizations. In addition, the Secretary notes that for data
elements and recordkeeping requirements that
[[Page 975]]
may adversely affect a specific clearing organization, rather than all
clearing organizations, the specific exemption process set forth in the
Proposed Rules would be available. The decision to grant such an
exemption could be conditioned upon the ability of the clearing
organization to demonstrate and ensure that appropriate records are
kept.
d. Scope of Proposed Rules
The ``scope'' subsection of the Proposed Rules provides that the
rules apply to each entity that qualifies as a records entity. Section
210(c)(8)(H) of the Dodd-Frank Act gives the Secretary broad
flexibility in determining the scope of the recordkeeping requirements
based on factors that are deemed necessary or appropriate in order to
assist the FDIC as a receiver for a covered financial company in being
able to exercise its rights and fulfill its obligations under section
210(c)(8), (9) or (10) of the Dodd-Frank Act. Section 210(c)(8)(H) also
requires the regulations to differentiate among financial companies, as
appropriate, by taking into consideration their size, risk, complexity,
leverage, frequency and dollar amount of QFCs, and interconnectedness
to the financial system and any other factors deemed appropriate. As
discussed earlier, the Secretary has complied with these requirements.
The Secretary anticipates that records entities would include the
following types of financial companies (i) broker-dealers, investment
advisers, investment companies,\66\ security-based swap dealers,
security-based swap participants, and clearing agencies; \67\ (ii) a
bank holding company or bank holding company subsidiary (that is not an
insured depository institution or other type of exempt entity); a
savings and loan holding company or a savings and loan holding company
subsidiary (that is not an insured depository institution or other type
of exempt entity); a U.S. affiliate of a foreign bank; a noninsured
state member bank; an agency or commercial lending company other than a
federal agency; any organization organized and operated under section
25A of the Federal Reserve Act or operating under section 25 of the
Federal Reserve Act; (iii) any entity that the Council has determined
to be either (A) a nonbank financial company that could pose a threat
to the financial stability of the United States pursuant to 12 U.S.C.
5323 or (B) a financial market utility that is, or is likely to become,
systemically important pursuant to 12 U.S.C. 5463; (iv) subsidiaries of
State non-member insured banks that are not supervised on a
consolidated basis with the State non-member insured bank, or financial
companies that are not supervised by a PFRA.
---------------------------------------------------------------------------
\66\ Each individual series of a registered investment company
offering multiple series would be deemed to be a separate financial
company for purposes of these rules. See Investment Company Act
Release No. 7276 (Aug. 8, 1972) published at 37 FR 17384 (Aug. 26,
1972) (``The individual series of such a [registered open-end
investment] company are, for all practical purposes, separate
investment companies. Each series of stock represents a different
group of stockholders with an interest in a segregated portfolio of
securities.'').
\67\ Not all of these entities would qualify as records entities
subject to the Proposed Rules because of conditions in the
definition of records entity related to asset size, systemic
importance and QFC activity. ``Financial company'' includes any
company that is incorporated or organized under any provision of
federal law or the laws of any state and is predominantly engaged in
activities that the Board of Governors has determined are financial
in nature for purposes of section 4(k) of the Bank Holding Company
Act of 1956. 12 U.S.C. 5381(a)(11). Activities that are ``financial
in nature'' include ``providing financial, investment, or economic
advisory services, including advising an investment company'' and
``issuing or selling instruments representing interests in pools of
assets . . .'' and ``underwriting, dealing in, or making a market in
securities.'' 12 U.S.C. 1843(k)(4).
---------------------------------------------------------------------------
2. Purpose
Section 148.1(b) of the Proposed Rules provides that the purpose of
the rules is to establish QFC recordkeeping requirements for a records
entity in order to assist the FDIC as receiver for a covered financial
company.
3. Effective Date and Compliance Dates
Section 148.1(c) of the Proposed Rules provides that the rule would
become effective 60 days after publication of the final rule in the
Federal Register. Section 148.1(d) of the Proposed Rules provides that
each entity that constitutes a records entity on the date the final
rule becomes effective would be required to comply with the rule not
later than the 270th day after the date on which the final rule becomes
effective. For a records entity that becomes subject to the rule after
it becomes effective, compliance would be required 270 days after such
entity becomes subject to the rule. In addition, section 148.1(d) of
the Proposed Rules cross-references section 148.3(a)(3) of the Proposed
Rules and would require a financial company that is a records entity on
the effective date of the final rule to provide to each of its PFRAs
and the FDIC a point of contact responsible for recordkeeping under the
rule on the effective date of the rule. A financial company that
becomes a records entity after the effective date would be required to
provide a point of contact to each of its PFRAs and the FDIC within 60
days of becoming a records entity. A financial company that no longer
qualifies as a records entity would be permitted to cease maintaining
records one year after it ceases to qualify as a records entity. This
determination would be made on a rolling 12-month basis.\68\ The
Secretary considered periods ranging from six months to eighteen
months, but after consultation with the FDIC, chose to maintain a
parallel with the FDIC's Part 371 Recordkeeping rules.
---------------------------------------------------------------------------
\68\ For the rolling 12-month period, a financial company's
total consolidated assets are calculated based on the most recent
financial statements from the prior fiscal year-end.
---------------------------------------------------------------------------
If during the one-year period such financial company becomes
subject to the rules again, even for a short period of time, the one-
year period would be re-calculated from that later time. A financial
company that becomes subject to the rules again after it had ceased
recordkeeping would be required to comply with the requirements of the
rule within 90 days. The Proposed Rules specify that the 90-day period
commences on the date a financial company becomes subject to these
rules as a records entity.
Questions:
1. Is the scope of the Proposed Rules adequate? Should additional
entities be subject to the rule? Please provide specific details
supporting these views.
2. Is the initial compliance date of 270 days adequate? If it is
too long, please explain how records entities would be able to meet a
shorter initial compliance date? If it is too short, please explain why
a longer period would be necessary to comply with the rule.
3. Is the rolling 12-month baseline for a financial company to
cease being a records entity adequate? Please provide specific details
if it is inadequate. Is the subsequent compliance date of 90 days
adequate? Please provide specific details if it is inadequate.
4. Should each affiliate of a corporate group that meets the
records entity definition under section 148.2(l)(3)(iv) of the Proposed
Rules be required to maintain records, or should the parent company
aggregate records for all open QFCs that any such affiliate in the
consolidated corporate group is a party to or guarantees, supports, or
is linked? Should there be one recordkeeping requirement for an entire
corporate group by the top tier holding company? Are there any barriers
to the parent company obtaining the necessary information from such
subsidiaries and affiliates? Should the parent company be required to
maintain records for the QFCs at its foreign subsidiaries and
[[Page 976]]
affiliates? Would such a definition, in which only the parent company
in a corporate group is a records entity, make compliance more or less
burdensome? Are the recordkeeping requirements in the Proposed Rules an
effective means of assisting the FDIC as receiver of a covered
financial company to exercise its rights and fulfill its obligations
under section 210(c)(8), (9), or (10) of the Dodd-Frank Act? If not,
how could the Proposed Rules be more effective to assist the FDIC?
5. Should a records entity also be required to maintain records
with respect to QFCs of affiliates that are linked to such entity?
Should such records entity be responsible for obtaining from its
affiliates or subsidiaries all information necessary to enable such
records entity to maintain records with respect to QFCs of affiliates
that are linked to it? Is there a different way the FDIC could obtain
information about linked QFCs? Would the information provided in Table
A-3 to the Appendix be sufficient to identify such linkages? How would
such recordkeeping be handled if the affiliate is not a financial
company or is an exempt entity?
6. Would the current definitions provide for adequate recordkeeping
for QFCs at foreign affiliates of U.S. records entities (recognizing
that such foreign affiliates would not be records entities)? If not,
should the record maintenance requirements be altered?
7. Is the scope of the definition of ``exempt entity'' adequate?
What changes, if any, should be made to the definition of ``exempt
entity?'' Are there other entities that should be included in the
definition of ``exempt entity''? Are there entities that should be
excluded from the definition of ``exempt entity''? Should the rules
exempt other entities based on the number of QFC counterparties, QFC
notional amounts, QFC mark-to-market values as of a particular date, or
some other criteria? If so, at what levels should such exemptions be
set? Please provide any data or other analyses that support this view.
Should there be any other form of de minimis exemption?
8. Should the rules provide additional categorization or tiering of
financial companies based on other criteria? What should such other
criteria be? Would financial company or QFC portfolio leverage be
relevant? Should the dollar amount of the QFC portfolio or the
frequency of trading be used to differentiate among financial
companies? Please provide specific explanations of how such criteria
would be applied together with an explanation of whether such criteria
would help, be neutral to, or interfere with, the FDIC's ability to
resolve a QFC portfolio. Please provide specific details on the
relevance of such criteria toward the orderly liquidation authority
goal of reducing systemic risk.
9. Should the Secretary further differentiate among financial
companies or their corporate groups by their size, risk, complexity,
leverage, frequency and dollar amount of QFCs, or interconnectedness to
the financial system? Should any other factors be considered? Should
the Secretary adopt different criteria? Please provide specific details
on any factors to be considered or criteria proposed, including an
explanation on why such factors would help, be neutral to, or interfere
with, the FDIC's ability to resolve a QFC portfolio.
10. Should the Secretary have considered the factors referenced in
section 210(c)(8)(H)(iv) in a different way than discussed above?
Should the Secretary not rely on the Council's designations? If so, how
should the Secretary consider those factors? Should any other factors
be considered?
11. Is the scope of the Proposed Rules sufficiently clear with
respect to subsidiaries of insured depository institutions? If not, how
should the scope of the Proposed Rules be clarified? Should all
subsidiaries of insured depository institutions be included in the
scope of the Proposed Rules?
12. Is it appropriate to include affiliates and other entities that
might not be designated as systemically important, or that might not
have total assets equal to or greater than $50 billion, within the
scope of the Proposed Rules? If not, how should the scope of the
Proposed Rules be narrowed? For example, should affiliates be included
only if they themselves are designated as systemically important or
have total assets equal to or greater than $50 billion? How would this
affect the FDIC's ability to exercise its rights under the Act and
fulfill its obligations under section 210(c)(8), (9), or (10), as
receiver? Conversely, should the scope of the Proposed Rules regarding
affiliates be broadened? Are there any affiliates that would not fall
within the scope of the Proposed Rules that should? If so, why?
13. Does the definition of ``control'' adequately capture those
entities that should be defined as affiliates for purposes of the
rules? Should the definition of ``control'' be modified and, if so,
how? For example, should the definition be the same as the definition
of ``control'' under the BHC Act?
14. Should financial companies that guarantee or support QFC
positions be required to maintain records on such QFCs if such QFCs
qualify for treatment under section 210(c)(16)? If not, how would the
recordkeeping of such QFCs be handled?
15. Should there be any additional data to avoid duplication of
records of guaranteed, supported or linked QFCs if the related
affiliate also is a records entity and maintains records with respect
to such QFCs?
16. Is the criterion in the definition of records entity in section
148.2(l)(3)(iii) of the Proposed Rules appropriate? Should the
calculation of $50 billion in total assets exclude non-proprietary
assets that are included on a balance sheet under accounting rules,
such as certain types of client assets under management required to be
included on an investment adviser's balance sheet? Is it appropriate
for some financial companies or corporate groups with less than $50
billion in total assets to not be required to maintain records?
17. On what basis should investment advisers that are to be
included as records entities be identified? Should the advisers be
required to file fiscal year-end balance sheets and should their status
as records entities be based on information contained in these balance
sheets?
18. Are there any other entities for which the rules need not
apply? If so, which entities, and why?
19. Should swap dealers and major swap participants be required to
maintain records under the rules irrespective of the size and other
requirements of the definition of records entity?
20. Is the inclusion in the Proposed Rules of clearing
organizations or other financial market utilities that are designated
as systemically important appropriate? What issues should the Secretary
consider when addressing recordkeeping requirements with respect to
clearing organizations or other financial market utilities? What
records do clearing organizations currently maintain for QFCs? Are they
different from the records required in the Appendix to the Proposed
Rules? Are they different from those maintained by counterparties in
bilateral QFC transactions? If so, should a different framework for QFC
records be considered for clearing organizations than for other records
entities? Should a different set of data requirements be considered for
clearing organizations? Should such different data set contain fields
in addition to those included in Tables A-1 through A-4 of the
Appendix, exclude some of the fields
[[Page 977]]
listed in Tables A-1 through A-4 of the Appendix, or some combination
of the two? Should any required data be provided in a form or fashion
different from the format contained in the Proposed Rules?
21. Should the recordkeeping requirements for centrally-cleared
transactions differ from those for non-centrally-cleared transactions?
If so, should such requirements include data fields in addition to
those included in Tables A-1 through A-4 of the Appendix, exclude some
of the fields listed in Tables A-1 through A-4 of the Appendix, or some
combination of the two?
22. Are there special considerations regarding a clearing
organization resolution that should be reflected in the rule? In
particular, what records of a clearing organization would be useful to
the FDIC as receiver? Is this different from the records that are
needed for the resolution of other types of financial companies under
Title II? If so, how should recordkeeping requirements be modified to
address appropriately a clearing organization or other financial market
utility resolution?
23. Is it appropriate, if a registered investment company has
multiple series, to deem each series of the company to be a separate
financial company for purposes of the rules? If not, why not?
24. Should the rules apply to an investment adviser acting as agent
for its client with respect to a QFC if the adviser otherwise is not a
party to, does not support, does not guarantee, or is not linked to the
client's QFC?
B. General Definitions
In addition to the definitions described in detail above in
reference to the scope of the Proposed Rules, certain additional terms
are defined in the Proposed Rules to describe a records entity's
recordkeeping obligations. The term ``counterparty'' would be defined
as any natural person or entity (or separate non-U.S. branch of any
entity) \69\ that is a party to a QFC with a records entity. An
affiliate or a non-U.S. branch of such records entity that is not
itself a records entity would be considered a counterparty of a records
entity if it is a party to a QFC with such affiliated records entity.
The term ``counterparty'' would also include any natural person or
entity that is a party to a QFC that is guaranteed or supported by a
records entity. To the extent a corporate group includes more than one
records entity, for each inter-affiliate QFC to which two or more
affiliated records entities are a party (or are otherwise linked), each
affiliate would be required to treat the other as a counterparty for
purposes of the rules. Recordkeeping with respect to inter-affiliate
QFCs is necessary to enable the FDIC to decide as quickly as possible
which affiliated financial companies in a corporate group should be
subject to orderly liquidation under Title II, to understand all QFC
linkages in a corporate group, and to evaluate the potential systemic
effects of FDIC decisions.
---------------------------------------------------------------------------
\69\ The term non-U.S. branch is used to designate a U.S. entity
that operates in a non-U.S. jurisdiction under special license in
such jurisdictions instead of operating through a subsidiary
incorporated or organized in such non-U.S. jurisdiction.
---------------------------------------------------------------------------
The term ``primary financial regulatory agency'' would consist of
the Federal banking agencies, the CFTC, FHFA and the SEC and would be
defined by reference to the definition of ``primary financial
regulatory agency'' in the Dodd-Frank Act.\70\
---------------------------------------------------------------------------
\70\ 12 U.S.C. 5301(12).
---------------------------------------------------------------------------
Questions:
25. Should the proposed definition of counterparty be modified to
exclude some affiliated entities? If so, which affiliated entities
should be excluded and why?
26. Would the proposed definitions result in duplication of data or
positions? If so, how could such duplication be removed?
27. Is there an alternative means of introducing transparency for
inter-affiliate transactions other than including affiliates in the
definition of counterparty? How would the recordkeeping requirements
need to be modified to accomplish this goal?
28. Should other terms used in the Proposed Rules be defined? If so
which ones? Please include support for any suggested definition or
clarification to definitions supplied.
29. Are the Proposed Rules' definitions appropriate? Would there be
any additional definitions, modifications or considerations that would
be helpful?
C. Form, Availability, and Maintenance of Records
1. Form and Availability
Section 148.3(a)(1) of the Proposed Rules would require that a
records entity maintain all records in electronic form in the format
set forth in the Appendix to the Proposed Rules. All records entities
in a corporate group would be required to be able to generate data in
the same data format and use the same counterparty identifiers to
enable the aggregation of all records entities in the corporate group.
In addition, the use of such counterparty identifiers would enable the
data to be aggregated by counterparty, thus permitting the FDIC to
understand the exposure of the entire corporate group to a given
counterparty. The FDIC will use the aggregation of counterparty
positions to determine the effects of termination or transfer of QFCs.
Although the Proposed Rules specify a recordkeeping format, the
Secretary recognizes the need to build-in flexibility for an alternate
recordkeeping format. Therefore, Section 148.3(c) of the Proposed Rules
provides that the Secretary may grant conditional or unconditional
exemptions from compliance with one or more of the requirements of the
rule. An exemption with regard to the recordkeeping format requirements
could be conditioned upon the records entity keeping the records in an
alternate format that enables the FDIC to exercise its rights under the
Act and fulfill its obligations under section 210(c)(8), (9), or (10)
of the Act.
Section 148.3(a)(1) of the Proposed Rules would require that all
records be capable of being transmitted electronically to a records
entity's PFRA and the FDIC. This requirement would impose a
recordkeeping burden but not a reporting burden on records entities. In
order to comply with the rule, a records entity would need to ensure
that it is able to comply with the recordkeeping requirements of the
rules for all cross-border transactions.
These proposed requirements are necessary and appropriate in order
to assist the FDIC as receiver. Transparency with respect to all QFC
positions is necessary to enable the FDIC as receiver to rapidly
dispose of the QFC portfolio or perform on the QFCs and minimize the
potential for disorderly liquidation of the covered financial company
and increased systemic risk. Accordingly, the FDIC should have detailed
and complete information available to it with respect to all QFCs of a
records entity and its affiliated financial companies, without delay,
on the date of appointment. As discussed above, given the short time
frame for FDIC decisions, it may be difficult to obtain and analyze a
large amount of information unless it is readily available to the FDIC
in an updated and standardized format that enables the FDIC to carry
out the required financial and legal analysis in an expeditious and
efficient manner. Furthermore, absent electronic access to the complete
records of a records entity and the ability to view such information in
the context of the records entity's booking practices, governing law,
and organizational structure, the FDIC may
[[Page 978]]
not be able to analyze QFC positions and make decisions with respect to
such QFCs by the end of the first business day following the
appointment of the receiver. In addition, the FDIC could use the data
to help subsidiaries of a financial company in receivership perform
their obligations under the QFCs, thereby preserving the value of the
receivership estate. This should help to prevent the disorderly
termination of trades, including cross-border and affiliate trades,
which could have far-reaching negative effects on the records entity
and its corporate group, as well as the broader financial markets.
Section 148.3(a)(2) of the Proposed Rules would require that each
records entity maintain records for all QFCs to which it is a party,
including inter-affiliate QFCs to which it is a party. Each records
entity also would be required to maintain records for all QFCs that are
guaranteed or supported by such records entity.\71\ These records would
help to enable the FDIC as receiver to determine the effect of
termination or transfer of counterparty transactions on the QFC
portfolio held by affiliates as well as any potential effects on
broader financial markets, such as by inadvertently un-hedging one or
more affiliated counterparties. However, a records entity that is only
linked to an open QFC would not be required to maintain records under
the Proposed Rules with respect to such linked QFCs.
---------------------------------------------------------------------------
\71\ An entity, such as an investment adviser, that acts as
agent on behalf of a client would not be required to maintain
records for any QFC to which the adviser is not a party or that the
adviser does not support or guarantee.
---------------------------------------------------------------------------
Section 148.3(a)(3) of the Proposed Rules would require that each
records entity provide a point of contact to enable its PFRA and the
FDIC to contact the records entity with respect to the rule, and to
update this information within 30 days of any change. Because the FDIC,
after being appointed as receiver, will have very little time to update
QFC information and make decisions with respect to QFCs, the FDIC must
work cooperatively with personnel in charge of QFCs at each records
entity who can provide greater context for the data, including the
records entity's booking practices, governing law, and organizational
structure.
Section 148.3(a)(4) of the Proposed Rules would require that each
records entity that is regulated by a PFRA be capable of providing all
QFC records specified in the rules to its PFRA within 24 hours of
request. This requirement would impose a recordkeeping burden but not a
reporting burden on records entities. A PFRA could exercise its own
authority by imposing a 24 hour reporting requirement on a records
entity for the QFC records maintained under the rule, and by sharing
such records with the FDIC. The Secretary recognizes that many
financial companies may not currently have the capability to provide
all QFC records in the required format within a 24-hour time period.
Nevertheless, because of timing constraints set forth in Title II, the
FDIC must become familiar with the types and formats of QFC data
maintained by records entities to be able to comply with the statutory
deadlines upon receivership and to be able to exercise its rights under
the Act. In addition, the records entity must be able to generate the
records in the formats specified in the rules quickly, generally
overnight, to refresh the information provided to regulators. These
formats or records may also be used by the FDIC both to refine
receivership processes with respect to the evaluation of QFCs of
financial companies and their corporate groups, and to familiarize
itself with the QFCs of the records entities in a given corporate
group.
Questions:
30. Are the proposed requirements that records entities in a
corporate group be able to maintain the records in the same data format
and use the same counterparty identifiers to enable the aggregation of
the data across all records entities in the corporate group or by
counterparty reasonable?
31. Are there any other procedures that should be addressed by the
rules which may help streamline data production? For example, some
records entities may have a very large volume of QFC records. Could
this raise practical considerations in the electronic transmission of
such records?
32. Are there particular methods that would best address record
maintenance and data requirements for inter-affiliate transactions and
cross-border transactions? Should there be specific requirements for
such transactions? Should records entities be exempted from any part of
the recordkeeping requirements in the Proposed Rules for such
transactions?
33. Should the Proposed Rules set forth a standard data
specification that would require common data structures and content for
data submitted for each corporate group?
34. What types of consents, if any, would a records entity need to
obtain from counterparties outside of the United States in order to
comply with the recordkeeping requirements in the Proposed Rules? Would
records entities be able to comply with the rules if they are unable to
get such consents? Are there any alternatives to the Proposed Rules
that would allow the records entity to maintain the records and have
the capability to provide the data to its PFRA?
35. Should the chief compliance officer for registered investment
advisers and the officers of registered investment companies be deemed
to be the point of contact under the rules? If not, who should the
point of contact be for each of these entities?
36. The Proposed Rules currently contemplate requiring a records
entity that is regulated by a PFRA to be capable of providing to such
PFRA, within 24 hours of request, the required records. The records
entity must also be capable of transmitting electronically the required
records to such PFRA and the FDIC. Should the rule provide for the
PFRAs to make actual requests? If so, should anyone other than the PFRA
(e.g., the FDIC) also have the ability to request records? Should the
records entity be required to provide their records directly to the
FDIC rather than only to the PFRA? Is 24 hours sufficient time to
produce the records?
2. Maintenance and Updating
Section 148.3(b) of the Proposed Rules would require that each
records entity maintain the capacity to produce QFC records on a daily
basis based on previous end-of-day records and values. This provision
would not require that the records entity update all values daily in
the ordinary course of business. Rather, it would require that the
records entity have the capacity to do so upon request. Some data
elements set forth in Tables A-1 through A-4 of the Appendix may not
generally be updated daily. However, since all data items must be
updated to enable the FDIC as receiver to exercise its rights under the
Act and fulfill its obligations under sections 210(c)(8), (9), or (10)
within the limited time frame afforded by the Act, each records entity
would need to maintain the capacity to update the data elements to
current values within a 24-hour period. To the extent the electronic
recordkeeping system produces data that is more current than previous
end-of-day records and values (e.g., real-time data), such data would
also comply with the Proposed Rules. If a records entity is not able to
update the records or values quickly, the FDIC may not be able to
comply with the requirements of Title II with respect to QFCs. As
mentioned above, this inability of a records entity could increase the
potential for a disorderly liquidation of a financial company.
[[Page 979]]
When a records entity uses an affiliate or a third party to
maintain the records required under the Proposed Rules, it would be the
responsibility of the records entity to ensure that records maintained
by the affiliate or third party can be provided to the PFRA within 24
hours of a request.
Each records entity also would be required to be able to generate
historical end-of-day records of open QFC positions, and any other QFC
positions needed to generate data based on end-of-day records and
values, for a period of at least the preceding five business days.
Historical data are important as a measure of the day-to-day volatility
of the given positions, and such data may help the FDIC calculate
portfolio values on the business day after the appointment of the
receiver.
With respect to record retention, the proposed requirement for a
records entity to maintain records would generally apply to records and
values with respect to open QFC positions and any other QFC positions
needed to generate information based on end-of-day records and values
for at least the five business days prior to the date of a request.
Questions:
37. Are the record maintenance requirements of the Proposed Rules
sufficiently clear? If not, what additional requirements should be
adopted?
38. Is the five-day retention period for required historical data
sufficient? If a different period would be more appropriate, please
provide support for your recommendation.
39. In the case of records entities that use affiliates or third-
party service providers to maintain their records, is it appropriate
for the records entity to be responsible for providing the records
within 24 hours of a request, rather than the affiliate or third-party
service provider?
40. Should the records be retained for a period shorter or longer
than that set forth in the Proposed Rules based on the status of an
open QFC? What are the potential benefits or costs of a shorter or
longer period for record retention?
3. Exemptions
Section 148.3(c) of the Proposed Rules would permit the Secretary
to grant two types of exemptions from the rules. Any exemptions granted
pursuant to the rules may be subject to conditions. The Proposed Rules
provide that, upon written request by a records entity, the FDIC, in
consultation with the PFRAs for the records entity, may recommend that
the Secretary grant a specific exemption from compliance with one or
more of the requirements of the rules. For example, if a records entity
is a subsidiary of a national bank, but is also registered as a major
swap participant and a major security-based swap participant, the FDIC,
in consultation with the OCC, SEC and CFTC, could recommend that the
Secretary issue an exemption because the OCC is the primary banking
regulator while the SEC and the CFTC have oversight authority over the
entity by virtue of it being a major swap participant and a major
security-based swap participant. As another example, if a records
entity is a financial company that does not collect certain types of
QFC recordkeeping data in the ordinary course of its business, the
FDIC, in consultation with the relevant PFRAs, could recommend that the
Secretary issue a specific exemption from certain data requirements of
the rules, if the FDIC believes such data omissions are warranted under
the particular circumstances.
The Secretary would also be permitted to issue exemptions that have
general applicability upon receipt of a recommendation from the FDIC,
in consultation with the PFRAs for the applicable records entities. For
example, the FDIC, in consultation with the PFRAs, could recommend that
the Secretary issue an exemption informing all records entities that
some data elements required by Tables A-1 through A-4 of the Appendix
are not relevant for a particular type of QFC.
The Secretary considered authorizing the FDIC and the PFRAs to
jointly grant specific and general exemptions, because the PFRAs are
familiar with the operations of the records entities, and because the
FDIC as the intended user of the QFC recordkeeping would be affected by
the granting of any exemption. However, the Act does not appear to
authorize the Secretary, as Chairperson of the Council, to sub-delegate
decision making authority to other agencies. Instead, the Secretary is
turning directly to the FDIC and indirectly to the PFRAs for
recommendations on whether to grant specific or general exemptions. The
Secretary will consider any FDIC recommendation that carefully
considers the factors contained in section 210(c)(8)(H)(iv) of the Act.
Section 210(c)(8)(H) of the Dodd-Frank Act gives the Secretary
broad flexibility in determining the scope of the records entities
based on, as appropriate, the financial companies' size, risk,
complexity, leverage, frequency, and dollar amount of QFCs and
interconnectedness to the financial system. The Secretary also may
consider other factors deemed appropriate, which the Secretary believes
should include whether the application of one or more requirements of
the Proposed Rules is not necessary to achieve the purpose of the rule.
As noted previously, in determining whether to grant any exemptions
permitted under the rule, the Secretary expects to take into
consideration with respect to financial companies their size, risk,
complexity, leverage, frequency and dollar amount of QFCs,
interconnectedness to the financial system, and any other factors
deemed necessary or appropriate, including whether the application of
one or more requirements of the rule is not necessary to achieve the
purpose of the rule.\72\
---------------------------------------------------------------------------
\72\ See supra note 59.
---------------------------------------------------------------------------
Moreover, some records entities are subject to separate
recordkeeping rules promulgated by the CFTC and SEC and may in the
future be subject to additional recordkeeping requirements promulgated
by other U.S. and non-U.S. agencies. The exemption provisions set forth
in the Proposed Rules are designed to enable the rules to work in
conjunction with the CFTC's, SEC's and other regulatory recordkeeping
requirements as well as any global or local standard adopted after the
publication of the final rule, as they would provide the ability for
the Secretary to be flexible in taking such requirements and standards
into account. Although section 148.3(a)(1) of the Proposed Rules
specify a standard format for recordkeeping, the Secretary, upon
receipt of a recommendation from the FDIC made in consultation with the
appropriate PFRAs, could exempt records entities from this requirement
on the condition that they maintain electronic records maintained in a
swap data repository or internally in a different format. The format of
proposed Tables A-1 through A-4 of the Appendix therefore, should not
complicate appropriate recordkeeping, so long as the information set
forth in the Appendix can be provided to the FDIC in a manner that
allows the FDIC to properly analyze and aggregate the data. Records
entities could build upon the mandatory data templates of the swap data
repositories and augment and/or hyperlink the data to create the
totality of the information requested. A records entity could also help
the FDIC, upon appointment as receiver, analyze internal databases by
providing the personnel necessary to manipulate internal databases.
Because the PFRA for a records entity and the FDIC must work with and
understand the data, a records entity would need an exemption
[[Page 980]]
from the Secretary (which could be conditioned on the use of an
alternative recordkeeping format) before using a recordkeeping format
that is different from the format referenced in section 148.3(a)(1) of
the Proposed Rules.
The Proposed Rules also would empower the Secretary, in
consultation with the FDIC, to grant extensions of time with respect to
compliance with the recordkeeping requirements. It is anticipated that
such extensions of time would apply when records entities first become
subject to the rules and likely would not be used to lengthen the time
periods specified in the maintenance and updating requirements of the
rules. Extensions of time may also be appropriate on a limited basis
with respect to being capable of providing full records because of
unforeseen technical issues.
Questions:
41. Is the scope of the exemptions appropriate as written?
42. The Proposed Rules would allow the Secretary, upon receipt of a
written recommendation from the FDIC, to issue general or specific
exemptions based on factors the Secretary determines to be necessary or
appropriate. Is the prerequisite of an FDIC recommendation appropriate?
For example, in the case of a records entity request for a specific
exemption, should the Secretary proceed in determining whether to grant
or deny the request if the FDIC does not submit its recommendation
within a reasonable period of time? If yes, should the FDIC and/or the
PFRAs be consulted in some other manner? Is the FDIC's consultation
with the relevant PFRAs in preparing the written recommendation
appropriate? If not, should the relevant PFRA be involved in some other
manner? For example, should a recommendation be made jointly by the
FDIC and the relevant PFRA, or should they each submit separate
recommendations to the Secretary? Are the factors the FDIC would be
required to consider in making its recommendation appropriate?
43. Should the Secretary delegate decision making authority to the
FDIC, the PFRAs, or both with regard to granting general or specific
exemptions and extensions of time? If so, please explain the authority
by which the Secretary could make such a delegation.
44. How should the PFRAs' separate rulemaking and exemptive
authority be used in conjunction with exemptions under this rulemaking?
45. What is the volume and nature of exemption requests that
commenters believe are likely to be requested?
46. Should the final rule exempt categories of financial companies?
If so, which categories should be exempted and why? Alternatively,
should the final rule exempt certain categories of financial companies
only from certain provisions of the rules but require them to comply
with others? Please specify the conditions and factors to be considered
for each such exemption.
47. Should clearing organizations or other financial market
utilities be exempted from recordkeeping under the rule? Please explain
in detail why current recordkeeping requirements for clearing
organizations and other financial market utilities are sufficient to
enable the FDIC to conduct the orderly liquidation of clearing
organizations or financial market utilities.
48. What conditions, if any, should be included in a clearing
organization exemption? Should it suffice that a clearing organization
coordinates with its members that are records entities to ensure that
appropriate records are kept?
49. Is it feasible for data to be maintained in a standardized
format? Should specific format exemptions be included in the final
rule, in particular for formats used by common QFC reporting
repositories (e.g., swap data repositories)? To the extent such other
recordkeeping requirements do not meet the full requirements
contemplated here (e.g., they do not include certain categories or
fields necessary), how would records entities meet the contemplated
recordkeeping requirement? In such a case, would a format exemption
reduce regulatory burden?
50. Should the provisions addressing form and availability of data
be further detailed?
51. Should the rule specify a process for requesting exemptions and
extensions of time? If so, what should this process be?
D. Content of Records
1. General Information
Section 148.4(a) of the Proposed Rules would require each records
entity to maintain all data required by Tables A-1 through A-4 of the
Appendix, as well as additional information that is needed to be able
to understand affiliated relationships among records entities and
counterparties. Records entities may currently maintain such data;
however, they might not be maintaining it in the manner or format in
the Proposed Rules. By presenting the data elements in the form of an
Appendix, the Secretary has sought to maintain a parallel with the
FDIC's Part 371 QFC Recordkeeping rules, and to provide an easy means
of separating the data into their relevant categories. As stated below,
the Appendix corresponds to position level data, counterparty exposure
data, legal agreement data, and collateral data. Where appropriate,
each table in the appendix also gives an example of each data element
and describes the relevance of such data in the context of an FDIC
receivership.
For the purpose of QFC recordkeeping, each records entity would be
required to treat its affiliates, including affiliated clearing
organizations or other financial market utilities, as third-party
counterparties and maintain complete records of all inter-affiliate
QFCs. The Proposed Rules would require a records entity to use a unique
counterparty identifier to identify each of its counterparties. The
records entity would be required to assign a separate unique
counterparty identifier to each legal entity and each non-U.S. branch
or office of a legal entity that transacts business as a separate
branch or division to enable the FDIC to analyze cross-border QFC
activity. The unique counterparty identifier also would facilitate the
aggregation of positions by counterparty as well as the aggregation by
corporate group. The ability of records entities to incorporate unique
identifiers for each counterparty is likely to vary significantly
depending on the number and types of counterparties, and if the
counterparties are currently identified and tracked within the records
entity's systems.
Authorities from around the world, including the FDIC, have
established a global legal entity identifier (``LEI'') system, with
oversight effected by a Regulatory Oversight Committee (``ROC''),
comprised of those same authorities, in order to coordinate and oversee
a global system of legal entity identification. In June 2014, a Swiss
non-profit foundation (the ``Global LEI Foundation'') was established
with the intention for it to provide operational governance and
management over Local Operating Units (``LOUs'') that will issue LEIs.
Before the Global LEI Foundation was established, the ROC created
an interim system by which those with pre-LEIs (LEIs compliant with
various ROC principles) issued by ROC-endorsed LOUs would be sufficient
to satisfy the regulatory requirements of ROC member authorities.
As a result, unique LEIs were already being issued prior to the
operational governance and management of the system by the Global LEI
Foundation
[[Page 981]]
and such LEIs are being accepted by certain individual ROC members,
including for purposes of meeting certain other recordkeeping and
reporting requirements mandated by the Dodd-Frank Act. The Proposed
Rules would require records entities to use LEIs issued by LOUs
endorsed by the ROC, and by those LOUs endorsed or otherwise governed
by the Global LEI Foundation.
To the extent that the LEI or pre-LEI does not allow branches to be
separately identified, the records entity would be required to include
additional identifiers to enable the FDIC to segment the QFC activity
both across the corporate group and by jurisdiction, as treatment of a
QFC varies based on the law governing the QFC and/or the location of
the collateral.
To that end, financial companies would need to maintain the
capacity to generate QFC information in a common data format, at a
minimum, within each corporate group, and, ideally, among financial
companies. To facilitate the resolution of QFC portfolios, the FDIC
needs to analyze such data upon appointment as receiver under Title II
by working collaboratively with the PFRAs. The standardized data format
would reduce the time and effort needed by the FDIC to perform the
analysis and facilitate comparison of QFC data across financial
companies with large complex QFC portfolios.
A records entity also would be required to maintain electronic
copies of all agreements that govern the QFC transactions, as well as
credit support documents related to such QFC transactions. As noted
previously, electronic records are necessary or appropriate to assist
the FDIC as receiver to quickly analyze QFC positions and make prompt
decisions with respect to such QFCs, and to minimize the potential for
disorderly liquidation of the covered financial company and increased
systemic risk. These copies would need to be maintained in full-text
searchable electronic form, and would be required to include master
agreements and annexes, confirmations, master netting agreements,
credit support annexes, guarantees, net worth maintenance agreements,
security interest agreements, and other related agreements, if any.
Similarly, the Proposed Rules would require records entities to keep
full-text searchable copies of all assignment or novation documents to
enable the FDIC to determine the appropriate counterparties for the
various QFC positions.
The Proposed Rules would require that each records entity also
maintain a list of vendors directly supporting the QFC-related
activities and the contact information for such vendors. Section
148.4(a) of the Proposed Rules would also require that each records
entity maintain certain additional information with respect to its
current QFC portfolio, including information about the risk metrics
used to monitor the QFC portfolios and contact information for each
risk manager. The maintenance of such information would enable the FDIC
to contact a risk manager or vendor quickly in the event that the FDIC
requires additional information that is not currently included among
the required data. Furthermore, maintaining risk manager contact
information and a vendor list is unlikely to be overly burdensome
because most financial companies are likely to already maintain similar
information in the ordinary course of business.
Questions:
52. Are the proposed requirements related to unique counterparty
identifiers sufficient to enable compliance with the rules?
53. Is it necessary or appropriate for a records entity to maintain
full-text searchable electronic copies of all agreements governing QFC
transactions? If not, are there any viable alternatives to this?
54. Is it necessary or appropriate for a records entity to maintain
risk metrics used to monitor the QFC portfolio, risk manager contact
information, and a list of vendors that directly support the QFC
related activities of the records entity? If not, are there any viable
alternatives to this?
55. Should the rule include additional guidance with respect to
form, content and format of the records required? If so, how?
56. Should the rule specify a data standard (or language, or
specification, e.g., XML or XBRL) and a standard set (e.g., a schema or
taxonomy) of data item tags? Should the rule specify further the
definitions which the records entity must use for its QFC records data?
Please provide detailed specifications of the data standard or standard
set as well as of the proposed definitions, if any.
57. Should data elements be interoperable among affiliated records
entities and among financial company groups? If so, discuss which
standard(s) should be considered, and why? If the rule should not
include such a requirement to use a standard for the QFC data, will the
complexity and quantity of data hinder the ability of the FDIC to use
the QFC data for the purposes described in the rule?
2. Appendix Information
As described previously, the Proposed Rules would organize the
detailed QFC recordkeeping requirements into an appendix of four
tables: (1) Position-level data set forth in Table A-1; (2)
counterparty collateral data set forth in Table A-2; (3) legal
agreements related data set forth in Table A-3; and (4) collateral
detail data set forth Table A-4. The information that would be required
by Tables A-1 through A-4 is largely self-explanatory and contains
examples as well as narrative explanations of the applications. Some of
the data fields, such as the unique counterparty identifiers for the
records entity and the counterparty, are used in each table to help
link the data among the tables.
The Appendix specifies that a records entity may leave an entry
blank, or may insert ``N/A'' for any data fields that do not apply to a
given QFC transaction or agreement. For example, if a QFC is not
guaranteed, data fields that relate to a guarantee agreement would not
need to be filled in, so long as those guarantee-related fields that
required a Y/N (``Yes/No'') answer are completed where appropriate.
Similarly, if QFCs with a counterparty are not collateralized, there
would be no need to maintain collateral information with respect to
that counterparty.
a. Table A-1
Table A-1 would set forth position-level data that enable the FDIC
to evaluate a records entity's exposure to its counterparties. The FDIC
would also use these data to evaluate the effects of the receiver's
determination to transfer, disaffirm or repudiate, or retain QFCs. In
addition, position-level information would assist the receiver or any
transferee to comply with the terms of the QFCs and reduce the
likelihood of inadvertent defaults. For example, a unique position
identifier would allow for the tracking and separation of positions
maintained by the records entity, and the identifier also would be
consistent with the CFTC- and SEC-mandated data that need to be
reported to SDRs.\73\ The information would also be required to include
CUSIP identifier numbers, unique trade confirmation numbers, as well as
other internal identifying information relevant to the position.
---------------------------------------------------------------------------
\73\ See 17 CFR 45.5.
---------------------------------------------------------------------------
The unique booking unit or desk identifier is intended to serve to
further segment the data provided by the
[[Page 982]]
records entity. It identifies which division or trading desk of a
records entity has entered into the QFC position. This information is
necessary to enable the FDIC to evaluate the business purposes of each
QFC and locate back office contacts. The information that would be
maintained in this field would help to determine the purpose of the QFC
and assist the FDIC to determine whether the QFC was backed by another
entity or an affiliate, if the QFC had a full or partial hedge, or if
the QFC was used to hedge an asset. In addition to a unique booking
unit or desk identifier, a description of that booking unit or desk
would facilitate QFC classification. This description would assist in
determining the specific nature and purpose of the QFCs and enable the
FDIC to carry out an orderly liquidation.
Counterparties to records entities often trade QFCs under the terms
of a single master agreement or similar governing document. Each master
agreement may contain non-standard legal provisions that govern the
relationship of the parties. In certain cases, counterparties may
maintain multiple master agreements with the same records entity. For
the FDIC to accurately assess the effect of transfer or termination of
QFC positions on the financial stability of the derivatives and other
financial markets, such QFC positions would need to be aggregated under
the relevant corresponding agreements or governing documents at each
level permitted by the documents. To the extent the master agreements
are subject to further cross-product or multi-party netting, such
``master-master agreements'' also would need to be identified. All
master agreements are included in the QFC definition under the Act and
would be required to be treated as QFCs for all purposes under the
Proposed Rules. The data that would be maintained must enable the FDIC
to not only aggregate and disaggregate positions at the level of each
counterparty, affiliate, and agreement, but also to determine the
overall effect of the FDIC's decisions for each of the counterparty's
and the records entity's corporate groups.
Table A-1 would also require the records entity to maintain
information with respect to any loan or other obligation that relates
to a QFC. For example, the counterparty to a swap with a records entity
may have entered into the swap to hedge the interest rate exposure on
amounts borrowed from an affiliate of the records entity, where both
the loan and the swap are secured by one mortgage on the property. This
information is necessary to enable the FDIC to evaluate both the loan
and the swap. The information that would be maintained with respect to
related obligations includes a reference number of the obligation and
information about the borrower, lender and any other material terms of
the related obligation.
b. Table A-2
Table A-2 would require a records entity to maintain counterparty
aggregate exposures and collateral data for all QFCs entered into by a
records entity with a counterparty. For such data, the records entity
would need to demonstrate the ability to maintain itemized records of
collateral by counterparty, which also would allow for the aggregation
of collateral based on the netting rights of the counterparty and its
affiliates. The data would need to take into account enforceability of
netting in an insolvency close-out situation in specific jurisdictions,
in addition to contractual payment netting outside an insolvency or
receivership.
The information in Table A-2 would need to be maintained at each
level of netting under a master agreement. For example, if a master
agreement includes Annexes that require intermediate netting under each
Annex, the net exposures under each Annex would need to be maintained
separately. The data would need to identify whether multi-party or
cross-product netting is contemplated among affiliates in a corporate
group and provide exposure data taking into account such multi-party or
cross-product netting. To the extent netting is not enforceable in an
insolvency of the records entity or the counterparty, the positions
that cannot be netted in an insolvency would not need to be netted for
the purpose of Table A-2. This information would allow counterparty-
level data to be segregated by records entity and counterparty. The use
of the term ``counterparty'' would also include each affiliate in a
records entity's corporate group that is a counterparty to an inter-
affiliate QFC.
The title and name of each master agreement, master netting
agreement, and accompanying governing documentation relating to
counterparty positions, would enable the FDIC as receiver to identify
the related agreement and review the contractual provisions governing
the counterparty relationship.
The primary objective of proposed Table A-2 is to identify exposure
of the records entity to each counterparty and its affiliates, as well
as the exposure that counterparties might have to the records entity.
This information would enable the FDIC to determine the effects of
transfer or termination of QFCs with a given counterparty and the
potential risk of contagion in the financial markets. Therefore, the
data would need to be aggregated only to the extent permitted under the
governing agreements and applicable law. Such information also would
provide relative concentrations of risk with counterparties under each
applicable agreement. A records entity could also transact QFCs for
hedging or other purposes with the various affiliates within a group,
which may include cross-border positions that cannot be netted. In
order to assess the true exposure of an entity, the FDIC as receiver
must have a full understanding of the aggregate QFC position by
including all inter-affiliate transactions in its evaluations. This
information also would be needed to assess cross-border risk and
collateral availability as well as the likely systemic or practical
implication of transferring QFC positions.
Table A-2 would require comprehensive collateral information,
including market value of collateral, location of collateral, and any
custodial and segregation arrangements. Collateral excess or deficiency
positions as well as collateral thresholds and valuation discounts also
would need to be provided. The creditworthiness of counterparties that
might not be able to return rehypothecated collateral represents an
additional risk to a QFC transaction. Conversely, if the records entity
is able to rehypothecate collateral, the records entity may create
additional risks for its counterparties. Table A-2 would require
identification of the collateral status and a notation whether
collateral posted to a counterparty is subject to re-hypothecation.
This information would enable the FDIC as receiver to comply with the
law and transfer QFC obligations together with the related
collateral.\74\ In addition, it would enable the receiver to identify
excess collateral of counterparties for possible return should the
contracts be terminated after the one business day stay. For cross-
border transactions, this information would help the FDIC evaluate the
availability of collateral in different jurisdictions and the related
close-out risks if the receiver cannot arrange for the transfer of QFC
positions under local law.
---------------------------------------------------------------------------
\74\ 12 U.S.C. 5390(c)(9)(A)(i)(IV).
---------------------------------------------------------------------------
c. Table A-3
Table A-3 would require the maintenance of legal agreement data for
each QFC agreement or master agreement between each records entity
[[Page 983]]
and counterparty. For each QFC, the records entity would be required to
maintain in readily accessible searchable format all of the following
documents: Legal agreements (including master agreements, annexes,
supplements or other modifications with respect to the agreements)
between the records entity and its counterparties that govern QFC
transactions; documents related to and affirming the position; active
or ``open'' confirmations, if the position has been confirmed; credit
support documents; and assignment documents, if applicable, including
documents that confirm that all required consents, approvals, or other
conditions precedent for such assignment(s) have been obtained or
satisfied.
Counterparties to records entities often trade QFCs under the terms
of a master agreement (for example, an ISDA master agreement) coupled
with other governing documentation. Therefore, it is important that the
legal agreement(s) between the records entity and counterparty be
identified by name and any unique identifier information. Such
agreement(s) outline the legal terms of the transaction, including
relevant governing law, and will assist the receiver in determining a
definitive course of action. The records entity would need to identify
the relevant governing law. The records entity also would need to
include a list and description of any events of default or termination
events that are in addition to those specified in the form of agreement
used, as well as a list and description of events of default or
termination events that have been removed by mutual agreement. In
addition, each records entity would need to specify all ``specified
financial condition clauses'' that are part of a given agreement, as
well as the entity to which such QFCs are linked.
To the extent a counterparty does not use a specific industry
standard form, the records entity could either prepare this information
by reference to the standard form or by providing a list and
description of all relevant events of default or termination events.
This information would assist the receiver in planning a course of
action and in determining whether there are any events that trigger the
counterparty's right to terminate the agreement.
Because the receiver has a limited period of time in which to
evaluate QFC provisions, the availability of the legal agreements in
fully searchable electronic form is of utmost importance. In
particular, the identification of any support by or linkage to a parent
entity or affiliate and the identification of any transfer restrictions
and non-standard covenants would enable the FDIC as receiver to
evaluate the treatment of QFCs under such contracts in an orderly
liquidation of the records entity or its affiliate under Title II of
the Act
d. Table A-4
Table A-4 would expand on the information set forth in Table A-2.
Each records entity would be required to maintain collateral detail
data both with respect to collateral received and with respect to
collateral posted. Such information would need to be maintained on a
counterparty-by-counterparty basis. In addition, the data would need to
include collateral information for each records entity. The collateral
information would need to be capable of aggregation for the records
entity's corporate group, as well as the counterparty's corporate group
to the extent required or permitted by any applicable netting
agreements. The data in this Table, together with the data in Table A-
2, would allow the FDIC to better understand the QFC portfolio risk,
and to model various QFC transfer or termination scenarios.
Questions:
58. Is it reasonable for the Proposed Rules to require collateral
detail data both with respect to collateral received and collateral
posted, on a counterparty-by-counterparty basis? Is it reasonable for
the Proposed Rules to require data that include collateral information
for each records entity? If not, what are the viable alternatives?
59. Are there any additional records that should be maintained by a
records entity? If so, what additional categories or fields should be
included? Please be specific in identifying data to be maintained.
60. Do the recordkeeping requirements sufficiently capture
information regarding QFCs that are linked to the records entity? Do
the recordkeeping requirements sufficiently capture information
regarding QFCs that are guaranteed or otherwise supported by the
records entity?
61. In the event that only some portion of the QFC records need to
be capable of being produced immediately, should fewer data elements be
required?
62. Please comment on the general nature and scope of records
proposed to be maintained Should some records be further explained? How
does the nature and scope of records compare to other QFC recordkeeping
requirements (e.g., swap data repositories)? Are there ways to further
align the recordkeeping requirements with those of other reporting
repositories to reduce regulatory burden? If so, how? Do the proposed
recordkeeping requirements generally reflect the size and complexity of
entities that likely qualify as records entities? Are there any
additional records or data that would assist the FDIC in its role as
receiver with respect to a covered financial company?
63. Are there any impediments to maintaining the records proposed
to be required? How should these impediments be resolved? Please
specify why the unavailability of a record would or would not create
impediments to the transfer or repudiation of the affected QFCs.
64. Should different records or data be required to be maintained
by records entities based on entity types?
65. Are any of the proposed recordkeeping requirements not
necessary or appropriate to assist the FDIC as receiver? If not, why
not? Are some records not necessary or appropriate based on the entity
type of the records entity? Would any of the contemplated records or
data result in undue burden on records entities?
66. Do the proposed recordkeeping requirements overlap or conflict
with any existing or proposed regulatory requirements applicable to
various entities that would qualify as records entities? If so, how
should any conflicting or overlapping requirements be addressed?
Specifically, do the proposed recordkeeping requirements overlap with
or conflict with the proposed recordkeeping rules applicable to broker-
dealers and security-based swap dealers (SBSD)? \75\ If so, be as
specific as possible regarding how the Proposed Rules may conflict and
provide specific recommendations for making this Proposed Rules and the
proposed rules applicable to broker-dealers and SBSDs more consistent.
Do any existing regulatory requirements require records to be
maintained in a format that is similar to the format set forth in the
Proposed Rules, or that would otherwise allow for the FDIC to easily
evaluate the records in the event it is appointed as receiver? How
could any existing reporting or recordkeeping requirements be used to
assist the FDIC in its role as receiver? Could any existing regulatory
requirements be modified to require maintenance of the records required
under the Proposed Rules? If so, how? Would any such modifications
promote efficiencies or reduce the burden or costs on records entities?
Conversely, could they adversely affect the FDIC's ability to
[[Page 984]]
exercise its rights and obligations as receiver?
---------------------------------------------------------------------------
\75\ See e.g., Exchange Act Release No. 71958, 79 FR 25194 (May
2, 2014).
---------------------------------------------------------------------------
67. If there are QFCs between a records entity and a counterparty
that are of the type that typically would be covered by two or more
different types of master agreements, should a different schedule be
required for each such different type of QFC?
68. What would be the most efficient method of obtaining
information as to changes affecting individual positions, as well as
changes to Master Agreements pursuant to annexes, changes to annexes,
other amendments and protocols?
69. What would be the most efficient way to account for inter-
affiliate positions while avoiding duplication of position reporting?
Should the position-level data require a unique counterparty identifier
and counterparty name for the counterparty to related inter-affiliate
position(s) with non-records entities in the corporate group or with
non-affiliates?
70. In order to enable the FDIC as receiver to meet pending margin
calls for all companies in a corporate group, should a records entity
be required to provide information as to collateral deficiencies, after
giving effect to pending margin calls, of each subsidiary that is not a
records entity? Should a records entity also be required to provide
information as to the location of collateral provided in connection
with such subsidiaries' positions or other additional information with
respect to the positions of such subsidiaries?
71. Table A-1 of the Appendix requires position-level data that
identifies whether the purpose of such positions is for hedging or
trading, and if the purpose of a position is for hedging, Table A-1
requires a general description of the hedge (e.g., hedging mortgage
servicing or hedging a mortgage pipeline). This information is
necessary for the FDIC to determine the corporate group's business
strategy for purposes of estimating the financial and operational
impact of the FDIC's decision to transfer, disaffirm or repudiate, or
retain the QFC in the receivership. For example, if the covered
financial company entered into a QFC in the form of an interest rate
swap to hedge the interest rate risk associated with its portfolio of
mortgage-backed securities, knowing the purpose of the QFC position
will help the FDIC decide whether to transfer both the mortgage-backed
securities and the interest-rate swap to a bridge financial company.
Without knowing the purpose of the position, the FDIC could potentially
transfer the mortgage-backed securities to a bridge financial company
but leave the interest-rate swap in the receivership where it could
potentially be terminated by the counterparty, which would expose the
bridge financial company's assets to previously hedged risks. Should
the position-level data require the purpose of the position? With
respect to hedging positions, what are the appropriate general
categories for the item(s) that are hedged? Are the hedging categories
listed in Table A-1 (hedging mortgage servicing, hedging a mortgage
pipeline) appropriate examples? Should Table A-1 require different
information for QFCs where the position consists of hedging strategies?
Should the position-level data require specific identifiers for
portfolio hedging transactions? If so, how should split hedging be
treated?
72. The recordkeeping requirement for the reference number of any
related loan data, if applicable, in Table A-1 to the Appendix serves a
similar purpose as the requirement to identify the particular purpose
of a position. To the extent a QFC is related to a specific loan or
loans held by the covered financial company in receivership or an
affiliate, it may be beneficial to transfer or retain in the
receivership the QFC and the related loan or loans in conjunction with
each other where, in the case of a transfer, the bridge financial
company does not end up holding a QFC without also holding directly or
indirectly the related loan or loans. For example, the covered
financial company may have issued a loan along with a related interest
rate swap, and in the case of resolution, it might be beneficial to
transfer to the bridge financial company, or terminate, together the
interest rate swap and the underlying loan. To the extent a QFC
position has a related loan or loans, would it be appropriate for a
records entity to include the reference number for any related loan?
Would it be appropriate for a records entity to include the legal name
of the records entity that is lender of related loan as required in the
position-level data?
73. As specified in Tables A-1 and A-2, records entities are also
required to maintain the industry code for each counterparty by using
either the Global Industry Classification (GIC) code or the Standard
Industrial Classification (SIC) code. Each of these two codes uses four
digits to identify the primary business of an entity, and is designed
to facilitate uniformity and comparability in the collection,
presentation, and analysis of data. By having access to a GIC or SIC
code for each counterparty, the FDIC will be better positioned to
estimate the financial and operational impact of its decisions to
transfer, disaffirm or repudiate, or retain QFCs in the receivership,
and will be better able to assess the potential impact (``knock-on
effects'') that such decisions may have on the financial markets as a
whole and particularly on individual sectors of the economy. Is the use
of a GIC or SIC code appropriate? Are there alternative codes that
would better assist the FDIC?
74. Table A-4 to the Appendix requires recordkeeping in the form of
a ``yes or no'' on whether the collateral for a particular position is
segregated and a brief description of such segregation. This
information is necessary for the FDIC to decide whether to transfer
QFCs. If the FDIC as receiver decides to transfer all QFCs between the
covered financial company in receivership and a specific counterparty,
the Act requires the FDIC to transfer all property or collateral
securing such QFCs.\76\ If the collateral underlying such QFCs is not
segregated, then the FDIC may need to ``disentangle'' such collateral
if it decides to transfer the QFCs and the collateral in accordance
with the requirements of the Act or, if it does not disentangle the
collateral, it may need to transfer certain QFCs and other assets that
it would not otherwise have decided to transfer. Does this
recordkeeping requirement sufficiently capture the information the FDIC
needs? Are there any alternative approaches?
---------------------------------------------------------------------------
\76\ 12 U.S.C. 5390(c)(9)(A)(i)(IV).
---------------------------------------------------------------------------
75. Is there a different format for maintaining the records that
would improve the receiver's ability to evaluate QFC portfolios? How do
the proposed formatting requirements affect a records entity's ability
to generate the records in the time frames provided for in the Proposed
Rules? Are there any other requirements relating to formatting or
transmission of records that the Secretary should consider?
IV. Administrative Law Matters
A. Initial Regulatory Flexibility Analysis
The Regulatory Flexibility Act (the ``RFA'') (5 U.S.C. 601 et seq.)
requires an agency to consider whether the rules it proposes will have
a significant economic impact on a substantial number of small
entities. Congress enacted the RFA to address concerns related to the
effects of agency rules on small entities, and the Secretary is
sensitive to the impact the Proposed Rules may impose on small
entities. In this case, the Secretary believes that the Proposed Rules
likely would not have a ``significant economic impact on a substantial
number of small entities.'' 5 U.S.C. 605(b). The Act mandates that the
Secretary prescribe regulations requiring financial companies to
[[Page 985]]
maintain records with respect to QFCs to assist the FDIC as receiver of
a covered financial company in being able to exercise its rights under
the Act and fulfill its obligations under section 210(c)(8), (9), or
(10) of the Act. As a result, the economic impact on financial
companies, including small entities, flows directly from the Act, and
not the Proposed Rules. Comments are requested on whether the Proposed
Rules would have a significant economic impact on a substantial number
of small entities and whether the costs are the result of the Act
itself, and not the Proposed Rules.
Instead of requiring all financial companies to maintain records
with respect to QFCs, the Secretary is narrowing the scope of the
Proposed Rules to a smaller subset of financial companies. As a
threshold matter, the Secretary is proposing to exclude from the scope
of the Proposed Rules financial companies that do not meet one of the
following three criteria: (1) Are designated pursuant to section 113 of
the Act (12 U.S.C. 5323) to be a nonbank financial company that could
pose a threat to the financial stability of the United States; (2) are
designated pursuant to Section 804 of the Act (12 U.S.C. 5463) as a
financial market utility that is, or is likely to become, systemically
important; or (3) have total assets equal to or greater than $50
billion. Since the Act's enactment in 2010, eleven financial companies
have been designated by the Council under categories (1) and (2), and
the Secretary's understanding is that each of those designated
companies has revenues in excess of the Small Business Administration's
(``SBA'') revised standards for small entities, which went into effect
on July 22, 2013. Moreover, the Secretary, as Chairperson of the
Council, does not expect that any small entities will be designated by
the Council in the foreseeable future.\77\ However, the Proposed Rules
would also apply to these large financial companies' affiliated
financial companies (regardless of their size) if an affiliated
financial company otherwise qualifies as a ``records entity'' and is
not an ``exempt entity'' under the Proposed Rules.
---------------------------------------------------------------------------
\77\ See 77 FR 21637, 21650 (April 11, 2012) and 76 FR 44763,
44772 (July 27, 2011).
---------------------------------------------------------------------------
The RFA requires agencies either to provide an initial regulatory
flexibility analysis with a proposed rule or to certify that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. In accordance with section 3(a)
of the RFA, the Secretary has reviewed the Proposed Rules. While the
Secretary believes that the Proposed Rules likely would not have a
significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)), the Secretary does not have complete data at this
time to make this determination, particularly with regard to affiliated
financial companies. Therefore, an Initial Regulatory Flexibility
Analysis has been prepared in accordance with 5 U.S.C. 603.
The Secretary also requests that commenters quantify the number of
small entities, if any, that would be subject to the Proposed Rules,
describe the nature of any impact on small entities, and provide
empirical and other data to illustrate and support the number of small
entities subject to the Proposed Rules and the extent of any impact.
After reviewing the comments received during the public comment period,
the Secretary will consider whether to conduct a final regulatory
flexibility analysis.
1. Statement of the Need for, Objectives of, and Legal Basis for, the
Proposed Rules
The Secretary is proposing a regulation to implement section
210(c)(8)(H) of the Act, as required by the Act. Section 210(c)(8)(H)
provides that, if the federal primary financial regulatory agencies do
not prescribe joint final or interim final regulations requiring
financial companies to maintain records with respect to QFCs to assist
the FDIC as receiver for a covered financial company to exercise its
rights and fulfill its obligations under certain provisions of the Act
within 24 months of the enactment of the Act, the Secretary, as
Chairperson of the Council, shall prescribe, in consultation with the
FDIC, such regulations.
The Proposed Rules would require records entities to maintain
detailed information about their QFC positions and be capable of
providing this information to their PFRAs within 24 hours of request.
The Proposed Rules include, among other things, recordkeeping
requirements with respect to position-level data, counterparty-level
data, legal documentation data, and collateral-level data. These
requirements would assist the FDIC in resolving financial companies
that may be subject to orderly liquidation under Title II of the Act.
Specifically, these data are necessary to enable the FDIC as receiver
of a covered financial company in deciding whether to: (1) Transfer the
covered financial company's QFCs under section 210(c)(9) and (10) of
the Act within the narrow time window afforded by the Act; (2) retain
such QFCs within the receivership and allow a counterparty to terminate
the QFCs; (3) retain the QFCs within the receivership and disaffirm or
repudiate the QFCs; (4) exercise its rights to enforce certain QFCs of
subsidiaries and affiliates under section 210(c)(16) within the narrow
time window afforded under section 210(c)(10) of the Act; \78\ and (5)
assess the consequences of decisions to transfer, disaffirm or
repudiate, or retain QFCs, including the potential impact that such
decisions may have on the financial markets as a whole. Because of the
narrow time window by which the FDIC may decide to transfer QFCs of the
covered financial company and enforce the QFCs of the covered financial
company's subsidiaries and affiliates under section 210(c)(9), (10) and
(16) of the Act, it is necessary that financial companies that qualify
as records entities maintain the capacity to generate, on an ongoing
basis, QFC information in a common data format. Upon being appointed as
receiver under Title II of the Act, the FDIC needs to analyze such data
to facilitate the resolution of QFC portfolios. As noted earlier, the
information must be sufficient to allow the FDIC to estimate the
financial and operational impact on the covered financial company or
its affiliated financial companies of the FDIC's decision to transfer,
disaffirm or repudiate, or retain the QFCs. Additionally, it must allow
the FDIC to assess the potential impact that such decisions may have on
the financial markets as a whole.
---------------------------------------------------------------------------
\78\ See 12 U.S.C. 5390(c)(16)(A); 12 CFR 380.12(a)(2).
---------------------------------------------------------------------------
2. Small Entities Affected by the Proposed Rules
As discussed above, the Proposed Rules would only affect large
financial companies and certain of their affiliates that meet the
definition of a records entity. The Secretary proposes that the
recordkeeping requirements in the Proposed Rules be applicable to all
affiliated financial companies in a large corporate group that meet the
definition of records entity, regardless of their size, because an
exemption for small entities would significantly impair the FDIC's
right to enforce certain QFCs of affiliates of covered financial
companies under section 210(c)(16) of the Act. Such enforcement may be
necessary for the FDIC to preserve the critical operations of these
affiliated financial companies.
Based on current information and discussions with several of the
PFRAs who are familiar with financial
[[Page 986]]
company operations and have experience supervising financial companies
with QFCs portfolios, the Secretary believes that the large corporate
groups that would be subject to the Proposed Rules are likely to have
an existing centralized system for recording and reporting QFC
activities that they will continue to rely upon to perform most of the
recordkeeping requirements set forth herein. The entity within the
corporate group responsible for this centralized system will likely
operate and maintain a technology shared services model with the
majority of the technology applications, systems, and data shared by
the affiliated financial companies within the large corporate group.
Therefore, the entity responsible for this centralized system, and not
the affiliated financial companies, may be most significantly impacted
by the Proposed Rules. The affiliated financial companies may be able
to utilize the technology and network infrastructure operated and
maintained by their respective entities responsible for the centralized
recordkeeping system. Additionally, the entities responsible for
maintaining these centralized systems for each large corporate group
will likely exceed the SBA's revised size standards for small
entities.\79\ Accordingly, the Secretary believes the Proposed Rules
will not have a significant economic effect on a substantial number of
small entities. The Secretary seeks information and comment on the role
of entities responsible for the centralized recordkeeping systems and
whether such entities are small entities to which the Proposed Rules
would apply.
---------------------------------------------------------------------------
\79\ See 13 CFR 121.201.
---------------------------------------------------------------------------
3. Projected Recordkeeping, and Other Compliance Requirements
As discussed in more detail above, the Proposed Rules impose
certain recordkeeping requirements on records entities. A records
entity is required to maintain all records described in section 148.4
of the Proposed Rules in electronic form and be able to generate data
in the format set forth in the Appendix to the Proposed Rules. The
Proposed Rules include, among other things, recordkeeping requirements
with respect to position-level data, counterparty-level data, legal
documentation data, and collateral-level data. Additionally, such
records shall be capable of being transmitted electronically to the
records entity's PFRAs.
Based on discussions with several of the PFRAs who are familiar
with financial company operations and have experience supervising
financial companies with QFCs portfolios, the Secretary believes that
records entities should already be maintaining most of these QFC
records as part of their ordinary course of business. However, the
Secretary recognizes that the Proposed Rules' form and availability
requirements may impose additional costs and burdens on records
entities. To help reduce these costs and burdens, section 148.3(c) of
the Proposed Rules provides the Secretary with the ability to grant
general and specific exemptions from compliance with one or more of the
requirements of the Proposed Rules under certain circumstances. For
example, the exemption provisions set forth in the Proposed Rules are
designed to enable the rules to work in conjunction with the CFTC's,
SEC's and other regulatory recordkeeping requirements, as they would
provide the ability for the Secretary to be flexible in taking such
requirements into account. Although section 148.3(a)(1) of the Proposed
Rules specifies a standard format for recordkeeping, the Secretary,
upon receipt of recommendation from the FDIC made in consultation with
the appropriate PFRAs, could exempt records entities from this
requirement on the condition that they maintain electronic records
maintained in a swap data repository or internally in a different
format. Therefore, the format of proposed Tables A-1 through A-4 of the
Appendix should not complicate appropriate recordkeeping, so long as
the information set forth in the Appendix can be provided to the FDIC
in a manner that allows the FDIC to properly analyze and aggregate the
data. The Proposed Rules further provide the Secretary with the
authority to grant extensions of time for compliance purposes.
The Secretary seeks information and comment on any costs,
compliance requirements, or changes in operating procedures arising
from application of the Proposed Rules on small entities.
4. Identification of Duplicative, Overlapping, or Conflicting Federal
Rules
The Secretary does not believe that any Federal rules duplicate or
conflict with the Proposed Rules. The Proposed Rules may overlap with
certain CFTC and SEC recordkeeping requirements. However, the Secretary
believes the Proposed Rules are necessary to assist the FDIC as
receiver for a covered financial company in deciding whether to: (1)
Transfer the covered financial company's QFCs under section 210(c)(9)
and (10) of the Act within the narrow time window afforded by the Act;
(2) retain such QFCs within the receivership and allow a counterparty
to terminate the QFCs; (3) retain the QFCs within the receivership and
disaffirm or repudiate the QFCs; (4) exercise its rights to enforce
certain QFCs of subsidiaries and affiliates under section 210(c)(16)
within the narrow time window afforded under section 210(c)(10) of the
Act; and (5) assess the consequences of decisions to transfer,
disaffirm or repudiate, or retain QFCs, including the potential impact
that such decisions may have on the financial markets as a whole.
Additionally, the exemption provisions set forth in the Proposed Rules
are designed to enable the rules to work in conjunction with the CFTC's
and SEC's recordkeeping requirements, as they would provide the ability
for the Secretary to be flexible in taking such requirements into
account.
The Secretary seeks comment regarding any other statutes or
regulations that would duplicate, overlap, or conflict with the
Proposed Rules.
5. Significant Alternatives to the Proposed Rules
The Secretary is unaware of any appropriate alternatives to the
Proposed Rules, other than those included and discussed in the Proposed
Rules, that accomplish the stated objectives of the Proposed Rules and
that minimize any significant economic impact of the Proposed Rules on
small entities. The Secretary requests comment on whether there are
ways to reduce the burdens associated with the recordkeeping
requirements on small entities associated with the Proposed Rules.
B. Paperwork Reduction Act
The collection of information requirements in the Proposed Rules
have been submitted by the Secretary to the Office of Management and
Budget (``OMB'') for review in accordance with the Paperwork Reduction
Act of 1995 (the ``PRA''), 44 U.S.C. 3507(d). Comments on the
collection of information should be sent to the Office of Management
and Budget, Attention: Desk Officer for the Department of Treasury,
Office of Information and Regulatory Affairs, Washington, DC 20503,
with copies to the Department of Treasury at the addresses previously
specified herein. Comments on the information collection should be
submitted no later than March 9, 2015. Comments are specifically
requested concerning:
(1) Whether the proposed information collection is necessary for
the proper performance of agency functions,
[[Page 987]]
including whether the information will have practical utility;
(2) The accuracy of the estimated burden associated with the
proposed collection of information, including the validity of the
methodology and assumptions used (see below);
(3) How to enhance the quality, utility, and clarity of the
information required to be maintained;
(4) How to minimize the burden of complying with the proposed
information collection, including the application of automated
collection techniques or other forms of information technology;
(5) Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of services to maintain the information; and
(6) Estimates of (i) the number of financial companies subject to
the Proposed Rules, (ii) the number of records entities that are
parties to an open QFC or guarantee, support, or are linked to an open
QFC, and (iii) the number of affiliated financial companies that are
parties to an open QFC or guarantee, support, or are linked to an open
QFC of an affiliate.
The collection of information in the Proposed Rules is in
Sec. Sec. 148.3 and 148.4 and in Tables A-1, A-2, A-3, and A-4 of the
Appendix. The collection of information is required by section
210(c)(8)(H) of the Act, which mandates that the Secretary prescribe
regulations requiring financial companies to maintain records with
respect to QFCs to assist the FDIC as receiver for a covered financial
company in being able to exercise its rights under the Act and fulfill
its obligations under section 210(c)(8), (9) or (10) of the Act.
The Proposed Rules implement these requirements by requiring that a
records entity maintain all records specified in the Proposed Rules in
electronic form and be capable of generating and transmitting data
electronically to such records entity's PFRAs and the FDIC. The
Proposed Rules require that a records entity be capable of providing
QFC records to its PFRA within 24 hours of the request of such PFRA.
The Proposed Rules set forth various recordkeeping requirements with
respect to, among other things, position-level data, counterparty-level
data, legal documentation data (including copies of agreements
governing QFC transactions and open confirmations), collateral level
data, a list of affiliates of counterparties and of the records entity,
a list of vendors supporting QFC-related activities, risk metrics used
to monitor the QFC portfolio, and risk manager contact information for
each portfolio that includes QFCs.
The Proposed Rules also provide that a records entity may request
in writing a specific exemption from the Proposed Rules, and may also
request an extension of time with respect to compliance with the
recordkeeping requirements.
Respondents
The Secretary estimates that approximately 140 large corporate
groups, and each of their respective affiliated financial companies
that is a party to an open QFC or guarantees, supports or is linked to
an open QFC of an affiliate and is not an ``exempt entity'', will meet
the definition of records entity in section 148.2(l). This list of
large corporate groups likely includes bank holding companies, nonbank
financial companies determined pursuant to section 113 of the Act to be
an entity that could pose a threat to the financial stability of the
United States, financial market utilities designated pursuant to
Section 804 of the Act as a financial market utility that is, or is
likely to become, systemically important; broker-dealers registered
with the SEC under section 15 of the Securities and Exchange Act of
1934; investment advisers registered with the SEC under section 203 of
the Investment Advisers Act of 1940 and unregistered investment
advisers; investment companies registered with the SEC under section 8
of the Investment Company Act of 1940; insurers; real estate investment
trusts; and finance companies. The Proposed Rules would also apply to
these large corporate groups' affiliated financial companies
(regardless of their size) if an affiliated financial company otherwise
qualifies as a ``records entity'' and is not an ``exempt entity'' under
the Proposed Rules.
The Secretary estimates that these large corporate groups
collectively have 23,325 affiliated financial companies that may
qualify as records entities based on discussions and consultations with
the PFRAs who are familiar with financial company operations and have
experience supervising financial companies with QFC portfolios. Because
there is no information available to determine how many of these
affiliated financial companies are a party to an open QFC or guarantee,
support, or are linked to an open QFC of an affiliate, and thus would
qualify as records entities, the Secretary has assumed that all 23,325
affiliated financial companies would qualify as record entities. The
Secretary recognizes that, based on a number of factors, the actual
total number of respondents may differ significantly from these
estimates and requests comment on the total number of respondents.
The Secretary's initial recordkeeping, reporting, data retention,
and records generation burden estimates are based on discussions with
the PFRAs regarding their prior experience with initial burden
estimates for other recordkeeping systems. The Secretary also
considered the burden estimates in rulemakings with similar
recordkeeping and reporting requirements.\80\
---------------------------------------------------------------------------
\80\ See 76 FR 46960 (August 3, 2011); 76 FR 43851 (July 22,
2011); 77 FR 2136 (January 13, 2012); 75 FR 78162 (December 22,
2008).
---------------------------------------------------------------------------
In order to comply with the Proposed Rules, each of the large
corporate group respondents will need to set up its network
infrastructure to collect data in the required format. This will likely
impose a one-time initial burden on the large corporate group
respondents in connection with the necessary updates to their
recordkeeping systems, such as systems development or modifications.
The initial burden for each large corporate group respondent to set up
its network infrastructure will depend largely on whether the financial
companies already hold and maintain QFC data in an organized electronic
format, and if so, whether the data currently resides on entirely
different systems rather than on one centralized system. Large
corporate group respondents may need to amend internal procedures,
reprogram systems, reconfigure data tables, and implement compliance
processes. Moreover, they may need to standardize the data and create
records tables to match the format required by the Proposed Rules.
However, this initial burden is mitigated to some extent because QFC
data is likely already retained in some form by each respondent in the
ordinary course of business.
As discussed above, the Proposed Rule also applies to certain
affiliated financial companies of the large corporate group
respondents. The Proposed Rules will likely impose a one-time initial
burden on the affiliated financial companies in connection with
necessary updates to their recordkeeping systems, such as systems
development or modifications. These burdens will vary widely among
affiliated financial companies. Their initial burden will depend
largely on whether the affiliated financial companies already hold and
maintain QFC data in an organized electronic format, and if so, whether
the data currently resides on entirely different systems rather than on
one centralized system.
[[Page 988]]
The Secretary believes that the large corporate groups subject to
the Proposed Rules are likely to rely on centralized systems for their
QFC activities that will perform most of the recordkeeping requirements
set forth herein. The entity responsible for this centralized system
will likely operate and maintain a technology shared services model
with the majority of the technology applications, systems, and data
shared by the multiple affiliated financial companies within the
corporate group. Therefore, the Proposed Rules will impose the most
significant burden on the entities responsible for these centralized
systems within the large corporate group respondents, and not the
affiliated financial companies. The affiliated financial companies will
likely have a much lower burden because they can utilize the technology
and network infrastructure operated and maintained by the entity
responsible for the centralized system at their respective large
corporate group. Similarly, the Secretary believes that the affiliated
financial companies will rely on the entities responsible for the
centralized systems to perform the reporting requirements under section
148.3(c)(2) and (3).
Similarly, the Secretary believes that affiliated financial
companies will rely on large corporate group respondents to submit
requests for extensions of time, specific exemptions, or both.
Recordkeeping
Estimated Number of Respondents:
Estimated Number of large corporate groups: 140.
Estimated Number of affiliated financial companies: 23,325.
Total estimated initial recordkeeping burden:
Estimated average initial burden hours per respondent: 360 hours
for large corporate groups, 0.5 hours for affiliated financial
companies.
Estimated frequency: Annually.
Estimated total initial recordkeeping burden: 50,400 hours for
large corporate groups and 11,663 hours for affiliated financial
companies.
Total estimated annual recordkeeping burden:
Estimated average annual burden hours per respondent: 120 hours for
large corporate group, 0.5 hours for affiliated financial companies.
Estimated frequency: Annually.
Estimated total annual recordkeeping burden: 16,800 hours per year
for large corporate group respondents and 11,663 hours per year for
affiliated financial companies.
The initial and annual recordkeeping burden is imposed by the Act,
which requires that the Secretary prescribe regulations requiring
financial companies to maintain records with respect to QFCs to assist
the FDIC as receiver of a covered financial company in being able to
exercise its rights under the Act and fulfill its obligations under
section 210(c)(8), (9), or (10) of the Act.
Reporting
Estimated Number of Respondents: 140.
Total estimated annual reporting burden:
Estimated average annual burden hours per respondent: 25 hours.
Estimated frequency: Annually.
Estimated total annual reporting burden: 3,500 hours per year.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by OMB.
C. Executive Orders 12866 and 13563
It has been determined that the Proposed Rules are a significant
regulation as defined in section 3(f)(1) of Executive Order 12866, as
amended. Accordingly, the Proposed Rules have been reviewed by OMB. The
Regulatory Assessment prepared by the Secretary for the Proposed Rules
is provided below.
1. Description of the Need for the Regulatory Action
The rulemaking is required by the Dodd-Frank Act to implement the
QFC recordkeeping requirements of section 210(c)(8)(H) of the Act.
Section 210(c)(8)(H) generally provides that if the PFRAs do not
prescribe joint final or interim final regulations requiring financial
companies to maintain records with respect to QFCs within 24 months
from the date of enactment of the Act, the Chairperson of the Council
shall prescribe such regulations in consultation with the FDIC. The
Secretary, as Chairperson of the Council, is proposing the Proposed
Rules in consultation with the FDIC because the PFRAs did not prescribe
such joint final or interim final regulations. The recordkeeping
required in the Proposed Rules is necessary to assist the FDIC as
receiver to exercise its rights and fulfill its obligations under
section 210(c)(8), (9), and (10) of the Dodd-Frank Act, by enabling it
to assess the consequences (including any financial systemic risks) of
decisions to transfer, disaffirm or repudiate, or allow the termination
of, QFCs with one or more counterparties.
The recent financial crisis has demonstrated that management of QFC
positions, including steps undertaken to close out such positions, can
be an important element of a resolution strategy which, if not handled
properly, may magnify market instability. Large, interconnected
financial companies may hold very large positions in QFCs involving
numerous counterparties. A disorderly unwinding of these QFCs,
including the rapid liquidation of collateral, could cause severe
negative consequences for not only the counterparties themselves but
also U.S. financial stability.
In order for the FDIC to effectuate an orderly liquidation of a
covered financial company under Title II and thereby minimize systemic
risk, the FDIC would need to make appropriate decisions regarding
whether to transfer QFCs to a bridge financial company or other solvent
financial institution or leave QFCs in the covered financial company in
receivership. It may not be possible for the FDIC to fully analyze a
large amount of QFC information in the short time frame afforded by
Title II, unless such information is readily available to the FDIC in a
standardized format designed to enable the FDIC to conduct the analysis
in an expeditious manner.
2. Literature Review
In assessing the need for these recordkeeping requirements, we have
reviewed two categories of academic literature. As highlighted above,
one of the potential channels through which the disorderly unwinding of
these QFCs could cause severe negative consequences for both the
counterparties themselves and U.S. financial stability is through the
rapid liquidation of collateral. The disorderly failure of a financial
company with a large QFC portfolio may lead QFC counterparties to
exercise their contractual remedies and rights by closing out positions
and liquidating collateral, while also potentially increasing
uncertainty in both derivatives and asset markets. This could lead to
lower asset prices, decrease the availability of funding, and increase
the likelihood that other financial companies also are forced to
liquidate assets. To assess the potential impact of rapid liquidations,
or ``fire sales,'' we have reviewed economic studies of fire sales
among financial companies. Second, while there is limited academic
literature specifically focused on the cost of a disorderly unwinding
of a large, complex financial company's QFC portfolio, there has been
recent literature analyzing the cost of the Lehman Brothers bankruptcy
in
[[Page 989]]
2008, which may be illustrative of the potential costs.\81\
---------------------------------------------------------------------------
\81\ Lehman Brothers Holdings, Inc. (``Lehman Brothers''),
Lehman Brothers Inc. (the U.S. registered broker-dealer), and Lehman
Brothers International (Europe) (the UK registered broker-dealer)
were subject to separate liquidation proceedings.
---------------------------------------------------------------------------
a. Fire Sales Among Financial Institutions
The economic literature on financial company fire sales offers
insight on their potential internal and external impacts. While not
directly addressing QFCs, the fire sale literature can be applied to
the potential impact of the rapid liquidation of QFC collateral that
might occur in a disorderly unwinding of a large QFC portfolio.
Principles of Fire Sales Among Financial Companies. According to
the literature, a fire sale can occur when a company cannot pay its
creditors without selling assets. During a fire sale, assets sold may
be heavily discounted below their fundamental values, depending on the
market of participating buyers. If buyers are other investors in the
asset class or classes being sold (``specialists''), prices may decline
little. However, if the fire sale occurs during a financial crisis when
uncertainty is higher and many specialists, including financial
companies, may be constrained by solvency or liquidity pressures, they
may not participate in the other side of the market. As a result,
prices may fall substantially, to a level at which buyers who would
only buy the assets in question at a large discount enter the market.
Low sale prices may cause other financial companies to reduce the value
at which they hold similar assets on their books when marking to
market, which may trigger a downward spiral marked by more firms in
distress (Shleifer and Vishny, 2011).\82\ In addition, because many
financial companies rely upon short-term sources of financing, such as
repurchase agreements, the falling asset prices and heightened
uncertainty may contribute to liquidity pressures as these financing
sources withdraw funding or demand more collateral. This may force even
solvent financial companies to sell assets in order to deleverage,
decrease the size of their balance sheets, and reduce risk. This self-
reinforcing cycle can result in additional fire sales, and eventually,
precipitate or magnify a financial crisis.
---------------------------------------------------------------------------
\82\ Shleifer, A., and Vishny, R. (2011). Fire Sales in Finance
and Macroeconomics. Journal of Economic Perspectives 25: 29-48.
---------------------------------------------------------------------------
Shleifer and Vishny (2011) believe that before the September 2008
Lehman Brothers bankruptcy most specialist buyers, including most
financial companies, were active in the market, but after the Lehman
bankruptcy most of them were unwilling to buy assets, causing security
prices to plunge, and prompting fund withdrawals, collateral calls, and
self-reinforcing fire sales. This cycle of price collapses and
deleveraging increased the fragility of the financial system, and
disrupted financial intermediation. The next major section discusses
the Lehman failure in more detail.
At the time of a fire sale both seller and non-seller financial
companies may curtail their lending, thereby imposing additional social
costs associated with reduced financial intermediation. Shleifer and
Vishny (2010) \83\ use a three-period model of bank lending to
illustrate the dynamics. They show that, in normal times,
securitization can lead to higher lending volumes and earnings, but
market sentiment shocks can quickly reverse these outcomes. When banks
are highly leveraged, they may be more vulnerable to unanticipated
shocks. A severe shock can lead them to liquidate assets in fire sales,
fostering industry-wide asset price declines and weakening the banking
system. In that environment, banks may forego lending, both to meet
capital requirements and to preserve the capacity to purchase deeply
discounted assets in the future. This credit contraction may reduce
economic welfare due to a large number of potentially profitable
investments that do not receive financing. He et al. (2010) \84\ and
Ivashina and Scharfstein (2010) \85\ offer evidence that financial
companies used spare balance sheet capacity to purchase discounted
securities after the financial crisis rather than to increase lending.
Hence, foregone lending during a crisis is a potential social cost,
although we do not include it in our summary of costs associated with
the Lehman Brothers bankruptcy in the next section, since we find no
specific description of it in this context in the literature.
---------------------------------------------------------------------------
\83\ Shleifer, A. and Vishny, R. (2010). Asset Fire Sales and
Credit Easing. National Bureau of Economic Research working paper
15652.
\84\ He, Z., Khang, I.G., and Krishnamurthy, A. (2010). Balance
Sheet Adjustments During the 2008 Crisis. IMF Economic Review 58:
118-156.
\85\ Ivashina, V. and Scharfstein, D. (2010). Bank Lending
During the Financial Crisis of 2008. Journal of Financial Economics
97: 319-338.
---------------------------------------------------------------------------
Potential Effects on Lending. As predicted by the theoretical
models discussed above, empirical research shows bank lending declined
sharply during the crisis. Ivashina and Scharfstein (2010) show that in
August through December 2008, banks that depended more heavily on
short-term debt (other than insured deposits), reduced their business
lending by significantly more than banks less dependent on short-term
debt financing. At the time of the Lehman bankruptcy, the paper
identifies two channels driving this result that collectively
constituted a ``run'' on financial companies. First, short-term
creditors refused to roll over their unsecured commercial paper loans
and repo lenders increased collateral requirements, which particularly
constrained financial companies dependent on short-term credit for a
significant share of their financing. Second, borrowers substantially
increased draws on their existing credit lines ``to enhance their
liquidity and financial flexibility during the credit crisis.'' In
particular, financial companies that co-syndicated credit lines with
Lehman Brothers were more likely to experience larger credit line
drawdowns after the Lehman failure, and reduced their new lending more
than those without co-syndication relationships with Lehman. Ivashina
and Scharfstein conclude the results are consistent with a decline in
the supply of funding as a result of the run associated with the Lehman
event.
On the borrower side, Campello et al. (2010) \86\ surveyed the
chief financial officers of 1,050 nonfinancial firms in the United
States, Europe, and Asia and found that those that identified their
firms as ``financially constrained'' \87\ during the financial crisis
cut back more on capital and technology investments compared to those
that identified their firms as ``financially unconstrained.'' They also
cut marketing expenditures by significantly greater margins, and shed
far more employees (financially constrained firms planned to cut 10.9
percent of their personnel in 2009, while financially unconstrained
firms planned to shed 2.7 percent). The survey revealed that during the
crisis, 86 percent of constrained firms reported foregoing attractive
investments, compared to 44 percent of unconstrained firms. This
suggests the crisis-related decline in bank credit supply directly
contributed to the reduction in constrained firms' investments, and
imposed associated economic effects.
---------------------------------------------------------------------------
\86\ Campello, M., Graham, J., and Harvey, C. (2010). The Real
Effects of Financial Constraints: Evidence from a Financial Crisis.
Journal of Financial Economics 97: 470-487.
\87\ Derived from survey respondents' self-assessments of their
financial condition.
---------------------------------------------------------------------------
[[Page 990]]
b. Costs of Lehman Brothers Bankruptcy
Numerous researchers have provided broad estimates of the economic
costs of the 2007-09 financial crisis (see GAO (2013) \88\ for a useful
review). This section focuses more narrowly on the terminations of
derivative contracts associated with the Lehman bankruptcy to help
illustrate the potential costs of unwinding the derivatives portfolio
of a large, complex financial company under the U.S. Bankruptcy Code.
---------------------------------------------------------------------------
\88\ Government Accountability Office, Financial Regulatory
Reform: Financial Crisis Losses and Potential Impacts of the Dodd-
Frank Act, GAO-13-180 (January 16, 2013).
---------------------------------------------------------------------------
The net worth of Lehman Brothers derivative positions at the time
of bankruptcy totaled $21 billion, with 96 percent representing over-
the-counter (OTC) positions.\89\ The portfolio consisted of more than
6,000 OTC derivative contracts involving over 900,000 transactions at
the time of bankruptcy on September 15, 2008. Fleming and Sarkar's
(2014) \90\ detailed assessment of the Lehman Brothers bankruptcy finds
the overall recovery rate of all allowed unsecured claims (not limited
to QFCs) amounted to roughly 28 percent, a rate the authors describe as
low relative to both an estimated 59 percent for other financial
company failures and 40 percent for failures occurring in recessions.
---------------------------------------------------------------------------
\89\ Most derivatives were held in several subsidiaries
specializing in derivatives and related instruments. Since Lehman
had numerous subsidiaries with intermingled interests, we simplify
the discussion by describing them as if they were a single entity,
except when specificity is necessary for descriptive accuracy.
\90\ Fleming, M. and Sarkar, A. (2014). The Failure Resolution
of Lehman Brothers. Economic Policy Review 20(2). Federal Reserve
Bank of New York.
---------------------------------------------------------------------------
We use a framework that divides costs associated with derivatives
resolution into private costs and public (external) costs. Private
costs consist of direct losses to derivatives counterparties from
unrecovered claims, indirect costs to derivatives counterparties from
loss of hedged positions, costs to other Lehman Brothers creditors in
the bankruptcy proceeding due to reductions in recovery values
resulting from the termination and settlement of OTC derivatives, and
litigation and administrative expenses. While we find no literature
that assesses the public costs directly attributable to the resolution
of Lehman's derivatives portfolio, below we examine the literature
assessing the public impact of Lehman's failure more broadly.
While rigorous estimates of the value of each cost element listed
above would be ideal, in reality we are constrained by a lack of
publicly available data. Therefore, this section combines qualitative
descriptions of costs with limited quantitative information when
available, in an effort to provide insight on the costs of resolving
Lehman's QFC portfolio under the bankruptcy proceedings.
Private Derivatives Counterparty Costs: Unrecovered Claims.
Estimates of bankruptcy claim recovery rates of OTC derivative
counterparties (excluding Lehman affiliate claims) are reported in the
literature at the Lehman subsidiary level, and vary widely, ranging
from 31 percent for Lehman Brothers Special Financing (the largest
Lehman derivatives entity) to 100 percent each for Lehman Brothers OTC
Derivatives, Lehman Brothers Derivatives Products, and Lehman Brothers
Financial Products, as of March 27, 2014 (Fleming and Sarkar (2014)).
Still the authors emphasize that, ``most counterparties of Lehman's OTC
derivatives suffered substantial losses.''
Private Derivatives Counterparty Costs: Loss of Hedged Positions. A
key reason for many counterparties to acquire derivative positions is
to hedge against potential future market developments. These hedges
reduce uncertainties and serve as valuable risk management instruments.
Fleming and Sarkar (2014) suggest Lehman's abrupt bankruptcy took
counterparties by surprise, and allowed them little time to assess
their derivative positions facing Lehman, decide whether to terminate
contracts, and rehedge their positions as needed.\91\ Therefore, many
counterparties lost their hedged positions within a brief period and
were unexpectedly exposed to risks until new positions could be
established. We find no estimates of the costs of these lost hedges in
the literature.
---------------------------------------------------------------------------
\91\ Fleming and Sarkar believe the selection of the termination
date for safe harbor purposes influenced this. They write (p. 25),
``Although Lehman filed for bankruptcy protection at about 1:00 a.m.
on Monday, September 15, 2008, the termination date was set as
Friday, September 12 for derivatives subject to automatic
termination. Normally, nondefaulting derivatives counterparties of
Lehman would have attempted to hedge their positions on Monday to
mitigate expected losses on their position. However, they could not
do so since their positions were deemed to have terminated two days
earlier.''
---------------------------------------------------------------------------
Private Costs to the Entire Lehman Bankruptcy Estate: Settlement of
OTC Derivatives. Fleming and Sarkar (2014) note that the settlement of
Lehman's OTC derivatives claims may have also resulted in significant
losses to the Lehman bankruptcy estate. Derivatives valuation claims
are generally based on replacement costs and they note that due to the
large prevailing bid-ask spreads at the time of Lehman's bankruptcy
filing, replacement costs may have diverged significantly from fair
value. During the settlement process the Lehman estate received $11.85
billion in OTC derivatives receivables by January 10, 2011. It is
unclear how much in additional receivables may have been ``lost'' by
Lehman due to the termination and settlement of contracts following its
bankruptcy filing. The literature notes that the relatively abrupt
timing of the bankruptcy filing may have also influenced the magnitude
of losses. Valukas (2010) suggested that Lehman insufficiently planned
for the possibility of bankruptcy, such that management only began to
plan seriously for bankruptcy a few days before the bankruptcy filing.
A bankruptcy court document \92\ cites a ``turnaround specialist''
advising Lehman, Bryan Marsal, as telling the court-appointed examiner
that the sudden bankruptcy resulted in the loss of 70 percent of $48
billion of receivables from derivatives that could have been unwound.
Yet, the same document notes that Lehman counsel Harvey Miller did not
think the rushed filing had an adverse impact on the estate (Valukas
2010). These accounts appear anecdotal and no information is provided
on the derivation of the figures cited by Marsal.
---------------------------------------------------------------------------
\92\ Valukas, A. (2010). ``Report of the Examiner in the Chapter
11 Proceedings of Lehman Brothers Holdings Inc.'' March 11. Accessed
at: https://jenner.com/lehman/.
---------------------------------------------------------------------------
Private Costs: Litigation and Administrative. The extended duration
of the OTC derivatives settlement process included multiple court
petitions, procedure approvals, settlement mechanisms, and legal
challenges. While 81 percent of derivative contracts in claims against
Lehman were terminated by November 13, 2008, the final settlement
process moved more deliberately due to the multiple steps involved in
properly addressing the unprecedented scale and complexity of claims
within the bankruptcy process. Only 84 percent of derivatives claims
had been settled by the end of 2012. Estimates of litigation and
administrative expenses for OTC derivatives alone are not available,
but these expense categories for the full Lehman settlement process
were estimated to total $3.2 billion as of May 13, 2011 (Fleming and
Sarkar (2014)).
Public Costs: Externalities. The event study is a common method of
estimating the market impact of a particular event. Measured market
reactions to the Lehman bankruptcy are based on the institution's
failure event as a whole; they are not reactions to the QFC resolution
process alone and therefore
[[Page 991]]
overstate the impacts of these terminations. We may plausibly assume,
however, that the market reactions to the overall Lehman collapse
announcement included a component associated with potential costs of
settling their derivative contracts.\93\
---------------------------------------------------------------------------
\93\ Still, we caution that event study results may produce
``noisy'' signals. For example, attribution is problematic as the
period surrounding the Lehman collapse was a particularly active one
with nearly two dozen significant economic events in September 2008.
---------------------------------------------------------------------------
Johnson and Mamun (2012) \94\ apply an event study approach to
assess stock market reactions of a sample of 742 U.S. financial
institutions--divided into banks, savings and loans, brokers, and
primary dealers--on the date of the Lehman bankruptcy filing. While
each group of institutions showed negative abnormal returns, only the
bank (-3 percent) and primary dealer (-6 percent) coefficients were
statistically significant. The data strongly support the notion that
the event had differential impacts by type of financial institution and
abnormal returns across institution groups were jointly significantly
different from zero.
---------------------------------------------------------------------------
\94\ Johnson, M.A. and Mamun, A. (2012). The Failure of Lehman
Brothers and its Impact on Other Financial Institutions. Applied
Financial Economics 22: 375-385.
---------------------------------------------------------------------------
Dumontaux and Pop (2012) \95\ apply a similar approach to assess
stock market reactions of a sample of 382 U.S. financial companies,
using brief event windows. They report heterogeneous outcomes according
to institution size and business lines. Among the twenty large
companies \96\ (excluding Lehman Brothers), cumulative abnormal stock
price returns were highly significantly negative, ranging from -10
percent to -18 percent over five distinct event windows of up to five
days in duration. However, the effects on the full sample were not
statistically significant, indicating the immediate contagion effect
was limited to large companies. The results of both event studies
suggest the Lehman bankruptcy likely imparted immediate negative
external effects on a subset of financial companies, causing
substantial drops in their market valuations. We did not find event
studies specifically assessing market impacts on non-financial firms.
---------------------------------------------------------------------------
\95\ Dumontaux, N. and Pop, A. (2012). ``Contagion Effects in
the Aftermath of Lehman's Collapse: Measuring the Collateral
Damage.'' University of Nantes working paper 2012/27.
\96\ Large financial companies are defined as those with total
assets over $1 billion in their last audited report before the event
date.
---------------------------------------------------------------------------
Domestic Public Support: Federal Reserve Facility. The Federal
Reserve provided substantial liquidity to the markets during the 2007-
2009 period. Fleming and Sarkar (2014) consider the support to Lehman
in the first week after the bankruptcy as a critical factor in the
recovery of claims against at least part of Lehman Brothers, which
allowed it to keep operating until it was acquired by Barclays. Between
September 15 and 18, 2008, Lehman Brothers Inc. borrowed $68 billion
from the Primary Dealer Credit Facility (PDCF). Because the borrowed
funds were fully collateralized and repaid in full with interest, the
Congressional Budget Office (2010) \97\ estimated that total lending
through the PDCF involved a negligible subsidy value.
---------------------------------------------------------------------------
\97\ Congressional Budget Office. (2010). The Budgetary Impact
and Subsidy Costs of the Federal Reserve's Actions During the
Financial Crisis.
---------------------------------------------------------------------------
Global Public Costs: Externalities. The economic literature is rich
with event studies of market reactions to policy announcements designed
to alleviate the financial crisis, however, we find no studies focusing
directly on the global market impacts of the Lehman Brothers bankruptcy
as an event. We also acknowledge global spillovers as a potential
public cost, however, we find no studies focusing directly on the
global impacts of the Lehman Brothers bankruptcy as an event.
c. Conclusion
The economic literature on financial asset fire sales maintains
that such events are more systemically harmful when occurring during
industry-wide periods of distress, making mitigating these costs a
public policy concern. The Lehman Brothers bankruptcy and the resulting
QFC terminations occurred during a crisis period, and might have
imposed widespread private and public costs. We do not compare the
Lehman bankruptcy costs to the alternative of potential resolution
costs under a counterfactual case had Title II of the Dodd-Frank Act
been in effect at the time of the Lehman bankruptcy filing.
3. Baseline
The FDIC promulgated 12 CFR part 371, Recordkeeping Requirements
for Qualified Financial Contracts (``Part 371''), pursuant to section
11(e)(8)(H) of the FDIA.\98\ The FDIC's QFC recordkeeping rule applies
to insured depository institutions which are in a troubled condition,
and was promulgated to enable the FDIC as receiver to make an informed
decision as to whether to transfer or retain QFCs and also thereby
minimize the potential for market disruptions that could occur with
respect to the liquidation of QFC portfolios of insured depository
institutions. However, Part 371 does not apply to non-depository
financial companies that are eligible for resolution under Title II of
the Dodd Frank Act. The proposed recordkeeping requirements of the
Proposed Rules are based, in part, on Part 371, and have been informed
by the FDIC's experience with both large and small portfolios of QFCs
of failed insured depository institutions. However, the information
requirements of the Proposed Rules are more extensive. While Part 371
requires certain position-level data and counterparty-level data, the
Proposed Rules require certain position-level data and counterparty-
level data that are not required by Part 371. Part 371 also does not
require recordkeeping with regard to Legal Agreements or Collateral
Detail Data to the same extent as is contemplated in Tables A-3 and A-4
to the Appendix in the Proposed Rules. Similar to the Proposed Rules,
under Part 371, any insured depository institution that is subject to
the requirements must produce and maintain the required records in an
electronic format, unless the institution has fewer than twenty open
QFC positions. However, under Part 371 the records do not necessarily
need to be maintained in a standardized format, but must be maintained
in a format that is acceptable to the FDIC.
---------------------------------------------------------------------------
\98\ 12 U.S.C. 1821(e)(8)(H).
---------------------------------------------------------------------------
Based on staff-level discussions with the PFRAs who are familiar
with financial company operations and have experience supervising
financial companies with QFC portfolios, the Secretary believes that
the large corporate groups that would be subject to the Proposed Rules
should already be maintaining most or all of the QFC records required
under the Proposed Rules as part of their ordinary course of business.
In order for these large corporate groups to effectively manage their
QFC portfolios, they need to have robust recordkeeping systems in
place. For example, large corporate groups that trade derivatives out
of several distinct legal entities need to have detailed records,
including counterparty identification, position-level data, collateral
received and posted, and contractual requirements, in order to
effectively manage their portfolio, perform on contracts, and monitor
risks. However, it is unlikely that these large corporate groups are
maintaining the QFC records in the standardized format prescribed by
the Proposed Rules and as set forth in the Appendix to the Proposed
Rules.
4. Evaluation of Alternatives
The Secretary considered alternative forms of the proposed rules,
but believes that the current form is the best
[[Page 992]]
available method of achieving the regulatory objectives. The assessment
of alternatives below is organized into three subcategories: (a) Scope
of the proposed rules; (b) content of records; and (c) standardized
recordkeeping.
a. Scope of the Proposed Rules
In developing the definition of a records entity, the Secretary
took into consideration factors such as financial company size, risk,
complexity, leverage, frequency and dollar amount of QFCs, and
interconnectedness to the financial system, as well as other factors
described herein. The Secretary included the following entities within
the scope of the definition of a records entity: Financial companies
that have at least $50 billion in assets, financial companies that the
Council determines could pose a threat to U.S. financial stability, and
financial companies that the Council designates as systemically
important financial market utilities.
The Secretary believes that the $50 billion asset threshold is a
useful means for identifying entities that are of a sufficient size
that they could potentially be considered for orderly liquidation under
Title II, and therefore should be incorporated in the definition of a
records entity. A $50 billion asset threshold has been separately
established for similar purposes under the Dodd-Frank Act.\99\ In
particular, the Council applies a $50 billion threshold as an initial
evaluation tool for determining whether a nonbank financial company
could pose a threat to the financial stability of the U.S. and should
potentially be subject to enhanced prudential standards under Title I
of the Dodd-Frank Act.
---------------------------------------------------------------------------
\99\ See e.g., 12 U.S.C. 5365(a).
---------------------------------------------------------------------------
The Secretary considered alternative criteria in developing the
definition of a records entity, such as including financial companies
that have more than $10 billion in assets. This threshold, which would
have captured more financial companies that potentially might be
considered for orderly liquidation under Title II, has been used in
other regulatory requirements. For example, the Dodd-Frank Act requires
certain financial companies with more than $10 billion in total
consolidated assets to conduct annual stress tests.\100\ Additionally,
the CFTC's final rule on the end-user exemption to the clearing
requirement for swaps exempts banks, savings associations, farm credit
system institutions, and credit unions with total assets of $10 billion
or less from the definition of ``financial entity,'' making such
``smaller'' financial institutions eligible for the end-user
exception.\101\
---------------------------------------------------------------------------
\100\ 12 U.S.C. 5365(i)(2).
\101\ 17 CFR 39.6(d).
---------------------------------------------------------------------------
However, the Secretary determined that while it is possible that
financial companies with more than $10 billion and less than $50
billion in total assets potentially would be considered for orderly
liquidation under Title II, $50 billion was a more appropriate
threshold. Including all financial companies with over $10 billion in
total assets would substantially increase the number of financial
companies subject to recordkeeping requirements, many of which would
likely not be considered for orderly liquidation under Title II. A
financial company (including a bank holding company) with total assets
of $50 billion or more, is the type of financial company that
potentially would be the most likely to be considered for orderly
liquidation under Title II. The definition of records entity is thus
designed to reduce recordkeeping burdens on smaller financial companies
by only capturing those financial companies with QFC positions for
which the FDIC is most likely to be appointed as receiver.
The Secretary seeks comment on the following questions: Is the
scope of the Proposed Rules adequate? Should additional or different
criteria be used to define a records entity? If so, what criteria would
be appropriate? For example, should the rules exempt certain entities
based on the number of QFC counterparties, QFC notional amounts, or QFC
mark-to-market values as of a particular date? If so, at what levels
should such exemptions be set? Should there be any other form of de
minimis exemption from these criteria? Please provide specific
explanations of how such criteria would be applied together with an
explanation of whether such criteria would affect the FDIC's ability to
resolve a QFC portfolio.
b. Content of Records
The Secretary determined, after consulting with the FDIC, that
requiring each records entity to maintain the data included in Tables
A-1 through A-4 of the Appendix to the Proposed Rules is necessary to
assist the FDIC in being able to effectively exercise its rights under
the Act and fulfill its obligations under section 210(c)(8), (9), or
(10) of the Act. To facilitate the resolution of QFC portfolios, the
FDIC needs to analyze such data and, upon being appointed as receiver
under Title II, effectuate decisions with respect to the exercise of
such rights. The information must be sufficient to allow the FDIC to
estimate the financial and operational impact on the covered financial
company and its counterparties, or affiliated financial companies, of
the FDIC's decision to transfer, disaffirm or repudiate, or retain the
QFCs. It must also allow the FDIC to assess the potential impact that
such decisions may have on the financial markets as a whole.
The position-level data included in Table A-1 to the Appendix is
intended to enable the FDIC to evaluate a records entity's exposure to
its counterparties. The FDIC would also use these data to evaluate the
effects of the receiver's determination to transfer, disaffirm or
repudiate, or retain QFCs. In addition, position-level information
would assist the receiver or any transferee to comply with the terms of
the QFCs and reduce the likelihood of inadvertent defaults. For
example, a unique position identifier would allow for the tracking and
separation of positions maintained by the records entity.
The primary objective of proposed Table A-2 to the Appendix is to
identify exposure of the records entity to each counterparty and its
affiliates, as well as the exposure that counterparties might have to
the records entity. This information would enable the FDIC to determine
the effects of transfer or termination of QFCs with a given
counterparty and the potential risk of contagion in the financial
markets. Table A-2 would also require comprehensive collateral
information, including market value of collateral, location of
collateral, and any custodial and segregation arrangements. Collateral
excess or deficiency positions as well as collateral thresholds and
valuation discounts also would need to be maintained. This information
would enable the FDIC as receiver to evaluate counterparty
relationships and determine if the receivership would benefit from
retaining and repudiating QFCs with certain counterparties. It would
also enable the FDIC as receiver to comply with the requirements of the
Act by transferring QFC obligations together with the related
collateral.\102\ In addition, it would enable the receiver to identify
excess collateral of counterparties for possible return should the
contracts be terminated after the one business day stay.
---------------------------------------------------------------------------
\102\ 12 U.S.C. 5390(c)(9)(A)(i)(IV).
---------------------------------------------------------------------------
Table A-3 to the Appendix would require the maintenance of legal
agreement data for each QFC agreement or master agreement between each
records entity and counterparty. Because the receiver has a limited
period of time in which to evaluate QFC provisions, the availability of
the legal
[[Page 993]]
agreements in fully searchable electronic form is of utmost importance.
In particular, the identification of any support by or linkage to a
parent entity or affiliate and the identification of any transfer
restrictions and non-standard covenants would enable the FDIC as
receiver to evaluate the treatment of QFCs under such contracts in an
orderly liquidation of the records entity or its affiliated financial
company under Title II of the Act.
Table A-4 to the Appendix would require each records entity to
maintain collateral detail data both with respect to collateral
received and with respect to collateral posted on a counterparty-by-
counterparty basis. The data in this Table, together with the data in
Table A-2, would allow the FDIC to better understand the QFC portfolio
risk, and to model various QFC transfer or termination scenarios.
As indicated above, the proposed recordkeeping requirements of the
Proposed Rules are similar to the FDIC's Part 371 but the information
requirements of the Proposed Rules are more extensive. The Secretary
considered reducing recordkeeping burden by aligning the requirements
more closely with those of the FDIC's Part 371. However, the Secretary
determined, in consultation with the FDIC, that additional
recordkeeping beyond that required by Part 371 would be needed for the
FDIC to resolve a financial company with significant QFC positions
under Title II. In particular, the FDIC will need this additional
information to analyze the QFC portfolio and determine whether to
transfer, disaffirm or repudiate, or retain the QFCs during the one
business day stay and to perform the obligations under the QFCs,
including meeting collateral requirements. For example, the proposed
position-level and counterparty-level data included in Tables A-1 and
A-2 to the Appendix would require recordkeeping for inter-affiliate
transactions, which was not included in Part 371. Recordkeeping with
respect to inter-affiliate QFCs is necessary to enable the FDIC to
quickly understand all QFC linkages in a corporate group and to
evaluate the potential systemic effects of FDIC decisions. Table A-2,
the counterparty collateral data, is also more extensive than the
FDIC's Part 371 due to the inclusion of pending margin calls in the
calculation of the excess or deficiency of the counterparty's
collateral. This will assist the FDIC in meeting the obligations under
the QFCs, including certain clearing organization margin calls. The
Table A-3 legal agreements, which were not included in Part 371, are
necessary to enable the FDIC as receiver to evaluate the treatment of
QFCs under such contracts, including any support by or linkage to a
parent entity or affiliate and the identification of any transfer
restrictions and non-standard covenants. Table A-4 includes additional
collateral detail data, such as the collateral jurisdiction, the
collateral segregation status, and whether the collateral may be
subject to re-hypothecation by the counterparty. These additional data
are necessary to enable the FDIC to assess risks associated with the
collateral and improve the FDIC's ability to analyze various QFC
transfer or termination scenarios. For example, for cross-border
transactions, this information would help the FDIC evaluate the
availability of collateral in different jurisdictions and the related
close-out risks if the receiver cannot arrange for the transfer of QFC
positions under local law.
Because the information requirements of the Proposed Rules are more
extensive than Part 371, the Secretary, in consultation with the FDIC,
has also proposed to allow for a longer compliance period than the
compliance period set forth under Part 371. An insured depository
institution subject to the FDIC's Part 371 recordkeeping requirements
must comply within 60 days of notification.\103\ Under the Proposed
Rules, a financial company would be required to comply with the
recordkeeping requirements within 270 days of becoming a records
entity.
---------------------------------------------------------------------------
\103\ 12 CFR 371.1(c).
---------------------------------------------------------------------------
The Secretary seeks comment on the following questions: Are any of
the proposed recordkeeping requirements not necessary or appropriate to
assist the FDIC as receiver? Please include the rationale for why these
requirements are not necessary or appropriate. Should the determination
on whether some records are not necessary or appropriate be based on
the type of records entity? Would any of the contemplated records
(including any of the data fields in the appendix) or data result in
unnecessary burden on records entities? Are there ways to further align
the recordkeeping requirements set forth herein with the requirements
of other recordkeeping and reporting rules to reduce regulatory burden
(e.g., the respective CFTC and SEC regulations on swap and security-
based swap data recordkeeping and reporting?) If so, how should this
burden be reduced? Do the proposed recordkeeping requirements
appropriately measure and identify the size and complexity of entities
that likely qualify as records entities? Are there any additional
records or data that would assist the FDIC in its role as receiver with
respect to a covered financial company? If so, please explain the
rationale for why such additional records or data is necessary.
c. Standardized Recordkeeping
The Secretary determined that requiring records entities to have
the capacity to maintain and generate QFC records in the uniform,
standardized format set forth in the Appendix to the Proposed Rules is
necessary to assist the FDIC in being able to effectively exercise its
rights under the Act and fulfill its obligations under section
210(c)(8), (9), or (10) of the Act. Specifically, when the FDIC is
appointed as receiver of a covered financial company, the covered
financial company's QFC counterparties are prohibited from exercising
their contractual right of termination until 5 p.m. (eastern time) on
the first business day following the date of appointment. After its
appointment as receiver and prior to the close of the aforementioned 5
p.m. deadline, the FDIC has three options in managing a covered
financial company's QFC portfolio. Specifically, with respect to all of
the covered financial company's QFCs with a particular counterparty and
all its affiliates, the FDIC may: (1) Transfer the QFCs to a financial
institution, including a bridge financial company established by the
FDIC; (2) retain the QFCs within the receivership and allow the
counterparty to exercise contractual remedies to terminate the QFCs; or
(3) retain the QFCs within the receivership, disaffirm or repudiate the
QFCs, and pay compensatory damages. If the FDIC transfers the QFCs to a
financial institution, the counterparty may not terminate the QFCs
solely by reason of the covered financial company's financial condition
or insolvency or the appointment of the FDIC as receiver. If the FDIC
does not transfer the QFCs and does not repudiate such QFCs, the
counterparty may exercise contractual remedies to terminate the QFCs
and assert claims for payment from the covered financial company and
may have rights to liquidate the collateral pledged by the covered
financial company.
The Secretary considered reducing recordkeeping burdens by
requiring the maintenance of non-standardized records. After consulting
with the FDIC, the Secretary determined that this alternative may
reduce the FDIC's flexibility in managing the QFC portfolio, increase
systemic risk, and impair the FDIC's ability as receiver to manage the
assets of the covered financial company in terms of
[[Page 994]]
maximizing the value of the assets in the context of orderly
liquidation.\104\ For example, in the absence of updated and
standardized information, it is possible that QFCs could be transferred
to a bridge financial company, when leaving them in the receivership
would be a better course of action. If such QFCs were transferred to
the bridge financial company, the bridge financial company would be
required to perform the obligations under the QFCs, including meeting
collateral requirements, and, to the extent set forth in the QFCs,
would be liable for losses under the contracts.\105\ Alternatively,
QFCs could be left in the receivership, when transfer to a solvent
financial institution or a bridge financial company would be a better
course of action. In such a case, the lack of uniform data may, among
other things, prevent the FDIC from determining the value of any
collateral pledged to secure the QFCs and from considering the impact
QFC terminations may have on broader financial stability.
---------------------------------------------------------------------------
\104\ 12 U.S.C. 5390(a)(1)(B)(iv).
\105\ See FDIC article, ``The Orderly Liquidation of Lehman
Brothers Holdings Inc. under the Dodd-Frank Act'' (2011), p.8,
available at https://www.fdic.gov/regulations/reform/lehman.html.
---------------------------------------------------------------------------
However, while the Proposed Rules specify a standardized
recordkeeping format, the Secretary also recognizes the need to provide
flexibility for possible alternate recordkeeping formats if they are
sufficient to meet the needs of the FDIC. The Proposed Rules provide
the Secretary with the discretion to grant conditional or unconditional
exemptions from compliance with one or more of the requirements of the
Proposed Rules, which could include exemptions to the standardized
recordkeeping format. For example, a conditional exemption could be
granted if an alternate format, such as one used for a separate
recordkeeping requirement, would still allow the FDIC to manipulate and
analyze the data to determine the effect of FDIC decisions under Title
II with respect to a covered financial company's QFC portfolio and
enable the FDIC to fulfill its obligations under section 210(c)(8),
(9), or (10) of the Act within the narrow time window afforded by
section 210(c)(10) of the Act.
5. Affected Population
Instead of requiring all financial companies to maintain records
with respect to QFCs, the Secretary is limiting the scope of the
Proposed Rules to a smaller subset of financial companies. Discretion
to do so is afforded under section 210(c)(8)(H)(iv) of the Act, which
authorizes differentiation among financial companies by taking into
consideration, among other things, their size and risk. The Secretary
is exercising this discretion to exclude from the scope of the Proposed
Rules financial companies that do not meet one of the following three
criteria: (1) Are designated pursuant to section 113 of the Act (12
U.S.C. 5323) to be a nonbank financial company that could pose a threat
to U.S. financial stability; (2) are designated pursuant to section 804
of the Act (12 U.S.C. 5463) as a financial market utility that is, or
is likely to become, systemically important; or (3) have total assets
equal to or greater than $50 billion. Since the Act's enactment in 2010
through 2013, eleven financial companies have been designated by the
Council under categories (1) and (2), and the Secretary's understanding
is that each of those designated companies has revenues in excess of
the Small Business Administration's revised size standards for small
entities. As a result, the Proposed Rules would only apply to large
corporate groups (including a large corporate group's affiliated
financial companies, regardless of their size, if the affiliated
financial company is a party to an open QFC or guarantees, supports or
is linked to an open QFC of an affiliate and is not an ``exempt
entity'' under the Proposed Rules).
The types of financial companies that would qualify as records
entities under the Proposed Rules include: Bank holding companies,
savings and loan holding companies, broker-dealers, derivatives
clearing organizations, payment and settlement systems, and registered
clearing agencies. The Secretary proposes that the recordkeeping
requirements in the Proposed Rules apply to all affiliated financial
companies in a large corporate group that meet the definition of
records entity, regardless of their size, because a broad exemption for
small entities could significantly impair the FDIC's ability to enforce
certain QFCs of affiliates of covered financial companies under section
210(c)(16) of the Act within the narrow time window afforded by section
210(c)(10) of the Act.
6. Assessment of Potential Costs and Benefits
a. Potential Costs
Based on discussions with the PFRAs who are familiar with financial
company operations and have experience supervising financial companies
with QFC portfolios, the Secretary believes that the costs of
implementing the Proposed Rules may be mitigated by the fact that
records entities should be maintaining most of the QFC records required
by the Proposed Rules as part of their ordinary course of business.
However, the Secretary recognizes that the Proposed Rules' standardized
form and availability requirements may impose costs and burdens on
records entities. In order to comply with the Proposed Rules, each of
the approximately 140 large corporate groups that the Secretary
estimates would be subject to the recordkeeping requirements will need
to have network infrastructure to maintain data in the required format.
The Secretary expects that this will likely impose one-time initial
costs on each large corporate group in connection with necessary
updates to their recordkeeping systems, such as systems development or
modifications. The initial costs to set up network infrastructure will
depend on whether a large corporate group already holds and maintains
QFC data in an organized electronic format, and if so, whether the data
currently reside on different systems rather than on one centralized
system. Large corporate groups may need to amend internal procedures,
reprogram systems, reconfigure data tables, and implement compliance
processes. Moreover, they may need to standardize the data and create
tables to match the format required by the Proposed Rules. However, the
Secretary believes that the large corporate groups that would be
subject to the Proposed Rules are likely to rely on existing
centralized systems for recording and reporting QFC activities to
perform most of the recordkeeping and reporting requirements set forth
herein. The entity within the corporate group responsible for this
centralized system will likely operate and maintain a technology shared
services model with the majority of technology applications, systems,
and data shared by the affiliated financial companies within the large
corporate group. Therefore, the Proposed Rules will likely impose the
most significant costs on the entities responsible for the centralized
systems within the large corporate group, and not on the affiliated
financial companies. The affiliated financial companies will likely
have much lower costs because they can utilize and rely upon the
technology and network infrastructure operated and maintained by the
entity responsible for the centralized system within the large
corporate group.
It is estimated that the initial recordkeeping burden for all
records entities will be approximately 62,063 hours with a total one-
time initial cost
[[Page 995]]
of approximately $8,030,599.\106\ The total estimated annual
recordkeeping burden for all records entities will be approximately
28,463 hours with a total annual cost of approximately $2,077,799. The
estimated average hourly wage rate for recordkeepers to comply with the
initial and annual recordkeeping burden is approximately $73 per hour
based in part on the U.S. Department of Labor, Bureau of Labor
Statistics' national occupational employment statistics and wage
statistics, dated May 2012.\107\
---------------------------------------------------------------------------
\106\ This amount includes $3,500,000 in systems development/
modification costs. Specifically, based in part on staff-level
discussions with several of the PFRAs, it is expected that each of
the approximately 140 large corporate groups will incur
approximately $25,000 in systems development/modification costs,
including the purchase of computer software, with a total cost of
approximately $3,500,000. These costs will likely be borne by the
entity responsible for maintaining the centralized system within
each large corporate group. Additionally, the total estimated
initial cost for large corporate group respondents to comply with
the initial recordkeeping burden is $3,679,200, based on the
following formula: Initial burden hours multiplied by the average
hourly wage rate for recordkeepers (50,400 hours multiplied by $73/
hour). The total estimated initial cost for affiliated financial
company respondents to comply with the initial recordkeeping burden
is $851,399, based on the following formula: Initial burden hours
multiplied by the average hourly wage rate for recordkeepers (11,663
hours multiplied by $73/hour).
\107\ The $73 hourly wage rate is based on the average hourly
wage rates for senior programmers, programmer analysts, senior
system analysts, compliance managers, compliance clerks, directors
of compliance, and compliance attorneys that will conduct the
recordkeeping.
---------------------------------------------------------------------------
With regard to reporting burdens under the Proposed Rules, a
records entity may request in writing an extension of time with respect
to compliance with the recordkeeping requirements or a specific
exemption from the recordkeeping requirements. The total estimated
annual reporting burden under the Proposed Rules will be approximately
3,500 hours with a total annual cost of approximately $542,500. The
estimated average hourly rate for recordkeepers to comply with the
annual reporting burden is approximately $155 per hour based on the
U.S. Department of Labor, Bureau of Labor Statistics' national
occupational employment statistics and wage statistics, dated May
2012.\108\
---------------------------------------------------------------------------
\108\ The $155 hourly wage rate is based on the average hourly
wage rates for compliance managers, directors of compliance, and
compliance attorneys that will conduct the reporting.
---------------------------------------------------------------------------
The Secretary seeks comment on whether the cost estimates are
reasonable.
b. Potential Benefits
As noted earlier, QFCs tend to increase the interconnectedness of
the financial system and systemic risk, and the recent financial crisis
demonstrated that the management of QFC positions can be an important
element of a resolution strategy which, if not handled properly, may
magnify market instability. The recordkeeping requirements of the
Proposed Rules are designed to ensure that the FDIC, as receiver of a
covered financial company, will have comprehensive information about
the QFC portfolio of such financial company subject to orderly
resolution, and enable the FDIC to carry out the rapid and orderly
resolution of a financial company's QFC portfolio in the event of
insolvency, for example, by transferring QFCs to a bridge financial
company within the narrow time window afforded by the Act. Given the
short time frame for FDIC decisions regarding a QFC portfolio of
significant size or complexity, the Proposed Rules would require the
use of an updated and standardized format to allow the FDIC to process
the large amount of QFC information quickly. In the absence of updated
and standardized information, it is conceivable that, for example, the
FDIC could leave QFCs in the receivership when transferring to a bridge
financial company or other solvent financial institution would have
been the preferred course of action had better information been
available. Specifically, if the FDIC does not transfer the QFCs and
does not repudiate such QFCs, counterparties may terminate the QFCs and
assert claims for payment from the covered financial company and may
have rights to liquidate the collateral pledged by the covered
financial company. Because a large, interconnected financial company
can often hold very large positions in QFCs involving numerous
counterparties, the disorderly unwinding of QFCs, including the rapid
liquidation of collateral, could cause severe negative consequences for
U.S. financial stability. The FDIC as receiver may also wish to make
sure that affiliates of the covered financial company continue to
perform their QFC obligations in order to preserve the critical
operations of the covered financial company and its affiliates. In such
cases, the FDIC may need to arrange for additional liquidity, support
or collateral to the affiliates to enable them to meet collateral
obligations and generally perform their QFC obligations.
While there could be significant benefits from the Proposed Rules,
such benefits are difficult to quantify, as the Proposed Rules are only
one component of the orderly liquidation authority and the benefits of
the Proposed Rules would only be realized upon such authority being
exercised. In addition, implementation of the Dodd-Frank Act will: (1)
Subject large, interconnected financial companies to stronger
supervision, and as a result, reduce the likelihood of their failure;
and (2) blunt the impact of any such failure on U.S. financial
stability and the economy. For example, bank holding companies with
total consolidated assets of $50 billion or more and nonbank financial
companies supervised by the Board are subject to supervisory and
company-run stress tests to help the Board and the company measure the
sufficiency of capital available to support the company's operations
throughout periods of stress.\109\ These financial companies also are
or will be subject to more stringent prudential standards, including
risk-based capital and liquidity requirements, which will make their
failure less likely. However, if such a financial company does fail,
the implementation of the Dodd-Frank Act is also intended to ensure
that its failure and resolution under the Bankruptcy Code may occur
without adverse effects on U.S. financial stability. For example, each
of these large bank holding companies and nonbank financial companies
supervised by the Board will have in place resolution plans/``living
wills'' to facilitate their rapid and orderly resolution under the
Bankruptcy Code in the event of material financial distress or
failure.\110\ The Title II orderly liquidation authority will only be
used to resolve a failing financial company if its resolution under the
Bankruptcy Code would have serious adverse effects on U.S. financial
stability. In addition, there are substantial procedural safeguards to
prevent the unwarranted use of the Title II orderly liquidation
authority.
---------------------------------------------------------------------------
\109\ 12 U.S.C. 5365(i); 12 CFR part 252.
\110\ 12 U.S.C. 5365(d).
---------------------------------------------------------------------------
Nevertheless, one way to gauge the potential benefits of the
Proposed Rules is to examine the effect of the recent financial crisis
on the real economy and how the Title II orderly liquidation authority
as a whole will help reduce the probability or severity of a future
financial crisis. For example, in a 2013 Government Accountability
Office (GAO) report, GAO stated that there is some research that
suggests that U.S. output losses associated with the 2007-2009
financial crisis could range from several trillion dollars to over $10
trillion.\111\ GAO also surveyed financial
[[Page 996]]
market regulators, academics, and industry and public interest groups
who identified, inter alia, the more stringent prudential standards
discussed above and the orderly liquidation authority as not only
enhancing financial stability, at least in principle, but also helping
to reduce the probability or severity of a future crisis.\112\
---------------------------------------------------------------------------
\111\ Government Accountability Office, Financial Regulatory
Reform: Financial Crisis Losses and Potential Impacts of the Dodd-
Frank Act, GAO-13-180 at 15-16 (January 16, 2013).
\112\ Id. at 33-34. GAO added that the experts it surveyed had
differing views on these provisions but that many expect some or all
of the provisions to improve the financial system's resilience to
shocks.
---------------------------------------------------------------------------
However, as discussed above, even if the benefits of preventing
future financial crises are significant, it is difficult to quantify
what portion of such benefits would be attributable to any single
provision of the Dodd-Frank Act, let alone those benefits directly
attributable to the Proposed Rules. For example, GAO also noted that
such benefits are not assured and will depend on, among other things,
how regulators implement the provisions.\113\ In addition, the benefits
would not be attributable solely to the Proposed Rules, as a number of
other reforms are also intended to reduce the probability and severity
of future financial crises. Finally, as discussed above, the benefits
associated with the Proposed Rules would only be realized if the Title
II orderly liquidation authority is exercised and, even if utilized,
the Proposed Rules are only one component of the orderly liquidation
authority and the resulting benefits.
---------------------------------------------------------------------------
\113\ Id. at 33.
---------------------------------------------------------------------------
7. Retrospective Analysis
Executive Order 13563 also directs the Secretary to develop a plan,
consistent with law and resources and regulatory priorities, to conduct
a periodic retrospective analysis of significant regulations to
determine whether such regulations should be modified, streamlined,
expanded, or repealed so as to make the regulations more effective and
less burdensome. The Secretary expects to conduct a retrospective
analysis not later than seven years after the effective date of the
rule. This review will consider whether the recordkeeping requirements
are necessary or appropriate to assist the FDIC as receiver in being
able to exercise its rights under the Act and fulfill its obligations
under section 210(c)(8), (9), or (10) of the Dodd-Frank Act, and may
result in proposed amendments to the rule. For example, the Secretary
will review whether the data set forth in Tables A-1 through A-4 to the
Appendix are necessary or appropriate to assist the FDIC as receiver,
and/or whether maintaining additional, less, or different data is
necessary or appropriate. The Secretary seeks comment on the following
question: Is it appropriate for the Secretary to conduct the ``lookback
review'' not later than seven years after the effective date of the
rule, or would a different period be preferable?
Text of the Proposed Rules
List of Subjects in 31 CFR Part 148
Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set forth in the preamble, the Department of the
Treasury proposes to add part 148 to 31 CFR chapter I to read as
follows:
Part 148--Qualified Financial Contracts Recordkeeping Related to
the FDIC Orderly Liquidation Authority
Sec.
148.1 Scope, purpose, effective date, and compliance dates.
148.2 Definitions.
148.3 Form, availability and maintenance of records.
148.4 Content of records.
Appendix to Part 148--File Structure for Qualified Financial Contract
Records
Authority: 31 U.S.C. 321(b) and 12 U.S.C 5390(c)(8)(H).
PART 148--QUALIFIED FINANCIAL CONTRACTS RECORDKEEPING RELATED TO
THE FDIC ORDERLY LIQUIDATION AUTHORITY
Sec. 148.1 Scope, purpose, effective date, and compliance dates.
(a) Scope. This part applies to each financial company that
qualifies under the definition of ``records entity'' set forth in Sec.
148.2 of this part.
(b) Purpose. This part establishes recordkeeping requirements with
respect to qualified financial contracts for a records entity in order
to assist the Federal Deposit Insurance Corporation (``FDIC'') as
receiver for a covered financial company (as defined in 12 U.S.C.
5381(a)(8)) in being able to exercise its rights and fulfill its
obligations under 12 U.S.C. 5390(c)(8), (9), or (10).
(c) Effective date. This part shall become effective 60 days after
publication of the final rule in the Federal Register.
(d) Compliance dates--(1) Initial compliance dates. A records
entity must comply with Sec. 148.3(a)(3) on the effective date and
with all other requirements of this part within 270 days from first
becoming subject to this part. In the case of a financial company that
becomes a records entity subject to this part after the effective date,
such records entity must comply with Sec. 148.3(a)(3) within 60 days
of becoming a records entity and with all other requirements of this
part within 270 days from first becoming subject to this part.
(2) Subsequent compliance date. If a financial company ceases to be
a records entity subject to this part after the initial compliance
dates, and remains so for at least one year (calculated on a rolling
12-month basis), it is no longer required to comply with this part.
However, if at any time after the one-year period, such financial
company again becomes a records entity subject to this part, it must
comply with all of the requirements of this part no later than 90 days
after becoming subject to this part.
Sec. 148.2 Definitions.
For purposes of this part:
Affiliate means any entity that controls, is controlled by, or is
under common control with a financial company or counterparty.
Control. An ``entity controls another entity'' if it:
(1) Directly or indirectly or acting through one or more other
persons owns, controls, or has the power to vote 25 percent or more of
any class of voting securities of another entity;
(2) Controls in any manner the election of a majority of the
directors or trustees of another entity; or
(3) Must consolidate another entity for financial or regulatory
reporting purposes.
Corporate group means an entity and all affiliates of that entity.
Counterparty means any natural person or entity (or separate non-
U.S. branch of any entity) that is a party to a QFC with a records
entity, including any affiliate or any non-U.S. branch of such records
entity if such affiliate or branch is a party to a QFC with such
records entity, or is a party to a QFC that is guaranteed or supported
by a records entity.
Exempt entity means:
(1) An insured depository institution as defined in 12 U.S.C.
1813(c)(2);
(2) A subsidiary of an insured depository institution that is not a
functionally regulated subsidiary as defined in 12 U.S.C. 1844(c)(5), a
security-based swap dealer as defined in 15 U.S.C. 78c(a)(71) or a
major security-based swap participant as defined in 15 U.S.C.
78c(a)(67); or
(3) A financial company that is not a party to a QFC and controls
only exempt entities as defined in paragraphs (1) and (2) of this
definition.
[[Page 997]]
Financial company has the meaning set forth in 12 U.S.C.
5381(a)(11).
Guarantees, supports and guaranteed or supported mean to:
(1) Guarantee, indemnify, or undertake to make any loan or advance;
(2) Undertake to make capital contributions; or
(3) Be contractually obligated to provide any other financial
assistance.
Linked. A QFC is ``linked'' to a financial company if it contains a
specified financial condition clause that specifies such financial
company. A ``specified financial condition clause'' means any provision
of any QFC (whether expressly stated in the QFC or incorporated by
reference in any other contract, agreement or document) that permits a
contract counterparty to terminate, accelerate, liquidate or exercise
any other remedy under any QFC or other contract to which an affiliate
of the financial company is a party or to obtain possession or exercise
control over any property of such affiliate or affect any contractual
rights of such affiliate directly or indirectly based upon or by reason
of:
(1) A change in the financial condition or the insolvency of a
financial company;
(2) The appointment of the FDIC as receiver for the financial
company or any actions incidental thereto, including, without
limitation, the filing of a petition seeking judicial action with
respect to the appointment of the FDIC as receiver for the financial
company or the issuance of recommendations or determination of systemic
risk;
(3) The exercise of rights or powers by the FDIC as receiver for
the financial company, including, without limitation, the appointment
of the Securities Investor Protection Corporation (SIPC) as trustee in
the case of a financial company that is a covered broker or dealer and
the exercise by SIPC of its rights and powers as trustee;
(4) The transfer of assets or liabilities to a bridge financial
company or other qualified transferee;
(5) Any actions taken by the FDIC as receiver for the financial
company to effectuate the liquidation of the financial company; or
(6) Any actions taken by or on behalf of the bridge financial
company to operate and terminate the bridge financial company,
including the dissolution, conversion, merger or termination of the
bridge financial company or actions incidental or related thereto.
Without limiting the foregoing, a specified financial condition clause
includes a ``walkaway clause'' as defined in 12 U.S.C.
5390(c)(8)(F)(iii) or any regulations promulgated thereunder.
Position means the rights and obligations of a party to an
individual transaction under a QFC.
Primary financial regulatory agency means, with respect to each
financial company, each primary financial regulatory agency as
specified for such financial company in subparagraphs (A), (B), (C),
and (E) of 12 U.S.C. 5301(12).
Qualified financial contract or ``QFC'' means any qualified
financial contract defined in 12 U.S.C. 5390(c)(8)(D), including
without limitation, any ``swap'' defined in section 1a(47) of the
Commodities Exchange Act (7 U.S.C. 1a(47)) and in any rules or
regulations issued by the Commodity Futures Trading Commission (CFTC)
pursuant to such section; any ``security-based swap'' defined in
section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))
and in any rules or regulations issued by the Securities and Exchange
Commission (SEC) pursuant to such section; and any securities contract,
commodity contract, forward contract, repurchase agreement, swap
agreement, and any similar agreement that the FDIC determines by
regulation, resolution, or order to be a qualified financial contract
as provided in 12 U.S.C. 5390(c)(8)(D).
Records entity--(1) Records entity means a financial company that:
(i) Is not an exempt entity;
(ii) Is a party to an open QFC or guarantees, supports or is linked
to an open QFC; and
(iii) (A) Has been determined pursuant to 12 U.S.C. 5323 to be an
entity that could pose a threat to the financial stability of the
United States;
(B) Has been designated pursuant to 12 U.S.C. 5463 as a financial
market utility that is, or is likely to become, systemically important;
(C) Has total assets equal to or greater than $50 billion; or
(D) Is:
(1) A party to an open QFC or guarantees, supports or is linked to
an open QFC of an affiliate; and
(2) A member of a corporate group in which at least one financial
company meets the criteria under paragraphs (1)(iii)(A), (B), or (C) of
this definition.
(2) For the purpose of this definition, ``total assets'' means the
total assets reported in the most recent year-end audited consolidated
statement of financial condition of the applicable financial company
filed with its primary financial regulatory agency, or, for financial
companies not required to file such statements, the total assets shown
on the consolidated balance sheet of the financial company for the most
recent fiscal year end.
SDR means any swap data repository or security-based swap data
repository registered with the CFTC or the SEC and any other similar
data repository established to enable reporting of QFC data.
Secretary means the Secretary of the Treasury or the Secretary's
designee.
Subsidiary means any company that is controlled by another company.
Sec. 148.3 Form, availability and maintenance of records.
(a) Form and availability--(1) Electronic records. A records entity
is required to maintain all records described in section 148.4 in
electronic form and be able to generate data in the format set forth in
Tables A-1 through A-4 of the appendix to this part. Such records shall
be capable of being transmitted electronically to the records entity's
primary financial regulatory agencies and the FDIC. All affiliated
records entities in a corporate group must be able to generate data in
the format set forth in Tables A-1 through A-4 of the appendix to this
part in the same data format and use the same unique counterparty
identifiers to enable the aggregation of data both:
(i) For all affiliated records entities in the corporate group; and
(ii) By counterparty, for all records entities in a corporate
group.
(2) Position records. A records entity must maintain records for
all QFCs to which it is a party, including inter-affiliate QFCs to
which it is a party. A records entity must also maintain records for
all QFCs that are guaranteed or supported by such records entity.
(3) Point of contact. A records entity must provide to each of its
primary financial regulatory agencies and the FDIC a point of contact
at the records entity who is responsible for recordkeeping under this
part, by written notice to its primary financial regulatory agencies
and the FDIC on the effective date of this part and, thereafter, within
30 days of any change in the point-of-contact information.
(4) Access to records. A records entity that is regulated by a
primary financial regulatory agency shall be capable of providing to
such primary financial regulatory agency, within 24 hours of request,
the records specified in Sec. 148.4.
(b) Maintenance and updating--(1) Daily updating. A records entity
shall maintain the capacity to generate the data in the format set
forth in Tables A-1 through A-4 of the appendix to this part, based on
the previous end-of-day records and values. Data that are more current
than previous end-of-day
[[Page 998]]
records and values are deemed to satisfy this requirement.
(2) Records maintenance. The records required under this part may
be maintained on behalf of the records entity by any affiliate of such
records entity, or any third-party service provider that maintains the
records in the ordinary course of business.
(3) Record retention. Unless otherwise indicated in this part, the
requirement on a records entity to maintain records applies to records
and values with respect to open QFC positions and any other QFC
positions needed to generate reports based on end-of-day records and
values for at least the five business days prior to the date of a
request.
(c) Exemptions--(1) General exemptions. Upon receipt of a written
recommendation from the FDIC, prepared in consultation with the primary
financial regulatory agencies for the applicable records entities that
takes into consideration each of the factors referenced in 12 U.S.C.
5390(c)(8)(H)(iv), the Secretary may grant conditional or unconditional
exemptions from compliance with one or more of the requirements of this
part by issuing an exemption to one or more types of records entities.
In determining whether to grant a general exemption, the Secretary will
consider any factors deemed necessary or appropriate by the Secretary,
including whether application of one or more requirements of this part
is not necessary to achieve the purpose of this part.
(2) Specific exemptions. Upon written request by a records entity,
the FDIC may recommend, after taking into consideration each of the
factors referenced in 12 U.S.C. 5390(c)(8)(H)(iv), that the Secretary
grant a conditional or unconditional specific exemption from compliance
with one or more of the requirements of this part. Upon receipt of a
written recommendation from the FDIC, prepared in consultation with the
primary financial regulatory agencies for the records entity, the
Secretary may grant a conditional or unconditional specific exemption
from compliance with one or more requirements of this part by issuing
an exemption to such records entity. In determining whether to grant a
specific exemption, the Secretary will consider any factors deemed
necessary or appropriate, including whether application of one or more
requirements of this part is not necessary to achieve the purpose of
this part.
(3) Extensions of time. The Secretary, in consultation with the
FDIC, may grant one or more extensions of time for compliance with this
part. A records entity may request an extension of time by submitting a
written request to the Department of the Treasury, at least 30 days
prior to the deadline for its compliance with the requirements of this
part. The written request for an extension must contain:
(i) A statement of the reasons why the records entity cannot comply
by the deadline for compliance; and
(ii) A plan for achieving compliance during the requested extension
period.
Sec. 148.4 Content of records.
(a) All records entities. Subject to Sec. 148.3(c), a records
entity must maintain all records required under this part, including:
(1) The position-level data listed in Table A-1 in the appendix of
this part.
(2) The counterparty collateral data listed in Table A-2 in the
appendix of this part.
(3) The legal agreements information listed in Table A-3 in the
appendix of this part.
(4) The collateral detail data listed in Table A-4 in the appendix
of this part.
(5) Any written data or information that is not listed in Tables A-
1 through A-4 in the appendix to this part that the records entity is
required to provide to an SDR, the CFTC, the SEC or any non-U.S.
regulator with respect to any QFC, for any period that such data or
information is required to be maintained by its primary financial
regulatory agency.
(6)(i) For each counterparty that is not an affiliate of the
records entity, a list specifying all other counterparties that are
members of the same corporate group as the counterparty and that are
parties to open QFCs with the records entity or guarantee, support or
are linked to such QFCs, as well as an organizational chart that
explains the affiliate relationships of such counterparties. Such list
shall include the unique counterparty identifier for each counterparty
in the counterparty's corporate group. The unique counterparty
identifier shall be based on the global legal entity identifier issued
by:
(A) Utilities endorsed by the Regulatory Oversight Committee, whose
charter was set forth by the Finance Ministers and Central Bank
Governors of the Group of Twenty and the Financial Stability Board; or
(B) Utilities endorsed or otherwise governed by the Global LEI
Foundation, but must include additional identifiers in the event one
counterparty transacts with the records entity as separate non-U.S.
branches or divisions, as appropriate to enable the FDIC to aggregate
or disaggregate the data for each counterparty and for the
counterparty's corporate group as necessary to determine the effects of
potential QFC transfers or terminations, including the effects of any
ring-fencing with regard to any such non-U.S. branch or division.
(ii) All records entities in a corporate group must use the same
unique counterparty identifier for each counterparty.
(7) A list of all affiliates of the records entity that are parties
to open QFCs or guarantee, support or are linked to open QFCs, as well
as an organizational chart that explains the affiliate relationships
for such records entities. Such list shall specify which affiliates are
counterparties to inter-affiliate QFCs with such records entity for
which the records entity is required to maintain records pursuant to
this part. Such list shall include the unique counterparty identifier
for each affiliated counterparty in the records entity's corporate
group as set forth in paragraph (a)(6) of this section.
(8) Full-text searchable copies of all agreements that govern QFC
transactions between the records entity and each counterparty,
including without limitation, master agreements and annexes,
supplements, or other modifications with respect to the agreements.
(9) Copies of the active or ``open'' confirmations, if the position
has been confirmed or the trade acknowledgment if the position has not
been confirmed.
(10) Full-text searchable copies of all credit support documents
including, but not limited to, any credit support annexes, any
guarantees, keep-well agreements, or net worth maintenance agreements
that are relevant to one or more QFCs.
(11) Full-text searchable copies of all assignment or novation
documents, if applicable, including documents which confirm that all
required consents, approvals, or other conditions precedent for such
assignment or novation have been obtained or satisfied.
(12) A list of vendors directly supporting the QFC-related
activities of the records entity and the vendors' contact information.
(13) Risk metrics used to monitor the QFC portfolio, including
without limitation, credit risk, market risk and liquidity risk
measures.
(14) Risk manager contact information for each portfolio that
includes QFCs.
Appendix to Part 148--File Structure for Qualified Financial Contract
Records
In maintaining the records required under this part, a records
entity may leave an entry
[[Page 999]]
blank or insert N/A for the data fields that do not apply to a given
QFC transaction or agreement.
Table A-1--Position-Level Data
[For a records entity]
------------------------------------------------------------------------
Field Example Data application
------------------------------------------------------------------------
Unique position identifier.. 20058953............ Information needed
to readily track
and distinguish
positions.
Unique counterparty 999999999........... Information needed
identifier \1\ of records to review position-
entity. level data by
records entity.
Unique counterparty 888888888........... Information needed
identifier of counterparty to identify and, if
to records entity (non- necessary,
reporting party). communicate with
counterparty.
Legal name of counterparty John Doe & Co....... Information needed
(non-reporting party). to identify and, if
necessary,
communicate with
counterparty.
Industry code (GIC or SIC 2096................ Information needed
code) of counterparty to to analyze knock-on
records entity (non- effects by
reporting party). industry.
Internal booking location XY12Z............... Information needed
identifier (for to determine the
headquarters or branch headquarters or
where the position is branch where the
booked). position is booked,
including the
system on which the
trade is booked, as
well as the system
on which the trade
is settled.
Unique booking unit or desk xxxxxx.............. Additional
identifier. information to help
determine purpose
of position.
Unique booking unit or desk North American Additional
description. Trading Desk. information to help
determine purpose
of position.
Contact information of John Smith x-xxx-xxx- Information needed
person responsible for xxxx to maintain a point
position, including name, jsmith@domain.com. of contact with the
phone number and e-mail records entity.
address.
Unique master agreement or xxxxxx.............. Information needed
governing documentation to identify master
identifier. agreement or
governing
documentation.
Form of master agreement or ISDA 1992........... Information needed
governing documentation. to determine
whether a standard
form agreement
governs the
transaction.
Unique master netting xxxxxxxxx........... Information needed
agreement identifier. to identify, and
determine effects
of, any cross-
product and other
master netting
agreements
(sometimes called
``master master
agreements'').
Name of master netting [Agreement name].... Information needed
agreement. to identify, and
determine effects
of, any cross-
product and other
master netting
agreements.
Position standardized asset Credit; equity; Information needed
class (or QFC asset class foreign exchange; to determine the
of the reference asset or interest rate extent to which the
interest rate). (including cross- entity is involved
currency); other in any particular
commodity; QFC market.
securities
repurchase
agreement;
securities lending;
loan repurchase
agreement.
Position standardized Mortgage loan Information needed
contract type (or QFC repurchase to determine the
contract type of the agreement. extent to which the
reference asset or interest entity is involved
rate) \2\. in any particular
QFC market.
Purpose of the position (if Trading or hedging Information needed
the purpose consists of (e.g., hedging to determine the
hedging strategies, include mortgage servicing role of the QFC in
the general category of the or hedging a the records entity
item(s) hedged). mortgage pipeline). and the corporate
group's business
strategy. For
example, if the
purpose of a QFC is
to hedge a non-QFC
arrangement, the
FDIC has the
potential for a
broken-hedge
because the non-QFC
arrangement is not
subject to the
``all or none'' QFC
transfer and
repudiation rule.
Issue date.................. 6/31/2010........... Information needed
to determine the
date the entity
entered into the
agreement.
Termination date (date the 3/31/2014 Overnight Information needed
position terminates or is Open. to determine when
expected to terminate, the entity's rights
expire, mature, or when and obligations
final performance is regarding the
required). position are
expected to end.
Next call, put, or 9/30/2014........... Information needed
cancellation date. to determine when a
call, put, or
cancellation may
occur with respect
to a position.
Next payment date........... 9/30/2014........... Information needed
to anticipate
potential upcoming
obligations.
Local currency of position USD................. Information needed
(e.g. USD, GBP, EUR, JPY). to determine
currency.
Current market value of the 995,000............. Information needed
position in local currency to determine the
(as of the date of the current size of the
file). obligation/benefit
in association with
the QFC.
[[Page 1000]]
Current market value of the 995,000............. Information needed
position in USD equivalent to determine the
(as of the date of the current size of the
file). obligation/benefit
in association with
the QFC.
Notional or principal amount 1,000,000........... Information needed
of the position in local to help evaluate
currency (as applicable). the position.
Notional or principal amount 1,000,000........... Information needed
of the position in USD to help evaluate
equivalent (as applicable). the position.
Documentation status of the Affirmed, confirmed, Information needed
position. or neither affirmed to determine
nor confirmed. reliability of the
position and its
legal status.
Credit support documents Credit Support Annex Information needed
(including any security to identify and
agreement or guarantee) (If review credit
more than one, delimit each support related to
with a comma.). the position,
including any
applicable
covenants.
Name of position or Holdco.............. Information needed
agreement guarantor, if to identify entity
applicable. with potential
credit exposure.
Unique counterparty 888888888........... Information needed
identifier of guarantor. to identify the
guarantor's
exposure to swaps
of affiliates.
Reference number of xxxxxx.............. Information needed
guarantee agreement. to be able to
connect data on
Table A-1 with
Table A-2.
Unique counterparty 777777777........... Information needed
identifier of counterparty to identify
to related inter-affiliate counterparty to
position(s) with other inter-affiliate
records entity in the position that is
corporate group (If more back-to-back with,
than one, delimit each with or otherwise
a comma.). related to, this
position.
Name of counterparty to Jane Doe & Co....... Information needed
related inter-affiliate to identify
position(s) (If more than counterparty to
one, delimit each with a inter-affiliate
comma.). position that is
back-to-back with,
or otherwise
related to, this
position.
Related inter-affiliate Unique position Information needed
position ID(s). ID(s) for related to identify all
inter-affiliate related positions,
position (If more i.e., each position
than one, delimit with an affiliated
each with a comma.). records entity that
is back-to-back
with, or otherwise
relates to, this
position.
Reference number for any Unique reference Information
related loan (If more than number(s) for loans necessary to
one, delimit each with a related to this identify any
comma.). position. loan(s) within the
corporate group
that are related to
this position.
Legal name of records entity [Insert legal name Information needed
or any affiliate of the of each records to identify lender.
records entity that is entity that is
lender of related loan (If lender of related
more than one, delimit each loan].
with a comma.).
Classification under GAAP or Level 1, Level 2, Information with
IFRS. Level 3. respect to carrying
value for the
position.
------------------------------------------------------------------------
\1\ The unique counterparty identifier shall be based on the global
legal entity identifier, but must include additional identifiers in
the event one counterparty transacts with the records entity as
separate non-U.S. branches or divisions, as appropriate to enable the
FDIC to aggregate or disaggregate the data for each counterparty and
for the counterparty's corporate group as necessary to determine the
effects of potential QFC transfers or terminations, including the
effects of any ring-fencing with regard to any such non-U.S. branch or
division. All records entities in an affiliated group must use the
same unique counterparty identifier for a specific counterparty.
\2\ Position ``types'' shall be used consistently for all records
entities within the corporate group. If the OFR adopts or authorizes a
unique product identifier for a given type of position/transaction,
then within 180 days after such action, the records entity shall
substitute such identifier for ``Type of Position,'' and shall utilize
such identifier for purposes of this part for all records entities
within its corporate group.
Table A-2--Counterparty Collateral Data \1\
[For positions between a records entity and each counterparty \2\]
------------------------------------------------------------------------
Field Example Data application
------------------------------------------------------------------------
Unique counterparty 999999999........... Information needed
identifier \3\ of records to review
entity. counterpart-level
data by records
entity.
Unique counterparty 888888888........... Information needed
identifier of counterparty to aggregate
to records entity (non- positions by
reporting party). counterparty.
Legal name of counterparty.. John Doe & Co....... Information needed
to aggregate
positions by
counterparty.
Industry code (GIC or SIC 2096................ Information needed
code) of counterparty. to analyze knock-on
effects by industry
Contact information for xxxxxxxx............ Information needed
counterparty, including to maintain a point
name, phone number, and of contact with the
email address. counterparty for
the portfolio.
Master Netting Agreement for Yes................. Information needed
counterparty's corporate to determine how
group (Y/N). positions of a
records entity can
be transferred.
Name of each master ISDA Master Information needed
agreement, master netting Agreement. to identify the
agreement or governing agreement.
documentation related to
netting among affiliates in
a counterparty's corporate
group \4\ (if more than
one, list each).
[[Page 1001]]
Unique master agreement, xxxxxx.............. Internal reference
master netting agreement or number of the
governing documentation master agreement or
identifier for agreements governing
related to netting among documentation.
affiliates in a
counterparty's corporate
group (if more than one,
list each).
Current market value in USD (1,000,000)......... Information needed
equivalent of all to help evaluate
positions, as aggregated the positions.
and, to the extent
permitted under each
applicable agreement,
netted.
Current market value in USD 950,000............. Information needed
equivalent of all to determine the
collateral, if any, posted extent to which
against all positions of collateral has been
the records entity with the provided.
counterparty by collateral
provider.
Current market value in USD 950,000............. Information needed
equivalent of all to determine
collateral posted against exposure of a
all positions of the records entity or
records entity with the other collateral
counterparty that is provider(s) to the
subject to re-hypothecation creditworthiness of
by the counterparty, if a counterparty
any, by collateral provider.
Current market value in USD 50,000.............. Information needed
equivalent of all to determine the
collateral, if any, posted extent to which
against all counterparty collateral has been
positions with the records provided on behalf
entity by collateral of a counterparty.
provider.
Current market value in USD 50,000.............. Information needed
equivalent of all to determine un-
collateral posted against collateralized
all positions of the liability of
counterparty with the records entity to a
records entity that is counterparty or
subject to re-hypothecation other collateral
by the records entity, if provider(s) for re-
any, by collateral provider. hypothecated
collateral
With respect to all (25,000)............ Information needed
collateral posted against to determine the
the record entity's extent to which the
positions, collateral records entity has
excess or deficiency satisfied
(including pending margin collateral
calls in this calculation) requirements under
in USD equivalent with each applicable
respect to all of the agreement.
records entity's positions,
as determined under each
applicable agreement,
including thresholds and
haircuts where
applicable.\5\
With respect to all 150,000............. Information needed
collateral posted against to determine the
each counterparty's extent to which the
positions collateral excess counterparty has
or deficiency (including satisfied
pending margin calls in collateral
this calculation) in USD requirements under
equivalent with respect to each applicable
all of such counterparty's agreement.
positions with the records
entity, as determined under
each applicable agreement,
including thresholds and
haircuts where applicable.
With respect to all (50,000)............ Information needed
collateral posted against to determine the
the records entity's extent to which the
positions, collateral record entity's
excess or deficiency obligations
(including pending margin regarding the
calls in this calculation) positions may be
in USD equivalent with unsecured.
respect to all the
positions, based on the
aggregate market value of
the positions of a
counterparty (after netting
to the extent permitted
under each applicable
agreement) and the
aggregate market value of
all collateral posted
against the records
entity's positions, in
whole or in part.
Collateral safekeeping agent xxxxxxxx............ Information needed
contact information, to maintain a point
including name, email of contact with the
address, phone number. collateral
safekeeping agent.
For each records entity, Records entity 1, Information needed
current market value of all Records entity 2, to assess both
inter-affiliate positions Counterparty xxx, cross border
with this records entity aggregate current positions as well
(multiple entries depending market value. as transfer links.
on number of entities and
complexity of inter-company
transactions).
Risk or relationship manager xxxxxxxx............ Information needed
contact information, to maintain a point
including name, phone of contact for the
number and email address. counterparty
relationship.
Master Netting Agreement for Yes................. Information needed
records entity's corporate to determine how
group (Y/N). positions are
netted among
records entities.
[[Page 1002]]
Name of each master ISDA Master Information needed
agreement, master netting Agreement. to identify the
agreement or governing agreement.
documentation related to
netting among records
entities (if more than one,
list each).
Unique master agreement, xxxxxx.............. Internal reference
master netting agreement or number of the
governing documentation master agreement or
identifier for agreements governing
related to netting among documentation.
records entities (if more
than one, list each).
Legal name of master xxxxxx.............. Information needed
agreement guarantor, if any. to determine credit
exposure of the
guarantor.
Unique counterparty xxxxxx.............. Information needed
identifier of guarantor. to determine credit
exposure of the
guarantor.
------------------------------------------------------------------------
\1\ All amounts shall be provided in U.S. Dollar equivalent. For
collateral denominated in non-U.S. currency, the value in such non-
U.S. currency shall also be provided.
\2\ Table A-2 shall be provided at the first level of netting under a
master agreement. If a master agreement includes Annexes or other
provisions that are subject to intermediate netting, each netting set
shall be reported separately. The table shall have a separate entry
for each netting agreement that is applicable to one or more
counterparties in the counterparty corporate group. The FDIC intends
to use the data both to determine net positions between each
counterparty and a records entity and to determine the records
entity's aggregated position with respect to all affiliates in a
counterparty's corporate group based on the enforceability of the
netting agreements.
\3\ The unique counterparty identifier shall be based on the global
legal entity identifier, but must include additional identifiers in
the event one counterparty transacts with the records entity as
separate non-U.S. branches or divisions, as appropriate to enable the
FDIC to aggregate or disaggregate the data for each counterparty and
for the counterparty's corporate group as necessary to determine the
effects of potential QFC transfers or terminations, including the
effects of any ring-fencing with regard to any such non-U.S. branch or
division. All records entities in an affiliated group must use the
same unique counterparty identifier for a specific counterparty.
\4\ If one or more positions cannot be netted against others, they shall
be maintained as separate entries and each such entry shall identify
the applicable netting agreement, if any, to which it relates (if
none, specify ``none'').
\5\ If all positions are not secured by the same collateral, then
separate entries shall be maintained for each position or set of
positions secured by the same collateral and each such entry shall
identify the applicable credit support document, if any, to which it
relates (if none, specify ``none'').
Table A-3--Legal Agreements
[For each QFC agreement or master agreement between a records entity and
each counterparty]
------------------------------------------------------------------------
Field Example Data application
------------------------------------------------------------------------
Name of agreement........... ISDA Master Information needed
Agreement. to identify the
agreement.
Reference Number............ xxxxxx.............. Internal reference
number of the
master agreement or
governing
documentation.
Basic form of agreement..... [1992/2002] version. Information needed
to identify the
basic form of
agreement.
Agreement governing law..... [State/Country]..... Information needed
to determine the
law governing
contract disputes.
Cross defaults (Y/N and Y................... Information needed
description of type of Insolvency.......... to determine
cross default and identity [parent]............ exposure to
of cross-default entity). affiliates or other
entities.
Transfer restrictions (Y/N Y................... Information needed
and description of transfer Counterparty consent to determine QFC
restriction). required.. transfer
limitations per
agreement terms.
Events of Default/ Y................... Information needed
Termination Events added to Counterparty stock to determine
the basic form of agreement price declines by whether there are
(Y/N and brief description more than $xx. events of default
or excerpts of each). or termination
events that have
been added to those
provided in the
basic form of
agreement and the
likelihood of
occurrence of event
of default.
Events of Default/ Y................... Information needed
Termination Events deleted Credit event upon to determine if
from the basic form of merger.. there are any
agreement (Y/N and excerpts events of default
of each). or termination
events of the basic
form of agreement
that have been
removed.
Guarantee agreement with Y................... Information needed
respect to records entity to determine if
obligations (Y/N). there is credit
exposure because of
a guaranty.
Reference number of xxxxxxx............. Internal reference
guarantee agreement. number to enable
aggregation of
exposures to a
guarantor.
Legal name of guarantor of xxxxxxx............. Information needed
records entity obligations, to identify the
if any. guarantor.
Unique counterparty xxxxxxx............. Information needed
identifier of guarantor of to identify the
records entity obligations. guarantor.
Unique counterparty 888888888........... Information needed
identifier of counterparty to aggregate
to records entity (non- information by
reporting party). counterparty.
Legal name of Counterparty.. John Doe & Co....... Information needed
to aggregate
information by
counterparty.
Industry code (GIC or SIC 2096................ Information needed
code) of counterparty. to analyze knock-on
effects by
industry.
[[Page 1003]]
Contact information for .................... Information needed
counterparty, including to maintain a point
name, phone number, and of contact with the
email address. counterparty for
the portfolio.
Guarantee agreement with Y................... Information needed
respect to counterparty to determine if
obligation (Y/N). there is guarantor
exposure with
respect to the
counterparty.
Reference number of xxxxxxx............. Internal reference
counterparty guarantee number to enable
agreement. aggregation of
guarantor exposure.
Legal name of guarantor of xxxxxxx............. Information needed
counterparty obligations, to determine credit
if any. exposure of
guarantor for
counterparty
obligations.
Unique counterparty xxxxxxx............. Information needed
identifier of counterparty to determine credit
guarantor. exposure of
guarantor for
counterparty
obligations.
------------------------------------------------------------------------
Table A-4--Collateral Detail Data
[For a records entity with respect to each counterparty, and for each
counterparty with respect to a records entity and aggregated for such
record entity's corporate group as well as such counterparty corporate
group to the extent required or permitted by any applicable netting
agreements]
------------------------------------------------------------------------
Field Example Data application
------------------------------------------------------------------------
Unique collateral identifier CUSIPs.............. Reference required
for a collateral item. to identify
individual
collateral posted.
Local currency of collateral USD................. Information needed
item (e.g. USD, GBP, EUR, to determine the
JPY). type of collateral
Original face amount of 1,500,000........... Information needed
collateral item in local to evaluate
currency. collateral
sufficiency and
marketability.
Original face amount of 1,500,000........... Information needed
collateral item in USD to evaluate
equivalent. collateral
sufficiency and
marketability and
to assist in
aggregation across
currencies.
Current end of day market 850,000............. Information needed
value amount of collateral to evaluate
item in local currency. collateral
sufficiency and
marketability.
Current end of day market 850,000............. Information needed
value amount of collateral to evaluate
item in USD equivalent. collateral
sufficiency and
marketability and
to assist in
aggregation across
currencies.
Description of collateral U.S. Treasury Strip, Information needed
item or items. maturity 6/30/2020. to evaluate
collateral
sufficiency and
marketability.
Collateral currency......... USD................. Information needed
to determine the
type of collateral
Collateral Code,\1\ if any, xxxxx............... Information needed
of the collateral that the to identify and
records entity has posted aggregate
against all positions with collateral.
the counterparty.
Unique entity identifier of 999999999........... Information needed
collateral posting entity. to determine the
headquarters or
branch where the
position is booked.
Name of master agreement or ISDA Master Information needed
governing documentation. Agreement. to identify the
agreement.
Unique master agreement or xxxxxx.............. Internal reference
governing documentation number of the
identifier. master agreement or
governing
documentation.
Collateral or portfolio Y, segregated with Information needed
segregation status (Y/N/ third party to evaluate the
and the scope of such custodian specified extent of
segregation). below. segregation of the
specific item of
collateral or the
related collateral
portfolio.
Credit support documents Credit Support Annex Information needed
(including any security NA.................. to identify and
agreement) (If applicable, review credit
unique credit support support, including
document identifier.). any applicable
covenants.
Unique counterparty 888888888........... Information needed
identifier. to aggregate
positions by
counterparty.
Legal name of counterparty.. John Doe & Co....... Information needed
to identify
counterparty.
Collateral location......... ABC Broker-Dealer Information needed
(in safekeeping to identify
account of location of
counterparty). collateral posted.
Collateral jurisdiction..... New York, NY........ Information needed
to identify
jurisdiction of
location of
collateral posted.
Is collateral re- Yes................. Information needed
hypothecation by the to evaluate
counterparty allowed (Y/N). exposure of the
records entity to
the counterparty
for re-hypothecated
collateral.
Master (cross-product) NA.................. Information needed
netting agreement name. to determine
effects of any
cross-product and
other master
netting agreements
(sometimes referred
to as ``master
master
agreements'').
[[Page 1004]]
Master (cross-product) NA.................. Information needed
netting agreement unique to determine
identifier (If applicable, effects of any
unique master netting cross-product and
agreement identifier. If other master
not applicable, enter ``N/ netting agreements.
A'').
Classification under GAAP Level 1, Level 2, Information with
(FAS 157). Level 3. respect to carrying
value for the
position.
------------------------------------------------------------------------
\1\ CFTC collateral codes and collateral ``types'' shall be used
consistently for collateral posted by a records entity or
counterparty, as applicable. If the OFR adopts or authorizes a unique
identifier for a given type of collateral, then within 180 days after
such action, the records entity shall instead use such identifier as
the code for such collateral for purposes of this part and shall
utilize such identifier for purposes of this part for all records
entities within its corporate group. For repurchase or securities
lending agreements, separate collateral tables should be provided that
list the type, CUSIP or ISEN number of such securities.
Matthew Rutherford,
Acting Under Secretary for Domestic Finance.
[FR Doc. 2014-30734 Filed 1-6-15; 8:45 am]
BILLING CODE 4810-35-P