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FDIC Federal Register Citations

[Federal Register: October 1, 2003 (Volume 68, Number 190)]
[Proposed Rules]               
[Page 56568-56586]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc03-30]                         

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 56568]]



DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 3

[Docket No. 03-22]
RIN 1557-AC77

FEDERAL RESERVE SYSTEM

12 CFR Parts 208 and 225

[Regulations H and Y; Docket No. R-1162]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 325

RIN 3064-AC75

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 567

[No. 2003-47]
RIN 1550-AB81

 
Risk-Based Capital Guidelines; Capital Adequacy Guidelines; 
Capital Maintenance: Asset-Backed Commercial Paper Programs and Early 
Amortization Provisions

AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of 
Governors of the Federal Reserve System; Federal Deposit Insurance 
Corporation; and Office of Thrift Supervision, Treasury.

ACTION: Joint notice of proposed rulemaking.

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SUMMARY: The Office of the Comptroller of the Currency (OCC), Board of 
Governors of the Federal Reserve System (Board), Federal Deposit 
Insurance Corporation (FDIC), and Office of Thrift Supervision (OTS) 
(collectively, the agencies) are proposing to amend their risk-based 
capital standards by removing a sunset provision in order to permit 
sponsoring banks, bank holding companies, and thrifts (collectively, 
sponsoring banking organizations) to continue to exclude from their 
risk-weighted asset base those assets in asset-backed commercial paper 
(ABCP) programs that are consolidated onto sponsoring banking 
organizations' balance sheets as a result of a recently issued 
accounting interpretation, Financial Accounting Standards Board 
Interpretation No. 46, Consolidation of Variable Interest Entities (FIN 
46). The removal of the sunset provision is contingent upon the 
agencies implementing alternative, more risk-sensitive risk-based 
capital requirements for credit exposures arising from involvement with 
ABCP programs. See Section I of the SUPPLEMENTARY INFORMATION for 
discussion of a related joint interim final rule published concurrently 
with this notice of proposed rulemaking.
    The agencies also are proposing to require banking organizations to 
hold risk-based capital against liquidity facilities with an original 
maturity of one year or less that organizations provide to ABCP 
programs, regardless of whether the organization sponsors the program 
or must consolidate the program under GAAP. This treatment recognizes 
that such facilities expose banking organizations to credit risk and is 
consistent with the industry's practice of internally allocating 
economic capital against this risk associated with such facilities. A 
separate capital charge on liquidity facilities provided to an ABCP 
program would not be required if a banking organization must or chooses 
to consolidate the program for purposes of risk-based capital.
    In addition, the agencies are proposing a risk-based capital charge 
for certain types of securitizations of revolving retail credit 
facilities (for example, credit card receivables) that incorporate 
early amortization provisions. The effect of these capital proposals 
will be to more closely align the risk-based capital requirements with 
the associated risk of the exposures.
    Finally, the agencies are proposing to amend their risk-based 
capital standards by deleting tables and attachments that summarize 
risk categories, credit conversion factors, and transitional 
arrangements.

DATES: Comments on the joint notice of proposed rulemaking must be 
received by November 17, 2003.

ADDRESSES: Comments should be directed to:
    OCC: You should send comments to the Public Information Room, 
Office of the Comptroller of the Currency, Mailstop 1-5, Attention: 
Docket No. 03-22, 250 E Street, SW., Washington, DC 20219. Due to 
delays in the delivery of paper mail in the Washington area and at the 
OCC, commenters are encouraged to submit comments by fax or e-mail. 
Comments may be sent by fax to (202) 874-4448, or by e-mail to regs.comments@occ.treas.gov.
You can make an appointment to inspect and photocopy the comments by calling the Public 
Information Room at (202) 874-5043.
    Board: Comments should refer to Docket No. R-1162 and may be mailed 
to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the 
Federal Reserve System, 20th and Constitution Avenue, NW., Washington, 
DC 20551. However, because paper mail in the Washington area and at the 
Board of Governors is subject to delay, please consider submitting your comments by e-mail to 
regs.comments@federalreserve.gov, or faxing them 
to the Office of the Secretary at 202/452-3819 or 202/452-3102. Members 
of the public may inspect comments in Room MP-500 of the Martin 
Building between 9 a.m. and 5 p.m. weekdays pursuant to Sec.  261.12, 
except as provided in Sec.  261.14, of the Board's Rules Regarding 
Availability of Information, 12 CFR 261.12 and 261.14.
    FDIC: Written comments should be addressed to Robert E. Feldman, 
Executive Secretary, Attention: Comments/OES, Federal Deposit Insurance 
Corporation, 550 17th Street, NW., Washington, DC 20429. Comments may 
be hand delivered to the guard station at the rear of the 550 17th 
Street Building (located on F Street), on business days between 7 a.m. 
and 5 p.m. (Fax number: (202) 898-3838; Internet address: comments@fdic.gov). 
Comments may be inspected and photocopied in the 
FDIC Public Information Center, Room 100, 801 17th Street, NW., 
Washington, DC, between 9 a.m. and 4:30 p.m. on business days.
    OTS: Send comments to Regulation Comments, Chief Counsel's Office, 
Office of Thrift Supervision, 1700 G

[[Page 56569]]

Street, NW., Washington, DC 20552, Attention: No. 2003-47.
    Delivery: Hand deliver comments to the Guard's Desk, East Lobby 
Entrance, 1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, 
Attention: Regulation Comments, Chief Counsel's Office, Attention: No. 
2003-47.
    Facsimiles: Send facsimile transmissions to FAX Number (202) 906-
6518, Attention: No. 2003-47.    E-Mail: Send e-mails to regs.comments@ots.treas.gov, 
Attention: No. 2003-47 and include your name and telephone number. Due to temporary 
disruptions in mail service in the Washington, DC area, commenters are 
encouraged to send comments by fax or e-mail, if possible.
    Availability of comments: OTS will post comments and the related 
index on the OTS Internet Site at http://www.ots.treas.gov. In 
addition, you may inspect comments at the Public Reading Room, 1700 G 
Street, NW., by appointment. To make an appointment for access, call (202) 906-5922, send an e-mail to 
public.info@ots.treas.gov, or send a facsimile transmission to (202) 906-7755. 
(Please identify the materials you would like to inspect to assist us in serving you.) We 
schedule appointments on business days between 10 a.m. and 4 p.m. In 
most cases, appointments will be available the business day after the 
date we receive a request.

FOR FURTHER INFORMATION CONTACT:
    OCC: Amrit Sekhon, Risk Expert, Capital Policy Division, (202) 874-
5211; Mauricio Claver-Carone, Attorney, or Ron Shimabukuro, Special 
Counsel, Legislative and Regulatory Activities Division, (202) 874-
5090, Office of the Comptroller of the Currency, 250 E Street, SW., 
Washington, DC 20219.
    Board: Thomas R. Boemio, Senior Supervisory Financial Analyst, 
(202) 452-2982, David Kerns, Supervisory Financial Analyst, (202) 452-
2428, Barbara Bouchard, Assistant Director, (202) 452-3072, Division of 
Banking Supervision and Regulation; or Mark E. Van Der Weide, Counsel, 
(202) 452-2263, Legal Division. For the hearing impaired only, 
Telecommunication Device for the Deaf (TDD), (202) 263-4869.
    FDIC: Jason C. Cave, Chief, Policy Section, Capital Markets Branch, 
(202) 898-3548, Robert F. Storch, Chief Accountant, (202) 898-8906, 
Division of Supervision and Consumer Protection; Michael B. Phillips, 
Counsel, (202) 898-3581, Supervision and Legislation Branch, Legal 
Division, Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
    OTS: Michael D. Solomon, Senior Program Manager for Capital Policy, 
(202) 906-5654, David W. Riley, Project Manager, Supervision Policy, 
(202) 906-6669; or Teresa A. Scott, Counsel (Banking and Finance), 
(202) 906-6478, Office of Thrift Supervision, 1700 G Street, NW, 
Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

I. Asset-Backed Commercial Paper Programs

Background

    An asset-backed commercial paper (ABCP) program typically is a 
program through which a banking organization provides funding to its 
corporate customers by sponsoring and administering a bankruptcy-remote 
special purpose entity that purchases asset pools from, or extends 
loans to, those customers. The asset pools in an ABCP program might 
include, for example, trade receivables, consumer loans, or asset-
backed securities. The ABCP program raises cash to provide funding to 
the banking organization's customers through the issuance of commercial 
paper into the market. Typically, the sponsoring banking organization 
provides liquidity and credit enhancements to the ABCP program, which 
aid the program in obtaining high quality credit ratings that 
facilitate the issuance of the commercial paper.\1\
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    \1\ For the purposes of this proposed rule, a banking 
organization is considered the sponsor of an ABCP program if it 
establishes the program; approves the sellers permitted to 
participate in the program; approves the asset pools to be purchased 
by the programs; or administers the ABCP progam by monitoring the 
assets, arranging for debt placement, compiling monthly reports, or 
ensuring compliance with the program documents and with the 
program's credit and investment policy.
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    In January 2003, the Financial Accounting Standards Board (FASB) 
issued interpretation No. 46, ``Consolidation of Variable Interest 
Entities'' (FIN 46), requiring the consolidation of variable interest 
entities (VIEs) onto the balance sheets of companies deemed to be the 
primary beneficiaries of those entities.\2\ FIN 46 likely will result 
in the consolidation of many ABCP programs onto the balance sheets of 
banking organizations beginning in the third quarter of 2003. In 
contrast, under pre-FIN 46 accounting standards, the sponsors of ABCP 
programs normally have not been required to consolidate the assets of 
these programs. Banking organizations that are required to consolidate 
ABCP program assets will have to include all of the program assets 
(mostly receivables and securities) and liabilities (mainly commercial 
paper) on their September 30, 2003 balance sheets for purposes of the 
bank Reports of Condition and Income (Call Report), the Thrift 
Financial Report (TFR), and the bank holding company financial 
statements (FR Y-9C Report). If no changes were made to regulatory 
capital standards, the resulting increase in the asset base would lower 
both the tier 1 leverage and risk-based capital ratios of banking 
organizations that must consolidate the assets held in ABCP programs.
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    \2\ Under FIN 46, the FASB broadened the criteria for 
determining when one entity is deemed to have a controlling 
financial interest in another entity and, therefore, when an entity 
must consolidate another entity in its financial statements. An 
entity generally does not need to be analyzed under FIN 46 if it is 
designed to have ``adequate capital,'' as described in FIN 46, and 
its shareholders control the entity with their share votes and are 
allocated its profits and losses. If the entity fails these 
criteria, it typically is deemed a VIE and each stakeholder in the 
entity (a group that can include, but is not limited to, legal-form 
equity holders, creditors, sponsors, guarantors, and servicers) must 
assess whether it is the entity's ``primary beneficiary'' using the 
FIN 46 criteria. This analysis considers whether effective control 
exists by evaluating the entity's risks and rewards. In the end, the 
stakeholder who holds the majority of the entity's risks or rewards 
is the primary beneficiary and must consolidate the VIE.
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    The agencies believe that the consolidation of ABCP program assets 
could result in risk-based capital requirements that do not 
appropriately reflect the risks faced by banking organizations involved 
with these programs. In the view of the agencies, banking organizations 
generally face limited risk exposure to ABCP programs. This risk 
usually is confined to the credit enhancements and liquidity facility 
arrangements that banking organizations provide to these programs. In 
addition, operational controls and structural provisions, along with 
overcollateralization or other credit enhancements provided by the 
companies that sell assets into ABCP programs mitigate the risk to 
which sponsoring banking organizations are exposed.
    Because of the limited risks, in a related joint interim rule 
published elsewhere in today's Federal Register, the agencies amended 
their risk-based capital standards to permit sponsoring banking 
organizations to exclude ABCP program assets that must be consolidated 
by the organization under FIN 46 from risk-weighted assets for purposes 
of calculating the risk-based capital ratios through the end of the 
first quarter of 2004. The agencies also amended their risk-based 
capital rules to exclude from tier 1 and total risk-based capital any 
minority interest in sponsored ABCP programs that are

[[Page 56570]]

consolidated under FIN 46. Exclusion of minority interests associated 
with consolidated ABCP programs is appropriate when such programs' 
assets are not included in a sponsoring organization's risk-weighted 
asset base and, thus, are not assessed a risk-based capital charge. 
This interim risk-based capital treatment will expire on April 1, 2004. 
The period during which the interim rule is in effect provides the 
agencies with additional time to develop appropriate risk-based capital 
requirements for banking organizations' sponsorship and other 
involvement with ABCP programs and to receive comments from the 
industry on this proposal.
    The interim risk-based capital treatment does not alter any 
accounting requirements as established by GAAP or the manner in which 
banking organizations report consolidated on-balance sheet assets. In 
addition, the risk-based capital treatment set forth in the interim 
final rule and its proposed continuation in this joint notice of 
proposed rulemaking does not affect the denominator of the tier 1 
leverage capital ratio, which would continue to be based primarily on 
on-balance sheet assets as reported under GAAP. Thus, as a result of 
FIN 46, banking organizations must include all assets of consolidated 
ABCP programs in on-balance sheet assets for purposes of calculating 
the tier 1 leverage capital ratio.
    In contrast to most other cases where minority interests in 
consolidated subsidiaries are included as a component of tier 1 capital 
and, hence, are incorporated into the tier 1 leverage capital ratio 
calculation, minority interests related to sponsoring banking 
organizations' ABCP program assets consolidated as a result of FIN 46 
are not to be included in tier 1 capital. Thus, the reported tier 1 
leverage capital ratio for a sponsoring banking organization would 
likely be lower than it would be if only the ABCP program assets were 
consolidated. The agencies do not anticipate that the exclusion of 
minority interests related to consolidated ABCP programs assets would 
significantly affect the tier 1 leverage capital ratio of sponsoring 
banking organizations because the amount of equity in ABCP programs 
generally is small relative to the capital levels of the sponsoring 
organizations.

Proposed Risk-Based Capital Treatment for ABCP Exposures

    In this notice of proposed rulemaking, the agencies are proposing 
to amend their risk-based capital standards by removing the April 1, 
2004 sunset provision so that ABCP program assets consolidated under 
FIN 46 and any associated minority interests continue to be excluded 
from risk-weighted assets and tier 1 capital, respectively, when 
sponsoring banking organizations calculate their tier 1 and total risk-
based capital ratios. The proposed removal of the sunset provision is 
contingent upon the agencies implementing an alternative, more risk-
sensitive approach to the risk exposures arising from ABCP programs.
    Accordingly, the agencies are proposing to amend their risk-based 
capital requirements to assess more appropriate capital charges against 
the credit exposures that arise from ABCP programs, including liquidity 
facilities with an original maturity of one year or less (that is, 
short-term liquidity facilities). The agencies believe that this 
proposal would result in a capital requirement that is more 
commensurate with the credit risk to which banking organizations are 
exposed as a result of their sponsorship and other involvement with 
ABCP programs. The capital charge for short-term liquidity facilities 
that are provided to ABCP programs generally would apply even if FIN 46 
would not require the program to be consolidated.
    Liquidity facilities extended to ABCP programs are commitments to 
lend to, or purchase assets from, the programs in the event that funds 
are needed to repay maturing commercial paper. Typically, this need for 
liquidity is due to a timing mismatch between cash collections on the 
underlying assets in the program and scheduled repayments of the 
commercial paper issued by the program. Currently, liquidity facilities 
with an original maturity of over one year (that is, long-term 
liquidity facilities) are converted to an on-balance sheet credit 
equivalent amount using the 50 percent credit conversion factor. Short-
term liquidity facilities are converted to an on-balance sheet credit 
equivalent amount utilizing the zero percent credit conversion factor. 
As a result, such short-term facilities currently are not subject to a 
risk-based capital charge.
    In the agencies' view, a banking organization that provides 
liquidity facilities to ABCP programs is exposed to credit risk 
regardless of the tenure of the liquidity facilities. For example, an 
ABCP program may draw on a liquidity facility at the first sign of 
deterioration in the credit quality of an asset pool to buy out the 
assets and remove them from the program. In such an event, a draw 
exposes the banking organization providing the liquidity facility to 
credit risk. The agencies believe that the existing risk-based capital 
rules do not adequately reflect the risks associated with short-term 
liquidity facilities extended to ABCP programs.
    Although the agencies are of the view that liquidity facilities 
expose banking organizations to credit risk, the agencies also believe 
that the short tenure of commitments with an original maturity of one 
year or less exposes banking organizations to a lower degree of credit 
risk than longer tenure commitments. This difference in degree of 
credit risk exposure should be reflected in any potential capital 
requirement. The agencies, therefore, are proposing to convert short-
term liquidity facilities provided to ABCP programs to on-balance sheet 
credit equivalent amounts utilizing the 20 percent credit conversion 
factor, as opposed to the 50 percent credit conversion factor applied 
to commitments with an original maturity of greater than one year. This 
amount would then be risk-weighted according to the underlying assets 
or the obligor, after considering any collateral or guarantees, or 
external credit ratings, if applicable. For example, if a short-term 
liquidity facility provided to an ABCP program covered an asset-backed 
security (ABS) externally rated AAA, then the amount of the security 
would be converted at 20 percent to an on-balance sheet credit 
equivalent amount and assigned to the 20 percent risk category 
appropriate for AAA-rated ABS.\3\
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    \3\ See 12 CFR part 3, appendix A, Section 4(d) (OCC); 12 CFR 
parts 208 and 225, appendix A, III.B.3.c. (FRB); 12 CFR part 325, 
appendix A, II.B.5.d. (FDIC); 12 CFR 567.6(b) (OTS).
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    In many cases, a banking organization may have multiple exposures 
that may be drawn under varying circumstances within a single ABCP 
program (for example, both a credit enhancement and a liquidity 
facility). The agencies do not intend to subject a banking organization 
to duplicative risk-based capital requirements against these multiple 
exposures where they overlap and cover the same underlying asset pool. 
Rather, a banking organization must hold risk-based capital only once 
for the position covered by the overlapping exposures. Where the 
overlapping exposures are subject to different risk-based capital 
requirements, the banking organization must apply the risk-based 
capital treatment resulting in the highest capital charge to the 
overlapping portion of the exposures.
    For example, assume a banking organization provides a program-wide 
credit enhancement covering 10 percent of the underlying asset pools in 
an ABCP program and pool-specific liquidity facilities covering 100 
percent

[[Page 56571]]

of each of the underlying asset pools. The banking organization would 
be required to hold capital against 10 percent of the underlying asset 
pools because it is providing the program-wide credit enhancement. The 
banking organization also would be required to hold capital against 90 
percent of the liquidity facilities it is providing to each of the 
underlying asset pools. Moreover, if a banking organization had to 
consolidate ABCP program assets onto its balance sheet for risk-based 
capital purposes because, for example, the organization was not the 
sponsor of the program, the organization would not be required also to 
hold risk-based capital against any credit enhancements or liquidity 
facilities that cover those same program assets.
    If different banking organizations provide overlapping exposures, 
however, each organization must hold capital against the entire maximum 
amount of its exposure. As a result, while duplication of capital 
charges will not occur for individual banking organizations, it may 
occur where multiple banking organizations have overlapping exposures 
to the same ABCP program.
    The agencies also are proposing that banking organizations that are 
subject to the market risk capital rules would not be permitted to 
apply those rules to any liquidity facilities held in the trading book. 
Rather, organizations will be required to convert the notional amount 
of all liquidity facilities to ABCP programs using the appropriate 
credit conversion factor to determine the credit equivalent amount for 
liquidity facilities that are structured or characterized as 
derivatives or other trading book assets. Thus, for example, all 
liquidity facilities to ABCP programs with an original maturity of one 
year or less will be subject to a 20 percent conversion factor as 
described above, regardless of whether the exposure is carried in the 
trading account or the banking book. The agencies request comment on 
this prohibition and its implications.
    In order for a liquidity facility, either short-or long-term, 
provided to an ABCP program not to be considered a recourse obligation 
or a direct credit substitute, draws on the facility must be subject to 
a reasonable asset quality test that precludes funding assets that are 
60 days or more past due or in default. Assets that are past due 60 
days or more generally are considered ineligible for financing based 
upon standard industry practice and rating agency guidelines for trade 
receivables. The funding of assets past due 60 days or more using a 
liquidity facility exposes the institution to a greater degree of 
credit risk compared to the purchase of assets of a more current 
nature. It is the agencies' view that liquidity facilities that are 
eligible for the 20 percent or 50 percent conversion factors should not 
be used to fund assets with the higher degree of credit risk typically 
associated with seriously delinquent assets.
    In addition, if the assets a banking organization would be required 
to fund pursuant to a liquidity facility are initially externally rated 
exposures, the facility can be used to fund only those exposures that 
are externally rated investment grade at the time of funding. 
Furthermore, the liquidity facility must contain provisions that, prior 
to any draws, reduce the banking organization's funding obligation to 
cover only those assets that would meet the funding criteria under the 
facility's asset quality tests. In other words, the amount of coverage 
provided by the liquidity facility must decrease as assets that meet 
the asset quality test decrease so that the liquidity facility would 
cover only those assets satisfying the asset quality test. If the asset 
quality tests were violated, the liquidity facility would be considered 
a direct credit substitute and would be converted at 100 percent as 
opposed to 20 or 50 percent.

Additional Risk-Based Capital Considerations

    The agencies recognize that FIN 46 may affect whether consolidation 
is required of other VIE structures in addition to ABCP programs 
sponsored by banking organizations. While the current proposal would 
permit banking organizations to exclude from risk-weighted assets only 
sponsored ABCP program assets, the agencies seek comment on whether 
other structures or asset types affected by FIN 46 should be eligible 
for risk-based capital treatment similar to that proposed for banking 
organization-sponsored ABCP program assets. In addition, the agencies 
request feedback on whether banking organizations expect any 
difficulties in tracking these consolidated ABCP program assets on an 
ongoing basis. The agencies also request comment on any alternative 
regulatory capital approaches that should be considered, beyond what 
has been proposed.

II. Early Amortization Capital Charge

    The Agencies also are seeking comment on the assessment of a risk-
based capital charge against the risks associated with early 
amortization, a common feature in securitizations of revolving retail 
credit exposures (for example, credit card receivables). When assets 
are securitized, the extent to which the selling or sponsoring entity 
transfers the risks associated with the assets depends on the structure 
of the securitization and the nature of the underlying assets. The 
early amortization provision often present in securitizations of 
revolving retail credit facilities increases the likelihood that 
investors will be repaid before being subject to any risk of 
significant credit losses. For example, if a securitized asset pool 
begins to experience credit deterioration to the point where the early 
amortization provision is triggered, then the asset-backed securities 
begin to pay down rapidly. This occurs because, after an early 
amortization provision is triggered, if new receivables are generated 
from the accounts designated to the securitization trust, they are no 
longer sold to investors, but instead are retained on the sponsoring 
banking organization's balance sheet.
    Early amortization provisions raise several distinct concerns about 
the risks to selling banking organizations. First, the seller's 
interest in the securitized assets effectively is subordinated to the 
interests of the investors by the payment allocation formula applied 
during early amortization. Investors effectively get paid first, and, 
as a result, the seller's residual interest likely will absorb a 
disproportionate share of credit losses.
    Second, early amortization can create liquidity problems for 
selling organizations. For example, a credit card issuer must fund a 
steady stream of new credit card receivables when a securitization 
trust is no longer able to purchase new receivables due to early 
amortization. The selling organization must either find an alternative 
buyer for the receivables or else the receivables will accumulate on 
the seller's balance sheet, creating the need for another source of 
funding and potentially the need for additional regulatory capital.
    Third, the first two risks to the selling banking organization can 
create an incentive for the seller to provide implicit support to the 
securitization transaction--credit enhancement beyond any pre-existing 
contractual obligations--to prevent an early amortization. Incentives 
to provide implicit support are, to some extent, present in other types 
of securitizations because of concerns about damage to the selling 
organization's reputation and its ability to securitize assets going 
forward if one of its transactions performs poorly. However, the early 
amortization provision creates additional and more direct financial 
incentives to prevent early amortization through the provision of 
implicit support.

[[Page 56572]]

    This is not the first time that the agencies have addressed the 
question of whether to impose a capital charge on securitizations of 
revolving credit exposures incorporating early amortization provisions. 
On March 8, 2000, the agencies published a notice of proposed 
rulemaking on recourse and direct credit substitutes (65 FR 12320). In 
that proposal, the agencies proposed a fixed conversion factor of 20 
percent to be applied to the amount of assets under management in all 
revolving securitizations that contained early amortization features, 
in recognition of the risks associated with these structures. The 
agencies acknowledge that the March 2000 proposal was not particularly 
risk sensitive and would have required the same amount of capital for 
all securitizations of revolving credit exposures that contained early 
amortization features, regardless of the risk present in the 
securitization transaction. In a subsequent November 2001 rulemaking 
(66 FR 59614), which implemented many of the proposals in the March 
2000 proposal, the agencies reiterated their concerns with early 
amortization, indicating that the risks associated with securitization, 
including those posed by an early amortization feature, are not fully 
captured in the current capital rules.
    In the interim, the Basel Committee on Banking Supervision (BSC) 
has set forth a more risk-sensitive proposal that would assess capital 
against securitizations of revolving exposures with early amortization 
features based on key indicators of risk, such as excess spread levels. 
Virtually all securitizations of revolving retail credit facilities 
that include early amortization provisions rely on excess spread as an 
early amortization trigger. For example, early amortization generally 
commences once excess spread falls below zero for a given period of 
time. International supervisors recognize that there is a connection 
between early amortization and excess spread levels. In a separate 
rulemaking, the agencies currently are seeking comment on the proposals 
the BSC has set forth for large, internationally active banking 
organizations.\4\ The risk-based capital charge, on which comment is 
sought in this proposed rulemaking for the exposures arising from early 
amortization structures, is based on the proposal set forth by the 
Basel Supervisors Committee.\5\
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    \4\ On August 4, 2003, the agencies published an advanced notice 
of proposed rulemaking (ANPR) in the Federal Register seeking public 
comment on the implementation of the new Basel Capital Accord in the 
United States. The ANPR presents an overview of the proposed 
implementation in the United States of the advance, approaches to 
determining risk-based capital requirements for credit and 
operational risk.
    \5\ The credit conversation factors used in this proposed 
rulemaking mirror in the agencies' July 2003 Advanced Notice of 
Proposed Rulemaking for non-controlled early amortization of 
uncommitted retail credit lines.
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    The agencies believe that the risks associated with early 
amortization exist for all banking organizations that utilize 
securitizations of revolving exposures to fund their operations. 
Further, the agencies acknowledge that while early amortization events 
are infrequent, an increasing number of securitizations have been 
forced to unwind and repay investors earlier than planned. Given these 
concerns, the agencies are requesting comment on whether to impose a 
more risk-sensitive approach for assessing capital against 
securitizations of revolving retail credit exposures that incorporate 
early amortization provisions, which would apply to all banking 
organizations that use these vehicles to fund their operations.
    Such an early amortization capital charge would be applied to 
securitizations of revolving retail credit facilities that include 
early amortization provisions, which are expected predominantly to be 
credit card securitizations. Since risk-based capital already is held 
against the on-balance sheet seller's interest, such a capital charge 
would be assessed against only the off-balance sheet investors' 
interest and only in the event that the excess spread in the 
transaction has declined to a predetermined level. The proposed capital 
requirement would assess increasing amounts of risk-based capital as 
the level of excess spread approaches the early amortization trigger 
(typically, a three-month average excess spread of zero). Therefore, as 
the probability of an early amortization event increases, the capital 
charge against the off-balance sheet portion of the securitization also 
would increase.
    At this time, the agencies are only requesting comment on whether 
to assess risk-based capital against securitizations of revolving 
retail credit exposures (defined to include personal and business 
credit card accounts), even though there are some transactions that 
securitize revolving corporate exposures, such as certain 
collateralized loan obligations. The agencies are considering the 
appropriateness of applying an early amortization capital charge to 
securitizations of non-retail revolving credit exposures and request 
comment on this issue.
    The maximum risk-based capital requirement that would be assessed 
under the proposal would be equal to the greater of (i) the capital 
requirement for residual interests or (ii) the capital requirement that 
would have applied if the securitized assets were held on the 
securitizing banking organization's balance sheet. The latter capital 
charge generally is 8 percent for credit card receivables. For example, 
if a banking organization, after securitizing a credit card portfolio, 
retains a combination of an interest-only strips receivable, a spread 
account, and a subordinated tranche that equaled 12 percent of the 
transaction, then under the agencies' risk-based capital standards the 
organization would be assessed a dollar-for-dollar capital charge 
against the 12 percent of retained, subordinated securitization 
exposures, net of any associated deferred tax liabilities. In this 
example, there would be no incremental charge for early amortization 
risk. Alternatively, if the amount of the retained exposures were less 
than 8 percent, which is the risk-based capital charge for credit card 
receivables held on the balance sheet, then the charge against the 
retained securitization exposures plus any early amortization capital 
charge would be limited to 8 percent. Potentially, if the exposure were 
limited by contract, the risk-based capital requirement could be 
limited to that contractual amount under the low-level exposure rule.
    In order to determine whether a banking organization securitizing 
revolving retail credit facilities containing early amortization 
provisions must hold risk-based capital against the off-balance sheet 
portion of its securitization (that is, the investors' interest), the 
three-month average excess spread must be compared against the 
difference between (i) the point at which the securitization trust 
would be required by the securitization documents to trap excess spread 
(spread trapping point) in a spread or reserve account and (ii) the 
excess spread level at which early amortization would be triggered. 
This differential would be referred to as the excess spread 
differential (ESD). If the securitization documents do not require 
excess spread to be trapped, then for purposes of this calculation the 
spread trapping point is deemed to be 450 basis points higher than the 
early amortization trigger. If such a securitization does not employ 
the concept of excess spread as a transaction's determining factor of 
when an early amortization is triggered, then a 10 percent credit 
conversion factor is applied to the outstanding principal

[[Page 56573]]

balance of the investors' interest at the securitization's inception, 
regardless of the level of the transaction's excess spread. Once the 
difference between the spread trapping point and the early amortization 
trigger is determined, this difference must be divided into four equal 
segments.
    For example, if the spread trapping point is 4.5 percent and the 
early amortization trigger is zero, then the 450 basis point difference 
would be divided into four equal segments of 112.5 basis points. A 
credit conversion factor of zero percent would be applied to the 
outstanding principal balance of the off-balance sheet investors' 
interest if a securitization's three-month average excess spread 
equaled or exceeded the spread trapping point (4.5 percent in the 
example). Credit conversion factors of 5 percent, 10 percent, 50 
percent, and 100 percent are assigned to each segment in descending 
order beginning at the spread trapping point as the securitization 
approaches early amortization as follows:

        Example of Credit Conversion Factor Assignment by Segment
                Segment of excess spread differential Credit conversion
factor (percent)
450 bp or more  0
Less than 450 bp to 337.5 bp  5
Less than 337.5 bp to 225 bp  10
Less than 225 bp to 112.5 bp  50
Less than 112.5 bp  100
    In this example, if the three-month average excess spread is 
greater than 450 or equal to basis points, the banking organization 
would not incur a risk-based capital charge for early amortization. 
However, once the three-month average excess spread declines below 450 
basis points, a positive credit conversion factor would be applied 
against the outstanding principal balance of the off-balance sheet 
investors' interest to calculate the credit equivalent amount of assets 
that is to be risk weighted according to the asset type, typically the 
100 percent risk weight category.
    On the other hand, if the spread trapping point instead were 6 
percent and the early amortization trigger were 2 percent, then the ESD 
would be 4 percent, resulting in four equal segments of 100 basis 
points. The 5 percent credit conversion factor would be applied to the 
off-balance sheet investors' interest when the three-month average 
excess spread declined to between 6 percent and 5 percent.
    The agencies seek comment on whether to adopt such a treatment of 
securitization of revolving credit facilities containing early 
amortization mechanisms. Would such a treatment satisfactorily address 
the potential risks such transactions pose to originators? Are there 
other approaches, treatments, or factors that the agencies should 
consider? Comments also are invited on the interplay and timing between 
this proposal and the proposed capital treatment for securitization 
structures contained in the agencies' July 2003 advanced notice of 
proposed rulemaking regarding the implementation of the proposed Basel 
Capital Accord.

III. Elimination of Summary Sections of Rules Text

    The agencies also are proposing to amend their risk-based capital 
standards by deleting tables and attachments that summarize the risk 
categories, credit conversion factors, and transitional arrangements. 
These tables and attachments have become outdated and unnecessary 
because the substance of these summaries is included in the main text 
of the risk-based capital standards. Furthermore, these summary tables 
and attachments were originally provided to assist banking 
organizations unfamiliar with the new framework during the transition 
period when the agencies' risk-based capital requirements were 
initially implemented. Deleting the tables and attachments will remove 
unnecessary regulatory text.

IV. Regulatory Analysis

Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Agencies have determined that this proposed rule would not have a 
significant impact on a substantial number of small entities in 
accordance with the spirit and purposes of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The agencies believe that this proposed 
rule should not impact a substantial number of small banking 
organizations because such organizations typically do not sponsor ABCP 
programs, provide liquidity facilities to such programs, or engage in 
securitizations of revolving retail credit facilities. Accordingly, a 
regulatory flexibility analysis is not required.

Paperwork Reduction Act

    The Agencies have determined that this proposed rule does not 
involve a collection of information pursuant to the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Unfunded Mandates Reform Act of 1995

    OCC: Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. 
L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
Federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule. The OCC believes that 
exclusion of consolidated ABCP program assets from risk-weighted assets 
for risk-based capital purposes will not result in a significant impact 
for national banks because the exclusion of consolidated ABCP program 
assets is designed to offset the effect of FIN 46 on risk-based 
capital. With respect to the proposed capital treatment of liquidity 
facilities, because national banks that provide liquidity facilities to 
ABCP programs currently exceed regulatory minimum capital requirements, 
the OCC does not believe these banks will be required to raise 
additional capital. Finally, while the OCC and the other Federal 
banking agencies do not currently collect data on the excess spread 
levels for individual revolving securitizations, the OCC does not 
believe that the proposed capital charge on revolving securitizations 
will have a significant impact on the capital requirements of national 
banks because currently, most revolving securitizations are operating 
with excess spread levels above the proposed capital triggers.
    OTS: Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. 
L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
Federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule.

Plain Language

    Section 722 of the Gramm-Leach-Bliley (GLB) Act requires the 
Federal banking agencies to use ``plain language'' in all proposed and 
final rules published after January 1, 2000. In light of this 
requirement, the agencies

[[Page 56574]]

have sought to present their proposed rules in a simple and 
straightforward manner. The agencies invite comments on whether there 
are additional steps the agencies could take to make the rules easier 
to understand.

List of Subjects

12 CFR Part 3

    Administrative practice and procedure, Capital, National banks, 
Reporting and recordkeeping requirements, Risk.

12 CFR Part 208

    Accounting, Agriculture, Banks, Banking, Confidential business 
information, Crime, Currency, Federal Reserve System, Mortgages, 
Reporting and recordkeeping requirements, Securities.

12 CFR Part 225

    Administrative practice and procedure, Banks, Banking, Federal 
Reserve System, Holding companies, Reporting and recordkeeping 
requirements, Securities.

12 CFR Part 325

    Administrative practice and procedure, Bank deposit insurance, 
Banks, Banking, Capital adequacy, Reporting and recordkeeping 
requirements, Savings associations, State non-member banks.

12 CFR Part 567

    Capital, Reporting and recordkeeping requirements, Savings 
associations.

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Chapter 1

Authority and Issuance

    For the reasons set out in the joint preamble, part 3 of chapter I 
of title 12 of the Code of Federal Regulations is proposed to be 
amended as follows:

PART 3--MINIMUM CAPITAL RATIOS; ISSUANCE OF DIRECTIVES

    1. The authority citation for part 3 continues to reads as follows:

    Authority: 12 U.S.C. 93a, 161, 1818, 1828(n), 1828 note, 1831n 
note, 1835, 3907, and 3909.
    2. Appendix A to part 3 is amended as follows:
    A. In section 1, paragraphs (c)(3) and (c)(30) are republished.
    B. In section 2, paragraph (a)(3) is revised.
    C. In section 3, paragraphs (b)(2)(ii), (b)(3)(i), and (b)(4)(i) 
are revised; and new paragraph (b)(3)(ii) is added.
    D. In section 4:
    i. Paragraphs (a)(5) through (a)(16) are redesignated as paragraphs 
(a)(7) through (a)(18); newly redesignated paragraphs (a)(15) through 
(a)(18) are redesignated as paragraphs (a)(16) through (a)(19); and new 
paragraphs (a)(5), (a)(6) and (a)(15) are added.
    ii. Paragraphs (j) and (k) are revised;
    iii. New paragraphs (l) and (m) are added.
    E. In section 5, Tables 1 through 4 are removed.

Appendix A to Part 3--Risk-Based Capital Guidelines

Section 1. Purpose, Applicability of Guidelines and Definitions

* * * * *
    (c) * * *
    (3) Asset-backed commercial paper program means a program that 
issues commercial paper backed by assets or other exposures held in 
a bankruptcy-remote, special-purpose entity.
* * * * *
    (30) Sponsor means a bank that:
    (i) Establishes an asset-backed commercial paper program;
    (ii) Approves the sellers permitted to participate in an asset-
backed commercial paper program;
    (iii) Approves the asset pools to be purchased by an asset-
backed commercial paper program; or
    (iv) Administers the asset-backed commercial paper program by 
monitoring the assets, arranging for debt placement, compiling 
monthly reports, or ensuring compliance with the program documents 
and with the program's credit and investment policy.
* * * * *

Section 2. Components of Capital

* * * * *
    (a) * * *
    (3) Minority interests in the equity accounts of consolidated 
subsidiaries, except that the following are not included in Tier 1 
capital or total capital:
    (i) Minority interests in a small business investment company or 
investment fund that holds nonfinancial equity investments and 
minority interests in a subsidiary that is engaged in a nonfinancial 
activities and is held under one of the legal authorities listed in 
section 1(c)(21) of this appendix A.
    (ii) Minority interests in consolidated asset-backed commercial 
paper programs sponsored by a bank if the consolidated assets are 
excluded from risk-weighted assets pursuant to section 4(j)(1) of 
this appendix A.
* * * * *

Section 3. Risk Categories/Weights for On-Balance Sheet Assets and 
Off-Balance Sheet Items

* * * * *
    (b) * * *
    (2) * * *
    (ii) Unused portion of commitments, including home equity lines 
of credit, and eligible liquidity facilities (as defined in 
accordance with section 4(l)(2) of this appendix A) provided to 
asset-backed commercial paper programs, in form or in substance, 
with an original maturity exceeding one-year \17\; and
---------------------------------------------------------------------------

    \17\ Participations in commitments are treated in accordance 
with section 4 of this appendix A.
---------------------------------------------------------------------------

* * * * *
    (3) * * * (i) Trade-related contingencies which are short-term 
self-liquidating instruments used to finance the movement of goods 
and are collateralized by the underlying shipment (an example is a 
commercial letter of credit); and
    (ii) Unused portion of eligible liquidity facilities (as defined 
in accordance with section 4(l)(2) of this appendix A) provided to 
an asset-backed commercial paper program, in form or in substance, 
with an original maturity of one year or less.
    (4) * * * (i) Unused portion of commitments, including liquidity 
facilities not provided to asset-backed commercial paper programs, 
with an original maturity of one year or less;
* * * * *

Section 4. Recourse, Direct Credit Substitutes and Positions in 
Securitizations

* * * * *
    (a) * * *
    (5) Early amortization trigger means a contractual requirement 
that, if triggered, would cause a securitization to begin repaying 
investors prior to the originally scheduled payment dates.
    (6) Excess spread generally means gross finance charge 
collections and other income received by the trust or special 
purpose entity minus certificate interest, servicing fees, charge-
offs, and other trust or special purpose entity expenses.
* * * * *
    (15) Revolving retail credit means an exposure to an individual 
or a business where the borrower is permitted to vary both the drawn 
amount and the amount of repayment within an agreed limit under a 
line of credit (such as personal or business credit card accounts).
* * * * *
    (j) Asset-backed commercial paper programs subject to 
consolidation. (1) A bank that qualifies as a primary beneficiary 
and must consolidate an asset-backed commercial paper program as a 
variable interest entity under generally accepted accounting 
principles may exclude the consolidated asset-backed commercial 
paper program assets from risk-weighted assets if the bank is the 
sponsor of the consolidated asset-backed commercial paper program.
    (2) If a bank excludes such consolidated asset-backed commercial 
paper program assets from risk-weighted assets, the bank must assess 
the appropriate risk-based capital charge against any risk exposures 
of the bank arising in connection with such asset-backed commercial 
paper program, including direct credit substitutes, recourse 
obligations, residual interests, liquidity facilities, and loans, in 
accordance with sections 3 and 4(b) of this appendix A.

[[Page 56575]]

    (3) If a bank either elects not to exclude consolidated asset-
backed commercial paper program assets from its risk-weighted assets 
in accordance with section 4(j)(1) of this appendix A, or is not 
permitted to exclude consolidated asset-backed commercial paper 
program assets, the bank must assess a risk-based capital charge 
based on the appropriate risk weight of the consolidated asset-
backed commercial paper program assets in accordance with section 
3(a) of this appendix A. In such case, direct credit substitutes and 
recourse obligations (including residual interests), and loans that 
sponsoring banks provide to such asset-backed commercial paper 
programs are not subject to any capital charge under section 4 of 
this appendix A.
    (k) Other variable interest entities subject to consolidation. 
If a bank is required to consolidate the assets of a variable 
interest entity under generally accepted accounting principles, the 
bank must assess a risk-based capital charge based on the 
appropriate risk weight of the consolidated assets in accordance 
with section 3(a) of this appendix A. In such case, direct credit 
substitutes and recourse obligations (including residual interests), 
and loans that sponsoring banks provide to such asset-backed 
commercial paper programs are not subject to any capital charge 
under section 4 of this appendix A.
    (l) Liquidity facility provided to an asset-backed commercial 
paper program. (1) Noneligible liquidity facilities treated as 
recourse or direct credit substitute. Liquidity facilities extended 
to asset-backed commercial paper programs that do not meet the 
criteria for an eligible liquidity facility provided to an asset-
backed commercial paper program in accordance with section 4(l)(2) 
of this appendix A must be treated as recourse or as a direct credit 
substitute, and assessed the appropriate risk-based capital charge 
in accordance to section 4 of this appendix A.
    (2) Eligible liquidity facility. In order for a liquidity 
facility provided to an asset-backed commercial paper program to be 
eligible for either the 50 percent or 20 percent credit conversion 
factors under section 3(b)(2) or 3(b)(3)(ii) of this appendix A, the 
liquidity facility must satisfy the following criteria:
    (i) At the time of draw, the liquidity facility must be subject 
to a reasonable asset quality test that:
    (A) Precludes funding of assets that are 60 days or more past 
due or in default; and
    (B) If the assets that a liquidity facility is required to fund 
are externally rated securities (at the time they are transferred 
into the program), the facility must be used to fund only securities 
that are externally rated investment grade at the time of funding. 
If the assets are not externally rated at the time they are 
transferred into the program, then they are not subject to this 
investment grade requirement.
    (ii) The liquidity facility must provide that, prior to any 
draws, the bank's funding obligation is reduced to cover only those 
assets that satisfy the funding criteria under the asset quality 
test of the liquidity facility.
    (m) Early amortization. (1) Additional capital charge for 
revolving retail securitization with early amortization trigger. A 
bank that originates a securitization of revolving retail credits 
that contains early amortization triggers must risk weight the off-
balance sheet portion of such a securitization (investors' interest) 
by multiplying the outstanding principal amount of the investors' 
interest by the appropriate credit conversion factor in accordance 
with Table F in section 4(m)(3) of this appendix A, and then 
assigning the resulting credit equivalent amount to the appropriate 
risk weight category pursuant to section 3(a) of this appendix A. In 
order to determine the appropriate credit conversion factor, the 
bank must compare the most recent three-month average excess spread 
level of the securitization to the excess spread ranges in Table F 
of section 4(m)(3) of this appendix A, and apply the corresponding 
credit conversion factor.
    (2) Excess spread differential. Before the bank can apply Table 
F in section 4(m)(3) of this appendix A, the bank must calculate the 
upper and lower bounds for each excess spread range. To calculate 
the upper and lower bounds, the bank must first determine the excess 
spread differential of the securitization. The excess spread 
differential is equal to the difference between the point at which 
the bank is required by the securitization to divert and trap excess 
spread (spread trapping point) in a spread or reserve account and 
the excess spread level at which early amortization of the 
securitization is triggered (early amortization trigger). If the 
securitization does not require excess spread to be diverted to a 
spread or reserve account at a certain excess spread level, the 
spread differential is equal to 4.5 percentage points. If the 
securitization does not use excess spread as an early amortization 
trigger, then a 10 percent credit conversion factor is applied to 
the outstanding principal balance of the investors' interest at the 
securitization's inception.
    (3) Excess spread differential segments. Once the excess spread 
differential is determined, the standard excess spread differential 
value must be calculated by dividing the excess spread differential 
by 4. The upper and lower bounds for each of the excess spread 
differential segments is calculated using the spread trapping point 
and the standard excess spread differential value in accordance with 
the formulas provided in Table F of section 4(m)(3) of this appendix 
A. As provided in Table F of section 4(m)(3) of this appendix A, if 
the three-month excess spread level equals or exceeds the spread 
trapping point, the credit conversion factor is zero (resulting in 
no capital charge on the investors' interest). If the spread 
trapping point exceeds the three-month excess spread level, then the 
corresponding credit conversion factor applied to the investors' 
interest increases in steps from 5 percent to 100 percent as the 
three-month excess spread level approaches the early amortization 
trigger.

Table F.--Credit Conversion Factors for Revolving Retail Securitizations
                    with Early Amortization Triggers
                               Excess Spread Ranges Credit conversion factor (percent)
Excess spread equals or exceeds the spread trapping point     0
    Upper Bound < Spread Trapping Point             
    Lower Bound = Spread Trapping Point--(1 x SESDV)
 5
    Upper Bound < Spread Trapping Point--(1 x SESDV)            
    Lower Bound = Spread Trapping Point--(2 x SESDV)
10
    Upper Bound < Spread Trapping Point--(2 x SESDV)....             
    Lower Bound = Spread Trapping Point--(3 x SESDV)
50
    Upper Bound < Spread Trapping Point--(3 x SESDV)            
    Lower Bound = None
 100
 Note: SESDV is the standard excess spread differential value.
    (5) Limitations on risk-based capital requirements. For a bank 
subject to the early amortization requirements in section 4(m) of 
this appendix A, the total risk-based capital requirement for all of 
the bank's exposures to a securitization of revolving retail credits 
is limited to the greater of the risk-based capital requirement for 
residual interests, as defined in accordance with section 4(a)(14) 
of this appendix A, or the risk-based capital requirement for the 
underlying securitized assets calculated as if the bank continued to 
hold the assets on its balance sheet.
* * * * *
    3. Appendix B to part 3 is amended by adding a new sentence at the 
end of

[[Page 56576]]

section 2, paragraph (a) to read as follows:

Appendix B to Part 3--Risk-Based Capital Guidelines; Market Risk 
Adjustment

* * * * *

Section 2. Definitions

* * * * *
    (a) * * * Liquidity facilities provided to asset-backed 
commercial paper programs in a bank's trading account are excluded 
from covered positions, and instead, are subject to the risk-based 
capital requirements as provided in appendix A of this part.

    Dated: September 4, 2003.
John D. Hawke,
Comptroller of the Currency.

FEDERAL RESERVE SYSTEM

12 CFR Chapter II

Authority and Issuance

    For the reasons set forth in the joint preamble, the Board of 
Governors of the Federal Reserve System proposes to amend parts 208 and 
225 of chapter II of title 12 of the Code of Federal Regulations as 
follows:

PART 208--MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL 
RESERVE SYSTEM (REGULATION H)

    1. The authority citation for part 208 continues to read as 
follows:

    Authority: 12 U.S.C. 24, 36, 92a, 93a, 248(a), 248(c), 321-338a, 
371d, 461, 481-486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 1823(j), 
1828(o), 1831, 1831o, 1831p-1, 1831r-1, 1831w, 1831x, 1835a, 1882, 
2901-2907, 3105, 3310, 3331-3351, and 3906-3909; 15 U.S.C. 78b, 
78l(b), 78l(g), 78l(i), 78o-4(c)(5), 78q, 78q-1, and 78w; 31 U.S.C. 
5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106, and 4128.

    2. In Appendix A to part 208, the following amendments are 
proposed:
    a. Section II.A.1.c. is revised.
    b. In section III.B.3--
    i. Paragraph a., Definitions, is revised.
    ii. Paragraph g., Limitations on risk-based capital requirements, 
is redesignated as paragraph h.
    iii. A new paragraph g., Early amortization triggers, is added.
    iv. A new paragraph iv., is added to the redesignated paragraph h.
    c. Section III.B.6. is revised.
    d. In section III.D--
    i. The last sentence of the introductory paragraph is removed.
    ii. In paragraph 2., Items with a 50 percent conversion factor, the 
third undesignated paragraph is revised, the fourth undesignated 
paragraph is removed, and the five remaining undesignated paragraphs 
are designated as 2.a. through 2.c.
    iii. In paragraph 3, Items with a 20 percent conversion factor, the 
first undesignated paragraph is designated as 3.a. and a new paragraph 
3.b. is added.
    iv. The first sentence in paragraph 4., Items with a zero percent 
conversion factor, is revised.
    v. Footnote 54 is removed and reserved.
    e. Attachments IV, V, and VI are removed.

Appendix A to Part 208--Capital Adequacy Guidelines for State Member 
Banks: Risk-Based Measure

* * * * *
    II. * * *
    A. * * *
    1. * * *
    c. Minority interest in equity accounts of consolidated 
subsidiaries. This element is included in Tier 1 because, as a 
general rule, it represents equity that is freely available to 
absorb losses in operating subsidiaries whose assets are included in 
a bank's risk-weighted asset base. While not subject to an explicit 
sublimit within Tier 1, banks are expected to avoid using minority 
interest in the equity accounts of consolidated subsidiaries as an 
avenue for introducing into their capital structures elements that 
might not otherwise qualify as Tier 1 capital or that would, in 
effect, result in an excessive reliance on preferred stock within 
Tier 1. Minority interests in small business investment companies, 
investment funds that hold nonfinancial equity investments (as 
defined in section II.B.5.b. of this appendix A), and subsidiaries 
engaged in nonfinancial activities, are not included in the bank's 
Tier 1 or total capital base if the bank's interest in the company 
or fund is held under one of the legal authorities listed in section 
II.B.5.b. In addition, minority interests in consolidated asset-
backed commercial paper programs (as defined in section III.B.6. of 
this appendix) that are sponsored by a bank are not to be included 
in the bank's Tier 1 or total capital base when the bank excludes 
the consolidated assets of such programs from risk-weighted assets 
pursuant to section III.B.6. of this appendix.
* * * * *
    III. * * *
    B. * * *
    a. Definitions--i. Credit derivative means a contract that 
allows one party (the ``protection purchaser'') to transfer the 
credit risk of an asset or off-balance sheet credit exposure to 
another party (the ``protection provider''). The value of a credit 
derivative is dependent, at least in part, on the credit performance 
of the ``reference asset.''
    ii. Credit-enhancing representations and warranties means 
representations and warranties that are made or assumed in 
connection with a transfer of assets (including loan servicing 
assets) and that obligate the bank to protect investors from losses 
arising from credit risk in the assets transferred or the loans 
serviced. Credit-enhancing representations and warranties include 
promises to protect a party from losses resulting from the default 
or nonperformance of another party or from an insufficiency in the 
value of the collateral. Credit-enhancing representations and 
warranties do not include:
    1. Early default clauses and similar warranties that permit the 
return of, or premium refund clauses covering, 1-4 family 
residential first mortgage loans that qualify for a 50 percent risk 
weight for a period not to exceed 120 days from the date of 
transfer. These warranties may cover only those loans that were 
originated within 1 year of the date of transfer;
    2. Premium refund clauses that cover assets guaranteed, in whole 
or in part, by the U.S. Government, a U.S. Government agency or a 
government-sponsored enterprise, provided the premium refund clauses 
are for a period not to exceed 120 days from the date of transfer; 
or
    3. Warranties that permit the return of assets in instances of 
misrepresentation, fraud or incomplete documentation.
    iii. Direct credit substitute means an arrangement in which a 
bank assumes, in form or in substance, credit risk associated with 
an on- or off-balance sheet credit exposure that was not previously 
owned by the bank (third-party asset) and the risk assumed by the 
bank exceeds the pro rata share of the bank's interest in the third-
party asset. If the bank has no claim on the third-party asset, then 
the bank's assumption of any credit risk with respect to the third 
party asset is a direct credit substitute. Direct credit substitutes 
include, but are not limited to:
    1. Financial standby letters of credit that support financial 
claims on a third party that exceed a bank's pro rata share of 
losses in the financial claim;
    2. Guarantees, surety arrangements, credit derivatives, and 
similar instruments backing financial claims that exceed a bank's 
pro rata share in the financial claim;
    3. Purchased subordinated interests or securities that absorb 
more than their pro rata share of losses from the underlying assets;
    4. Credit derivative contracts under which the bank assumes more 
than its pro rata share of credit risk on a third party exposure;
    5. Loans or lines of credit that provide credit enhancement for 
the financial obligations of an account party;
    6. Purchased loan servicing assets if the servicer is 
responsible for credit losses or if the servicer makes or assumes 
credit-enhancing representations and warranties with respect to the 
loans serviced. Mortgage servicer cash advances that meet the 
conditions of section III.B.3.a.viii. of this appendix are not 
direct credit substitutes; and
    7. Clean-up calls on third party assets. Clean-up calls that are 
10 percent or less of the original pool balance that are exercisable 
at the option of the bank are not direct credit substitutes.
    8. Liquidity facilities extended to ABCP programs that are not 
eligible liquidity facilities (as defined in section III.B.3.a. of 
this appendix).
    iv. Early amortization triggers mean contractual requirements 
that, if triggered, would cause a securitization to begin repaying 
investors prior to the originally scheduled payment dates.
    v. Eligible liquidity facility means a facility subject to a 
reasonable asset quality test at

[[Page 56577]]

the time of draw that precludes funding against assets that are 60 
days or more past due or in default. In addition, if the assets that 
an eligible liquidity facility is required to fund against are 
externally rated exposures at the inception of the facility, the 
facility can be used to fund only exposures that are externally 
rated investment grade at the time of funding. Furthermore, an 
eligible liquidity facility must contain provisions that, prior to 
any draws, reduces the bank's funding obligation to cover only those 
assets that would meet the funding criteria under the facility's 
asset quality tests.
    vi. Excess Spread means gross finance charge collections and 
other income received by the trust or special purpose entity (SPE) 
minus certificate interest, servicing fees, charge-offs, and other 
trust or SPE expenses.
    vii. Externally rated means that an instrument or obligation has 
received a credit rating from a nationally-recognized statistical 
rating organization.
    viii. Face amount means the notional principal, or face value, 
amount of an off-balance sheet item; the amortized cost of an asset 
not held for trading purposes; and the fair value of a trading 
asset.
    ix. Financial asset means cash or other monetary instrument, 
evidence of debt, evidence of an ownership interest in an entity, or 
a contract that conveys a right to receive or exchange cash or 
another financial instrument from another party.
    x. Financial standby letter of credit means a letter of credit 
or similar arrangement that represents an irrevocable obligation to 
a third-party beneficiary:
    1. To repay money borrowed by, or advanced to, or for the 
account of, a second party (the account party), or
    2. To make payment on behalf of the account party, in the event 
that the account party fails to fulfill its obligation to the 
beneficiary.
    xi. Mortgage servicer cash advance means funds that a 
residential mortgage loan servicer advances to ensure an 
uninterrupted flow of payments, including advances made to cover 
foreclosure costs or other expenses to facilitate the timely 
collection of the loan. A mortgage servicer cash advance is not a 
recourse obligation or a direct credit substitute if:
    1. The servicer is entitled to full reimbursement and this right 
is not subordinated to other claims on the cash flows from the 
underlying asset pool; or
    2. For any one loan, the servicer's obligation to make 
nonreimbursable advances is contractually limited to an 
insignificant amount of the outstanding principal balance of that 
loan.
    xii. Nationally recognized statistical rating organization 
(NRSRO) means an entity recognized by the Division of Market 
Regulation of the Securities and Exchange Commission (or any 
successor Division) (Commission) as a nationally recognized 
statistical rating organization for various purposes, including the 
Commission's uniform net capital requirements for brokers and 
dealers.
    xiii. Recourse means the retention, by a bank, in form or in 
substance, of any credit risk directly or indirectly associated with 
an asset it has transferred and sold that exceeds a pro rata share 
of the bank's claim on the asset. If a bank has no claim on a 
transferred asset, then the retention of any risk of credit loss is 
recourse. A recourse obligation typically arises when a bank 
transfers assets and retains an explicit obligation to repurchase 
the assets or absorb losses due to a default on the payment of 
principal or interest or any other deficiency in the performance of 
the underlying obligor or some other party. Recourse may also exist 
implicitly if a bank provides credit enhancement beyond any 
contractual obligation to support assets it has sold. The following 
are examples of recourse arrangements:
    1. Credit-enhancing representations and warranties made on the 
transferred assets;
    2. Loan servicing assets retained pursuant to an agreement under 
which the bank will be responsible for credit losses associated with 
the loans being serviced. Mortgage servicer cash advances that meet 
the conditions of section III.B.3.a.viii. of this appendix are not 
recourse arrangements;
    3. Retained subordinated interests that absorb more than their 
pro rata share of losses from the underlying assets;
    4. Assets sold under an agreement to repurchase, if the assets 
are not already included on the balance sheet;
    5. Loan strips sold without contractual recourse where the 
maturity of the transferred loan is shorter than the maturity of the 
commitment under which the loan is drawn;
    6. Credit derivatives issued that absorb more than the bank's 
pro rata share of losses from the transferred assets; and
    7. Clean-up calls at inception that are greater than 10 percent 
of the balance of the original pool of transferred loans. Clean-up 
calls that are 10 percent or less of the original pool balance that 
are exercisable at the option of the bank are not recourse 
arrangements.
    8. Liquidity facilities extended to ABCP programs that are not 
eligible liquidity facilities (as defined in section III.B.3.a. of 
this appendix).
    xiv. Residual interest means any on-balance sheet asset that 
represents an interest (including a beneficial interest) created by 
a transfer that qualifies as a sale (in accordance with generally 
accepted accounting principles) of financial assets, whether through 
a securitization or otherwise, and that exposes the bank to credit 
risk directly or indirectly associated with the transferred assets 
that exceeds a pro rata share of the bank's claim on the assets, 
whether through subordination provisions or other credit enhancement 
techniques. Residual interests generally include credit-enhancing I/
Os, spread accounts, cash collateral accounts, retained subordinated 
interests, other forms of over-collateralization, and similar assets 
that function as a credit enhancement. Residual interests further 
include those exposures that, in substance, cause the bank to retain 
the credit risk of an asset or exposure that had qualified as a 
residual interest before it was sold. Residual interests generally 
do not include interests purchased from a third party, except that 
purchased credit-enhancing I/Os are residual interests for purposes 
of this appendix.
    xv. Revolving retail credit facility means an exposure to an 
individual where the borrower is permitted to vary both the drawn 
amount and the amount of repayment within an agreed limit under a 
line of credit (such as credit card accounts). Revolving retail 
credits include business credit card accounts.
    xvi. Risk participation means a participation in which the 
originating party remains liable to the beneficiary for the full 
amount of an obligation (e.g., a direct credit substitute) 
notwithstanding that another party has acquired a participation in 
that obligation.
    xvii. Securitization means the pooling and repackaging by a 
special purpose entity of assets or other credit exposures into 
securities that can be sold to investors. Securitization includes 
transactions that create stratified credit risk positions whose 
performance is dependent upon an underlying pool of credit 
exposures, including loans and commitments.
    xviii. Sponsor means a bank that establishes an asset-backed 
commercial paper program; approves the sellers permitted to 
participate in the program; approves the asset pools to be purchased 
by the program; or administers the asset-backed commercial paper 
program by monitoring the assets, arranging for debt placement, 
compiling monthly reports, or ensuring compliance with the program 
documents and with the program's credit and investment policy.
    xix. Structured finance program means a program where receivable 
interests and asset-backed securities issued by multiple 
participants are purchased by a special purpose entity that 
repackages those exposures into securities that can be sold to 
investors. Structured finance programs allocate credit risks, 
generally, between the participants and credit enhancement provided 
to the program.
    xx. Traded position means a position that is externally rated 
and is retained, assumed, or issued in connection with an asset 
securitization, where there is a reasonable expectation that, in the 
near future, the rating will be relied upon by unaffiliated 
investors to purchase the position; or an unaffiliated third party 
to enter into a transaction involving the position, such as a 
purchase, loan, or repurchase agreement.
* * * * *
    g. Early Amortization Triggers. i. A bank that originates 
securitizations of revolving retail credit facilities that contain 
early amortization triggers must incorporate the off-balance sheet 
portion of such a securitization (that is, the investors' interest) 
into the bank's risk-weighted assets by multiplying the outstanding 
principal amount of the investors' interest by the appropriate 
credit conversion factor and then assigning the resultant credit 
equivalent amount to the appropriate risk weight category. The 
credit conversion factor to be applied to such a securitization 
generally is a function of the securitization's most recent three-
month average excess spread level, the point at which excess spread 
in the securitization must be trapped in a spread or reserve 
account, and the excess spread level

[[Page 56578]]

at which an early amortization of the securitization is triggered.
    ii. In order to determine the appropriate credit conversion 
factor to be applied to the outstanding principal balance of the 
investors' interest, the originating bank must compare the 
securitization's most recent three-month average excess spread level 
against the difference between the point at which the bank is 
required by the securitization documents to divert and trap excess 
spread (spread trapping point) in a spread or reserve account and 
the excess spread level at which early amortization of the 
securitization is triggered (early amortization trigger). The 
difference between the spread trapping point and the early 
amortization trigger is referred to as the excess spread 
differential (ESD). In a securitization of revolving retail credit 
facilities that employs the concept of excess spread to determine 
when an early amortization is triggered but where the 
securitization's transaction documents do not require excess spread 
to be diverted to a spread or reserve account at a certain level, 
the ESD is deemed to be 4.5 percentage points.
    iii. If a securitization of revolving retail credit facilities 
does not employ the concept of excess spread as the transaction's 
determining factor of when an early amortization is triggered, then 
a 10 percent credit conversion factor is applied to the outstanding 
principal balance of the investors' interest at the securitization's 
inception.
    iv. The ESD must then be divided to create four equal ESD 
segments. For example, when the ESD is 4.5 percent, this amount is 
divided into 4 equal ESD segments of 112.5 basis points. A credit 
conversion factor of zero percent would be applied to the 
outstanding principal balance of the investors' interest if the 
securitization's three-month average excess spread equaled or 
exceeded the securitization's spread trapping point (4.5 percent in 
the example). Credit conversion factors of 5 percent, 10 percent, 50 
percent, and 100 percent are then assigned to each of the four equal 
ESD segments in descending order beginning at the spread trapping 
point as the securitization approaches early amortization. For 
instance, when the ESD is 4.5 percent, the credit conversion factors 
would be applied to the outstanding balance of the investors' 
interest as follows:

   Example of Credit Conversion Factor Assignment by Segment of Excess
                           Spread Differential
                Segment of excess spread differential Credit conversion
factor (percent)
450 bp or more  0
Less than 450 bp to 337.5 bp  5
Less than 337.5 bp to 225 bp  10
Less than 225 bp to 112.5 bp  50
Less than 112.5 bp  100
h. Limitations on risk-based capital requirements. * * *
    iv. For a bank subject to the early amortization treatment in 
section III.B.3.g. of this appendix, the total risk-based capital 
requirement for all of the bank's exposures to a securitization of 
revolving retail credit facilities is limited to the greater of the 
risk-based capital requirement for residual interests, as defined in 
section III.B.3.a. of this appendix, or the risk-based capital 
requirement for the underlying securitized assets calculated as if 
the bank continued to hold the assets on its balance sheet.
* * * * *
    6. Asset-backed commercial paper programs. a. An asset-backed 
commercial paper (ABCP) program typically is a program through which 
a bank provides funding to its corporate customers by sponsoring and 
administering a bankruptcy-remote special purpose entity that 
purchases asset pools from, or extends loans to, the bank's 
customers. The ABCP program raises the cash to provide the funding 
through the issuance of commercial paper in the market.
    b. A bank that qualifies as a primary beneficiary and must 
consolidate an ABCP program that is defined as a variable interest 
entity under GAAP may exclude the consolidated ABCP program assets 
from risk-weighted assets provided that the bank is the sponsor of 
the consolidated ABCP program. If a bank excludes such consolidated 
ABCP program assets, the bank must assess the appropriate risk-based 
capital charge against any risk exposures of the bank arising in 
connection with such ABCP programs, including direct credit 
substitutes, recourse obligations, residual interests, liquidity 
facilities, and loans, in accordance with sections III.B.3, III.C. 
and III.D. of this appendix.
* * * * *
    III. * * *
    D. * * *
    2. Items with a 50 percent conversion factor. * * *
    c. Commitments are defined as any legally binding arrangements 
that obligate a bank to extend credit in the form of loans or 
leases; to purchase loans, securities, or other assets; or to 
participate in loans and leases. They also include overdraft 
facilities, revolving credit, home equity and mortgage lines of 
credit, eligible liquidity facilities to asset-backed commercial 
paper programs-,(in form or in substance), and similar transactions. 
Normally, commitments involve a written contract or agreement and a 
commitment fee, or some other form of consideration. Commitments are 
included in weighted-risk assets regardless of whether they contain 
``material adverse change'' clauses or other provisions that are 
intended to relieve the issuer of its funding obligation under 
certain conditions. In the case of commitments structured as 
syndications, where the bank is obligated solely for its pro rata 
share, only the bank's proportional share of the syndicated 
commitment is taken into account in calculating the risk-based 
capital ratio. Banks that are subject to the market risk rules are 
required to convert the notional amount of long-term covered 
positions carried in the trading account that act as eligible 
liquidity facilities to ABCP programs, in form or in substance, at 
50 percent to determine the appropriate credit equivalent amount for 
those facilities even though they are structured or characterized as 
derivatives or other trading book assets.
* * * * *
    3. Items with a 20 percent conversion factor. * * *
    a. * * *
    b. Undrawn portions of eligible liquidity facilities with an 
original maturity of one year or less that banks provide to asset-
backed commercial paper (ABCP) programs also are converted at 20 
percent. The resulting credit equivalent amount is then assigned to 
the risk category appropriate to the underlying assets or the 
obligor, after consideration of any collateral or guarantees, or 
external credit ratings, if applicable. Banks that comply with the 
market risk rules are required to convert the notional amount of 
short-term covered positions carried in the trading account that act 
as liquidity facilities to ABCP programs, in form or in substance, 
at 20 percent to determine the appropriate credit equivalent amount 
for those facilities even though they are structured or 
characterized as derivatives or other trading book assets. Liquidity 
facilities extended to ABCP programs that do not meet the following 
criteria are to be considered recourse obligations or direct credit 
substitutes and assessed the appropriate risk-based capital 
requirement in accordance with section III.B.3. of this appendix. 
Eligible liquidity facilities must be subject to a reasonable asset 
quality test at the time of draw that precludes funding against 
assets in the ABCP program that are 60 days or more past due or in 
default. In addition, if the assets that eligible liquidity 
facilities are required to fund against are externally rated 
exposures, the facility can be used to fund only those exposures 
that are externally rated investment grade at the time of funding. 
Furthermore, liquidity facilities should contain provisions that, 
prior to any draws, reduces the bank's funding obligation to cover 
only those assets that would meet the funding criteria under the 
facilities' asset quality tests.
    4. * * * These include unused portions of commitments, with the 
exception of eligible liquidity facilities provided to ABCP 
programs, with an original maturity of one year or less,\54\ or 
which are unconditionally cancelable at any time, provided a 
separate credit decision is made before each drawing under the 
facility. * * *
---------------------------------------------------------------------------

    \54\ [Reserved]
---------------------------------------------------------------------------

* * * * *
    3. Amend appendix E to part 208 by adding two new sentences at the 
end of section 2.(a). to read as follows:

Appendix E to Part 208--Capital Adequacy Guidelines for State Member 
Banks; Market Risk Measure

* * * * *

Section 2. Definitions * * *

    (a) *** Covered positions exclude all positions in a bank's 
trading account that, in form or in substance, act as eligible 
liquidity facilities (as defined in section III.B.3.a. of

[[Page 56579]]

appendix A of this part) to asset-backed commercial paper programs 
(as defined in section III.B.6. of appendix A of this part). Such 
excluded positions are subject to the risk-based capital 
requirements set forth in appendix A of this part.
* * * * *

PART 225--BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL 
(REGULATION Y)

    1. The authority citation for part 225 continues to read as 
follows:

    Authority: 12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 
1843( c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3907, 
and 3909; 15 U.S.C. 6801 and 6805.

    2. In Appendix A to part 225, the following amendments are 
proposed:
    a. Section II.A.1.c. is revised.
    b. In section III.B.3--
    i. Paragraph a., Definitions, is revised.
    ii. Paragraph g., Limitations on risk-based capital requirements, 
is redesignated as paragraph h.
    iii. A new paragraph g., Early amortization triggers, is added.
    iv. A new paragraph iv., is added to the redesignated paragraph h.
    c. Section III.B.6. is revised.
    d. In section III.D--
    i. The last sentence of the introductory paragraph is removed.
    ii. In paragraph 2., Items with a 50 percent conversion factor, the 
third undesignated paragraph is revised, the fourth undesignated 
paragraph is removed, and the five remaining undesignated paragraphs 
are designated as 2.a. through 2.e
    iii. In paragraph 3, Items with a 20 percent conversion factor, the 
first undesignated paragraph is designated as 3.a. and a new paragraph 
3.b. is added.
    iv. The first sentence in the paragraph 4., Items with a zero 
percent conversion factor, is revised.
    d. Attachments IV, V, and VI are removed.

Appendix A to Part 225--Capital Adequacy Guidelines for Bank Holding 
Companies: Risk-Based Measure

* * * * *
    II. * * *
    A. * * *
    1. * * *
    c. Minority interest in equity accounts of consolidated 
subsidiaries. This element is included in Tier 1 because, as a 
general rule, it represents equity that is freely available to 
absorb losses in operating subsidiaries whose assets are included in 
a bank organization's risk-weighted asset base. While not subject to 
an explicit sublimit within Tier 1, banking organizations are 
expected to avoid using minority interest in the equity accounts of 
consolidated subsidiaries as an avenue for introducing into their 
capital structures elements that might not otherwise qualify as Tier 
1 capital or that would, in effect, result in an excessive reliance 
on preferred stock within Tier 1. Minority interests in small 
business investment companies, investment funds that hold 
nonfinancial equity investments (as defined in section II.B.5.b. of 
this appendix A), and subsidiaries engaged in nonfinancial 
activities are not included in the banking organization's Tier 1 or 
total capital base if the organization's interest in the company or 
fund is held under one of the legal authorities listed in section 
II.B.5.b. In addition, minority interests in consolidated asset-
backed commercial paper programs (as defined in section III.B.6. of 
this appendix) that are sponsored by a banking organization are not 
to be included in the organization's Tier 1 or total capital base if 
the bank holding company excludes the consolidated assets of such 
programs from risk-weighted assets pursuant to section III.B.6. of 
this appendix.
* * * * *
    III. * * *
    B. * * *
    a. Definitions--i. Credit derivative means a contract that 
allows one party (the ``protection purchaser'') to transfer the 
credit risk of an asset or off-balance sheet credit exposure to 
another party (the ``protection provider''). The value of a credit 
derivative is dependent, at least in part, on the credit performance 
of the ``reference asset.''
    ii. Credit-enhancing representations and warranties means 
representations and warranties that are made or assumed in 
connection with a transfer of assets (including loan servicing 
assets) and that obligate the bank holding company to protect 
investors from losses arising from credit risk in the assets 
transferred or the loans serviced. Credit-enhancing representations 
and warranties include promises to protect a party from losses 
resulting from the default or nonperformance of another party or 
from an insufficiency in the value of the collateral. Credit-
enhancing representations and warranties do not include:
    1. Early default clauses and similar warranties that permit the 
return of, or premium refund clauses covering, 1-4 family 
residential first mortgage loans that qualify for a 50 percent risk 
weight for a period not to exceed 120 days from the date of 
transfer. These warranties may cover only those loans that were 
originated within 1 year of the date of transfer;
    2. Premium refund clauses that cover assets guaranteed, in whole 
or in part, by the U.S. Government, a U.S. Government agency or a 
government-sponsored enterprise, provided the premium refund clauses 
are for a period not to exceed 120 days from the date of transfer; 
or
     3. Warranties that permit the return of assets in instances of 
misrepresentation, fraud or incomplete documentation.
    iii. Direct credit substitute means an arrangement in which a 
bank holding company assumes, in form or in substance, credit risk 
associated with an on- or off-balance sheet credit exposure that was 
not previously owned by the bank holding company (third-party asset) 
and the risk assumed by the bank holding company exceeds the pro 
rata share of the bank holding company's interest in the third-party 
asset. If the bank holding company has no claim on the third-party 
asset, then the bank holding company's assumption of any credit risk 
with respect to the third party asset is a direct credit substitute. 
Direct credit substitutes include, but are not limited to:
    1. Financial standby letters of credit that support financial 
claims on a third party that exceed a bank holding company's pro 
rata share of losses in the financial claim;
    2. Guarantees, surety arrangements, credit derivatives, and 
similar instruments backing financial claims that exceed a bank 
holding company's pro rata share in the financial claim;
    3. Purchased subordinated interests or securities that absorb 
more than their pro rata share of losses from the underlying assets;
    4. Credit derivative contracts under which the bank holding 
company assumes more than its pro rata share of credit risk on a 
third party exposure;
    5. Loans or lines of credit that provide credit enhancement for 
the financial obligations of an account party;
    6. Purchased loan servicing assets if the servicer is 
responsible for credit losses or if the servicer makes or assumes 
credit-enhancing representations and warranties with respect to the 
loans serviced. Mortgage servicer cash advances that meet the 
conditions of section III.B.3.a.viii. of this appendix are not 
direct credit substitutes; and
    7. Clean-up calls on third party assets. Clean-up calls that are 
10 percent or less of the original pool balance that are exercisable 
at the option of the bank holding company are not direct credit 
substitutes.
    8. Liquidity facilities extended to ABCP programs that are not 
eligible liquidity facilities (as defined in section III.B.3.a. of 
this appendix).
    iv. Early Amortization Triggers mean contractual requirements 
that, if triggered, would cause a securitization to begin repaying 
investors prior to the originally scheduled payment dates.
    v. Eligible liquidity facility means a facility subject to a 
reasonable asset quality test at the time of draw that precludes 
funding against assets that are 60 days or more past due or in 
default. In addition, if the assets that an eligible liquidity 
facility is required to fund against are externally rated exposures 
at the inception of the facility, the facility can be used to fund 
only those exposures that are externally rated investment grade at 
the time of funding. Furthermore, an eligible liquidity facility 
must contain provisions that, prior to any draws, reduces the bank 
holding company's funding obligation to cover only those assets that 
would meet the funding criteria under the facility's asset quality 
tests.
    vi. Excess Spread means gross finance charge collections and 
other income received by the trust or special purpose entity (SPE) 
minus certificate interest, servicing fees, charge-offs, and other 
trust or SPE expenses.
    vii. Externally rated means that an instrument or obligation has 
received a credit rating from a nationally-recognized statistical 
rating organization.
    viii. Face amount means the notional principal, or face value, 
amount of an off-balance sheet item; the amortized cost of an

[[Page 56580]]

asset not held for trading purposes; and the fair value of a trading 
asset.
    ix. Financial asset means cash or other monetary instrument, 
evidence of debt, evidence of an ownership interest in an entity, or 
a contract that conveys a right to receive or exchange cash or 
another financial instrument from another party.
    x. Financial standby letter of credit means a letter of credit 
or similar arrangement that represents an irrevocable obligation to 
a third-party beneficiary:
    1. To repay money borrowed by, or advanced to, or for the 
account of, a second party (the account party), or
    2. To make payment on behalf of the account party, in the event 
that the account party fails to fulfill its obligation to the 
beneficiary.
    xi. Mortgage servicer cash advance means funds that a 
residential mortgage loan servicer advances to ensure an 
uninterrupted flow of payments, including advances made to cover 
foreclosure costs or other expenses to facilitate the timely 
collection of the loan. A mortgage servicer cash advance is not a 
recourse obligation or a direct credit substitute if:
    1. The servicer is entitled to full reimbursement and this right 
is not subordinated to other claims on the cash flows from the 
underlying asset pool; or
    2. For any one loan, the servicer's obligation to make 
nonreimbursable advances is contractually limited to an 
insignificant amount of the outstanding principal balance of that 
loan.
    xii. Nationally recognized statistical rating organization 
(NRSRO) means an entity recognized by the Division of Market 
Regulation of the Securities and Exchange Commission (or any 
successor Division) (Commission) as a nationally recognized 
statistical rating organization for various purposes, including the 
Commission's uniform net capital requirements for brokers and 
dealers.
    xiii. Recourse means the retention, by a bank holding company, 
in form or in substance, of any credit risk directly or indirectly 
associated with an asset it has transferred and sold that exceeds a 
pro rata share of the banking organization's claim on the asset. If 
a banking organization has no claim on a transferred asset, then the 
retention of any risk of credit loss is recourse. A recourse 
obligation typically arises when a bank holding company transfers 
assets and retains an explicit obligation to repurchase the assets 
or absorb losses due to a default on the payment of principal or 
interest or any other deficiency in the performance of the 
underlying obligor or some other party. Recourse may also exist 
implicitly if a bank holding company provides credit enhancement 
beyond any contractual obligation to support assets it has sold. The 
following are examples of recourse arrangements:
    1. Credit-enhancing representations and warranties made on the 
transferred assets;
    2. Loan servicing assets retained pursuant to an agreement under 
which the bank holding company will be responsible for credit losses 
associated with the loans being serviced. Mortgage servicer cash 
advances that meet the conditions of section III.B.3.a.viii. of this 
appendix are not recourse arrangements;
    3. Retained subordinated interests that absorb more than their 
pro rata share of losses from the underlying assets;
    4. Assets sold under an agreement to repurchase, if the assets 
are not already included on the balance sheet;
    5. Loan strips sold without contractual recourse where the 
maturity of the transferred loan is shorter than the maturity of the 
commitment under which the loan is drawn;
    6. Credit derivatives issued that absorb more than the bank 
holding company's pro rata share of losses from the transferred 
assets; and
    7. Clean-up calls at inception that are greater than 10 percent 
of the balance of the original pool of transferred loans. Clean-up 
calls that are 10 percent or less of the original pool balance that 
are exercisable at the option of the bank are not recourse 
arrangements.
    8. Liquidity facilities extended to ABCP programs that are not 
eligible liquidity facilities (as defined in section III.B.3.a. of 
this appendix).
    xiv. Residual interest means any on-balance sheet asset that 
represents an interest (including a beneficial interest) created by 
a transfer that qualifies as a sale (in accordance with generally 
accepted accounting principles) of financial assets, whether through 
a securitization or otherwise, and that exposes the bank holding 
company to credit risk directly or indirectly associated with the 
transferred assets that exceeds a pro rata share of the bank holding 
company's claim on the assets, whether through subordination 
provisions or other credit enhancement techniques. Residual 
interests generally include credit-enhancing I/Os, spread accounts, 
cash collateral accounts, retained subordinated interests, other 
forms of over-collateralization, and similar assets that function as 
a credit enhancement. Residual interests further include those 
exposures that, in substance, cause the bank holding company to 
retain the credit risk of an asset or exposure that had qualified as 
a residual interest before it was sold. Residual interests generally 
do not include interests purchased from a third party, except that 
purchased credit-enhancing I/Os are residual interests for purposes 
of this appendix.
    xv. Revolving retail credit facility means an exposure to an 
individual where the borrower is permitted to vary both the drawn 
amount and the amount of repayment within an agreed limit under a 
line of credit (such as credit card accounts). Revolving retail 
credits include business credit card accounts.
    xvi. Risk participation means a participation in which the 
originating party remains liable to the beneficiary for the full 
amount of an obligation (e.g., a direct credit substitute) 
notwithstanding that another party has acquired a participation in 
that obligation.
    xvii. Securitization means the pooling and repackaging by a 
special purpose entity of assets or other credit exposures into 
securities that can be sold to investors. Securitization includes 
transactions that create stratified credit risk positions whose 
performance is dependent upon an underlying pool of credit 
exposures, including loans and commitments.
    xviii. Sponsor means a bank holding company that establishes an 
asset-backed commercial paper program; approves the sellers 
permitted to participate in the program; approves the asset pools to 
be purchased by the program; or administers the asset-backed 
commercial paper program by monitoring the assets, arranging for 
debt placement, compiling monthly reports, or ensuring compliance 
with the program documents and with the program's credit and 
investment policy.
    xix. Structured finance program means a program where receivable 
interests and asset-backed securities issued by multiple 
participants are purchased by a special purpose entity that 
repackages those exposures into securities that can be sold to 
investors. Structured finance programs allocate credit risks, 
generally, between the participants and credit enhancement provided 
to the program.
    xx. Traded position means a position that is externally rated 
and is retained, assumed, or issued in connection with an asset 
securitization, where there is a reasonable expectation that, in the 
near future, the rating will be relied upon by unaffiliated 
investors to purchase the position; or an unaffiliated third party 
to enter into a transaction involving the position, such as a 
purchase, loan, or repurchase agreement.
* * * * *
    g. Early Amortization Triggers. i. A bank holding company that 
originates securitizations of revolving retail credit facilities 
that contain early amortization triggers must incorporate the off-
balance sheet portion of such a securitization (that is, the 
investors' interest) into the bank's risk-weighted assets by 
multiplying the outstanding principal amount of the investors' 
interest by the appropriate credit conversion factor and then 
assigning the resultant credit equivalent amount to the appropriate 
risk weight category. The credit conversion factor to be applied to 
such a securitization generally is a function of the 
securitization's most recent three-month average excess spread 
level, the point at which excess spread in the securitization must 
be trapped in a spread or reserve account, and the excess spread 
level at which an early amortization of the securitization is 
triggered.
    ii. In order to determine the appropriate credit conversion 
factor to be applied to the outstanding principal balance of the 
investors' interest, the originating bank holding company must 
compare the securitization's most recent three-month average excess 
spread level against the difference between the point at which the 
organization is required by the securitization documents to divert 
and trap excess spread (spread trapping point) in a spread or 
reserve account and the excess spread level at which early 
amortization of the securitization is triggered (early amortization 
trigger). The difference between the spread trapping point and the 
early amortization trigger is referred to as the excess spread 
differential (ESD). In

[[Page 56581]]

a securitization of revolving retail credit facilities that employs 
the concept of excess spread to determine when an early amortization 
is triggered but where the securitization's transaction documents do 
not require excess spread to be diverted to a spread or reserve 
account at a certain level, the ESD is deemed to be 4.5 percentage 
points.
    iii. If a securitization of revolving retail credit facilities 
does not employ the concept of excess spread as the transaction's 
determining factor of when an early amortization is triggered, then 
a 10 percent credit conversion factor is applied to the outstanding 
principal balance of the investors' interest at the securitization's 
inception.
    iv. The ESD must then be divided to create four equal ESD 
segments. For example, when the ESD is 4.5 percent, this amount is 
divided into 4 equal ESD segments of 112.5 basis points. A credit 
conversion factor of zero percent would be applied to the 
outstanding principal balance of the investors' interest if the 
securitization's three-month average excess spread equaled or 
exceeded the securitization's spread trapping point (4.5 percent in 
the example). Credit conversion factors of 5 percent, 10 percent, 50 
percent, and 100 percent are then assigned to each of the four equal 
ESD segments in descending order beginning with the spread trapping 
point as the securitization approaches early amortization. For 
instance, when the ESD is 4.5 percent, the credit conversion factors 
would be applied to the outstanding balance of the investors' 
interest as follows:

   Example of Credit Conversion Factor Assignment by Segment of Excess
                           Spread Differential
                Segment of excess spread differential Credit conversion
factor (percent)
450 bp or more  0
Less than 450 bp to 337.5 bp  5
Less than 337.5 bp to 225 bp  10
Less than 225 bp to 112.5 bp  50
Less than 112.5 bp  100

h. Limitations on risk-based capital requirements. * * * iv. For a bank holding company subject to the early amortization treatment in section III.B.3.g. of this appendix, the total risk- based capital requirement for all of the bank's exposures to a securitization of revolving retail credit facilities is limited to the greater of the risk-based capital requirement for residual interests, as defined in section III.B.3.a. of this appendix, or the risk-based capital requirement for the underlying securitized assets calculated as if the bank holding company continued to hold the assets on its balance sheet. * * * * * 6. Asset-backed commercial paper programs. a. An asset-backed commercial paper (ABCP) program typically is a program through which a bank holding company provides funding to its corporate customers by sponsoring and administering a bankruptcy-remote special purpose entity that purchases asset pools from, or extends loans to, the banking organization's customers. The ABCP program raises the cash to provide the funding through the issuance of commercial paper in the market. b. A bank holding company that qualifies as a primary beneficiary and must consolidate an ABCP program that is defined as a variable interest entity under GAAP may exclude the consolidated ABCP program assets from risk-weighted assets provided that the bank is the sponsor of the consolidated ABCP program. If a bank holding company excludes such consolidated ABCP program assets, the bank holding company must assess the appropriate risk-based capital charge against any risk exposures of the organization arising in connection with such ABCP programs, including direct credit substitutes, recourse obligations, residual interests, liquidity facilities, and loans, in accordance with sections III.B.3, III.C. and III.D. of this appendix. * * * * * III. * * * D. * * * 2. Items with a 50 percent conversion factor. * * * c. Commitments are defined as any legally binding arrangements that obligate a banking organization to extend credit in the form of loans or leases; to purchase loans, securities, or other assets; or to participate in loans and leases. They also include overdraft facilities, revolving credit, home equity and mortgage lines of credit, eligible liquidity facilities to asset-backed commercial paper programs (in form or in substance), and similar transactions. Normally, commitments involve a written contract or agreement and a commitment fee, or some other form of consideration. Commitments are included in weighted-risk assets regardless of whether they contain ``material adverse change'' clauses or other provisions that are intended to relieve the issuer of its funding obligation under certain conditions. In the case of commitments structured as syndications, where the banking organization is obligated solely for its pro rata share, only the organization's proportional share of the syndicated commitment is taken into account in calculating the risk-based capital ratio. Banking organizations that are subject to the market risk rules are required to convert the notional amount of long-term covered positions carried in the trading account that act as eligible liquidity facilities to ABCP programs, in form or in substance, at 50 percent to determine the appropriate credit equivalent amount for those facilities even though they are structured or characterized as derivatives or other trading book assets. * * * * * 3. Items with a 20 percent conversion factor. * * * a. * * * b. Undrawn portions of eligible liquidity facilities with an original maturity of one year or less, that banking organizations provide to asset-backed commercial paper (ABCP) programs also are converted at 20 percent. The resulting credit equivalent amount is then assigned to the risk category appropriate to the underlying assets or the obligor, after consideration of any collateral or guarantees, or external credit ratings, if applicable. Banking organizations that are subject to the market risk rules are required to convert the notional amount of short-term covered positions carried in the trading account that act as eligible liquidity facilities to ABCP programs, in form or in substance, at 20 percent to determine the appropriate credit equivalent amount for those facilities even though they are structured or characterized as derivatives or other trading book assets. Liquidity facilities extended to ABCP programs that do not meet the following criteria are to be considered recourse obligations or direct credit substitutes and assessed the appropriate risk-based capital requirement in accordance with section III.B.3. of this appendix. Eligible liquidity facilities must be subject to a reasonable asset quality test at the time of draw that precludes funding against assets in the ABCP program that are 60 days or more past due or in default. In addition, if the assets that eligible liquidity facilities are required to fund against are externally rated exposures, the facility can be used to fund only those exposures that are externally rated investment grade at the time of funding. Furthermore, liquidity facilities must contain provisions that, prior to any draws, reduces the banking organization's funding obligation to cover only those assets that would meet the funding criteria under the facilities' asset quality tests. 4. * * * These include unused portions of commitments, with the exception of eligible liquidity facilities provided to ABCP programs, with an original maturity of one year or less, or which are unconditionally cancelable at any time, provided a separate credit decision is made before each drawing under the facility. * * * * * * * * 3. Amend appendix E to part 225 by adding two new sentences at the end of section 2.(a). to read as follows: Appendix E to Part 225--Capital Adequacy Guidelines for Bank Holding Companies; Market Risk Measure * * * * * Section 2. Definitions * * * (a) * * * Covered positions exclude all positions in a banking organization's trading account that, in form or in substance, act as eligible liquidity facilities (as defined in section III.B.3.a. of appendix A of this part) to asset-backed commercial paper programs (as defined in section III.B.6. of appendix A of this part). Such excluded positions are subject to the risk-based capital requirements set forth in appendix A of this part. * * * * * [[Page 56582]] By order of the Board of Governors of the Federal Reserve System, September 12, 2003. Jennifer J. Johnson, Secretary of the Board. FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Chapter III Authority and Issuance For the reasons set forth in the joint preamble, the Board of Directors of the Federal Deposit Insurance Corporation proposes to amend part 325 of chapter III of title 12 of the Code of Federal Regulations as follows: PART 325--CAPITAL MAINTENANCE 1. The authority citation for part 325 continues to read as follows: Authority: 12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; Pub. L. 102-233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 105 Stat. 2236, 2355, as amended by Pub. L. 103-325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note). 2. In Appendix A to part 325, the following amendments are proposed: a. Section I.A.1. is revised. b. In section II.B.5 -- i. Paragraph (a), Definitions, is revised. ii. Paragraph (h), Limitations on risk-based capital requirements, and paragraph (i), Alternative Capital Calculation for Small Business Obligations, are redesignated as paragraphs (i) and (j) respectively. iii. A new paragraph (h), Early amortization triggers, is added. iv. A new paragraph (4), is added to the redesignated paragraph (i). c. Section II.B.6. is revised. d. In section II.D-- i. The last sentence of the introductory paragraph is removed; ii. In paragraph 2., Items With a 50 Percent Conversion Factor, the four undesignated paragraphs are designated 2.a. through 2.d. and newly designated 2.c. is revised; iii. In paragraph 3, Items With a 20 Percent Conversion Factor, the first undesignated paragraph is designated as 3.a. and a new paragraph 3.b. is added; iv. The first sentence in paragraph 4., Items With a Zero Percent Conversion Factor, is revised. e. Tables III and IV are removed. APPENDIX A TO PART 325--STATEMENT OF POLICY ON RISK-BASED CAPITAL * * * * * I. * * * A. * * * 1. Core capital elements (Tier 1) consists of: i. Common stockholders' equity capital (includes common stock and related surplus, undivided profits, disclosed capital reserves that represent a segregation of undivided profits, and foreign currency translation adjustments, less net unrealized holding losses on available-for-sale equity securities with readily determinable fair values); ii. Noncumulative perpetual preferred stock,\2\ including any related surplus; and --------------------------------------------------------------------------- \2\ Preferred stock issues where the dividend is reset periodically based, in whole or in part, upon the bank's current credit standing, including but not limited to, auction rate, money market or remarketable preferred stock, are assigned to Tier 2 capital, regardless of whether the dividends are cumulative or noncumulative. --------------------------------------------------------------------------- iii. Minority interests in the equity capital accounts of consolidated subsidiaries. (a) At least 50 percent of the qualifying total capital base should consist of Tier 1 capital. Core (Tier 1) capital is defined as the sum of core capital elements minus all intangible assets (other than mortgage servicing assets, nonmortgage servicing assets and purchased credit card relationships eligible for inclusion in core capital pursuant to Sec. 325.5(f),\3\ minus credit-enhancing interest-only strips that are not eligible for inclusion in core capital pursuant to Sec. 325.5(f), minus any disallowed deferred tax assets, and minus any amount of nonfinancial equity investments required to be deducted pursuant to section II.B.(6) of this Appendix. --------------------------------------------------------------------------- \3\ An exception is allowed for intangible assets that are explicitly approved by the FDIC as part of the bank's regulatory capital on a specific case basis. These intangibles will be included in capital for risk-based capital purposes under the terms and conditions that are specifically approved by the FDIC. --------------------------------------------------------------------------- (b) Although nonvoting common stock, noncumulative perpetual preferred stock, and minority interests in the equity capital accounts of consolidated subsidiaries are normally included in Tier 1 capital, voting common stockholders' equity generally will be expected to be the dominant form of Tier 1 capital. Thus, banks should avoid undue reliance on nonvoting equity, preferred stock and minority interests. (c) Although minority interests in consolidated subsidiaries are generally included in regulatory capital, exceptions to this general rule will be made if the minority interests fail to provide meaningful capital support to the consolidated bank. Such a situation could arise if the minority interests are entitled to a preferred claim on essentially low risk assets of the subsidiary. Similarly, although credit-enhancing interest-only strips and intangible assets in the form of mortgage servicing assets, nonmortgage servicing assets and purchased credit card relationships are generally recognized for risk-based capital purposes, the deduction of part or all of the credit-enhancing interest-only strips, mortgage servicing assets, nonmortgage servicing assets and purchased credit card relationships may be required if the carrying amounts of these assets are excessive in relation to their market value or the level of the bank's capital accounts. Credit-enhancing interest-only strips, mortgage servicing assets, nonmortgage servicing assets, purchased credit card relationships and deferred tax assets that do not meet the conditions, limitations and restrictions described in Sec. 325.5(f) and (g) of this part will not be recognized for risk-based capital purposes. (d) Minority interests in small business investment companies, investment funds that hold nonfinancial equity investments (as defined in section II.B.(6)(ii) of this appendix A), and subsidiaries that are engaged in nonfinancial activities are not included in the bank's Tier 1 or total capital base if the bank's interest in the company or fund is held under one of the legal authorities listed in section II.B.(6)(ii) of this appendix A. In addition, minority interests in consolidated asset-backed commercial paper programs that are sponsored by a bank are not to be included in the bank's Tier 1 or total capital base if the bank excludes the consolidated assets of such programs from risk-weighted assets pursuant to section II.B.6. of this appendix. * * * * * II. * * * B. * * * 5. * * * a. Definitions--(1) Credit derivative means a contract that allows one party (the ``protection purchaser'') to transfer the credit risk of an asset or off-balance sheet credit exposure to another party (the ``protection provider''). The value of a credit derivative is dependent, at least in part, on the credit performance of the ``reference asset.'' (2) Credit-enhancing interest only strip is defined in Sec. 325.2(g). (3) Credit-enhancing representations and warranties means representations and warranties that are made or assumed in connection with a transfer of assets (including loan servicing assets) and that obligate the bank to protect investors from losses arising from credit risk in the assets transferred or the loans serviced. Credit-enhancing representations and warranties include promises to protect a party from losses resulting from the default or nonperformance of another party or from an insufficiency in the value of the collateral. Credit-enhancing representations and warranties do not include: (i) Early default clauses and similar warranties that permit the return of, or premium refund clauses covering, 1-4 family residential first mortgage loans that qualify for a 50 percent risk weight for a period not to exceed 120 days from the date of transfer. These warranties may cover only those loans that were originated within 1 year of the date of transfer; (ii) Premium refund clauses that cover assets guaranteed, in whole or in part, by the U.S. Government, a U.S. Government agency or a government-sponsored enterprise, provided the premium refund clauses are for a period not to exceed 120 days from the date of transfer; or (iii) Warranties that permit the return of assets in instances of misrepresentation, fraud or incomplete documentation. [[Page 56583]] (4) Direct credit substitute means an arrangement in which a bank assumes, in form or in substance, credit risk associated with an on-or off-balance sheet credit exposure that was not previously owned by the bank (third-party asset) and the risk assumed by the bank exceeds the pro rata share of the bank's interest in the third- party asset. If the bank has no claim on the third-party asset, then the bank's assumption of any credit risk with respect to the third party asset is a direct credit substitute. Direct credit substitutes include, but are not limited to: (i) Financial standby letters of credit, which includes any letter of credit or similar arrangement, however named or described, that support financial claims on a third party that exceed a bank's pro rata share of losses in the financial claim; (ii) Guarantees, surety arrangements, credit derivatives, and irrevocable guarantee-type instruments backing financial claims such as outstanding loans, or other financial claims, or that back off- balance-sheet items against which risk-based capital must be maintained; (iii) Purchased subordinated interests or securities that absorb more than their pro rata share of credit losses from the underlying assets. Purchased subordinated interests that are credit-enhancing interest-only strips are subject to the higher capital charge specified in section II.B.5.(f) of this appendix A; (iv) Entering into a credit derivative contract under which the bank assumes more than its pro rata share of credit risk on a third party asset or exposure; (v) Loans or lines of credit that provide credit enhancement for the financial obligations of an account party; (vi) Purchased loan servicing assets if the servicer: (A) Is responsible for credit losses with the loans being serviced, (B) Is responsible for making servicer cash advances (unless the advances are not direct credit substitutes because they meet the conditions specified in section II.B.5(a)(9) of this appendix A), or (C) Makes or assumes credit-enhancing representations and warranties with respect to the loans serviced; and (vii) Clean-up calls on third party assets. Clean-up calls that are exercisable at the option of the bank (as servicer or as an affiliate of the servicer) when the pool balance is 10 percent or less of the original pool balance are not direct credit substitutes. (viii.) Liquidity facilities extended to ABCP programs that are not eligible liquidity facilities (as defined in section II.B.5.a. of this appendix). (5) Early amortization triggers mean contractual requirements that, if triggered, would cause a securitization to begin repaying investors prior to the originally scheduled payment dates. (6) Eligible liquidity facility means a facility subject to a reasonable asset quality test at the time of draw that precludes funding against assets in the ABCP program that are 60 days or more past due or in default. In addition, if the assets that an eligible liquidity facility is required to fund against are externally rated exposures at the inception of the facility, the facility can be used to fund only those exposures that are externally rated investment grade at the time of funding. Furthermore, an eligible liquidity facility must contain provisions that, prior to any draws, reduces the bank's funding obligation to cover only those assets that would meet the funding criteria under the facility's asset quality tests. (7) Excess spread means gross finance charge collections and other income received by the trust or special purpose entity (SPE) minus certificate interest, servicing fees, charge-offs, and other trust or SPE expenses. (8) Externally rated means that an instrument or obligation has received a credit rating from a nationally-recognized statistical rating organization. (9) Face amount means the notional principal, or face value, amount of an off-balance sheet item; the amortized cost of an asset not held for trading purposes; and the fair value of a trading asset. (10) Financial asset means cash or other monetary instrument, evidence of debt, evidence of an ownership interest in an entity, or a contract that conveys a right to receive or exchange cash or another financial instrument from another party. (11) Financial standby letter of credit means a letter of credit or similar arrangement that represents an irrevocable obligation to a third-party beneficiary: (i) To receive money borrowed by, or advanced to, or advanced to, or for the account of, a second party (the account party), or (ii) To make payment on behalf of the account party, in the event that the account party fails to fulfill its obligation to the beneficiary. (12) Mortgage servicer cash advance means funds that a residential mortgage servicer advances to ensure an uninterrupted flow of payments or the timely collection of residential mortgage loans, including disbursements made to cover foreclosure costs or other expenses arising from a mortgage loan to facilitate its timely collection. A mortgage servicer cash advance is not a recourse obligation or a direct credit substitute if: (i) The mortgage servicer is entitled to full reimbursement or, for any one residential mortgage loan, nonreimbursable advances are contractually limited to an insignificant amount of the outstanding principal on that loan, and (ii) the servicer's entitlement to reimbursement in not subordinated. (13) Nationally recognized statistical rating organization (NRSRO) means an entity recognized by the Division of Market Regulation of the Securities and Exchange Commission (or any successor Division) (Commission) as a nationally recognized statistical rating organization for various purposes, including the Commission's uniform net capital requirements for brokers and dealers (17 CFR 240.15c3-1). (14) Recourse means an arrangement in which a bank retains, in form or in substance, of any credit risk directly or indirectly associated with an asset it has sold (in accordance with generally accepted accounting principles) that exceeds a pro rata share of the bank's claim on the asset. If a bank has no claim on an asset it has sold, then the retention of any credit risk is recourse. A recourse obligation typically arises when an institution transfers assets in a sale and retains an obligation to repurchase the assets or absorb losses due to a default of principal or interest or any other deficiency in the performance of the underlying obligor or some other party. Recourse may exist implicitly where a bank provides credit enhancement beyond any contractual obligation to support assets it has sold. The following are examples of recourse arrangements: (i) Credit-enhancing representations and warranties made on the transferred assets; (ii) Loan servicing assets retained pursuant to an agreement under which the bank: (A) Is responsible for losses associated with the loans being serviced, (B) Is responsible for making mortgage servicer cash advances (unless the advances are not a recourse obligation because they meet the conditions specified in section II.B.5(a)(12) of this appendix A), or (C) Makes or assumes credit-enhancing representations and warranties on the serviced loans; (iii) Retained subordinated interests that absorb more than their pro rata share of losses from the underlying assets; (iv) Assets sold under an agreement to repurchase, if the assets are not already included on the balance sheet; (v) Loan strips sold without contractual recourse where the maturity of the transferred portion of the loan is shorter than the maturity of the commitment under which the loan is drawn; (vi) Credit derivative contracts under which the bank retains more than its pro rata share of credit risk on transferred assets; and (vii) Clean-up calls. Clean-up calls that are exercisable at the option of the bank (as servicer or as an affiliate of the servicer) when the pool balance is 10 percent or less of the original pool balance are not recourse arrangements. (viii.) Liquidity facilities extended to ABCP programs that are not eligible liquidity facilities (as defined in section II.B.5.a. of this appendix). (15) Residual interest means any on-balance sheet asset that represents an interest (including a beneficial interest) created by a transfer that qualifies as a sale (in accordance with generally accepted accounting principles) of financial assets, whether through a securitization or otherwise, and that exposes a bank to credit risk directly or indirectly associated with the transferred assets that exceeds a pro rata share of the bank's claim on the assets, whether through subordination provisions or other credit enhancement techniques. Residual interests generally include credit-enhancing I/ Os, spread accounts, cash collateral accounts, retained subordinated interests, other forms of over-collateralization, and similar assets that function as a credit enhancement. Residual interests further include those exposures that, in substance, cause the bank to retain the credit risk of an asset or exposure that had qualified as a residual interest before it was sold. Residual interests generally do not include interests purchased [[Page 56584]] from a third party, except that purchased credit-enhancing I/Os are residual interests. (16) Revolving retail credit facility means an exposure to an individual where the borrower is permitted to vary both the drawn amount and the amount of repayment within an agreed limit under a line of credit (such as credit card accounts). Revolving retail credits include business credit card accounts. (17) Risk participation means a participation in which the originating party remains liable to the beneficiary for the full amount of an obligation (e.g., a direct credit substitute) notwithstanding that another party has acquired a participation in that obligation. (18) Securitization means the pooling and repackaging by a special purpose entity of assets or other credit exposures into securities that can be sold to investors. Securitization includes transactions that generally create stratified credit risk positions whose performance is dependent upon an underlying pool of credit exposures, including loans and commitments. (19) Sponsor means a bank that establishes an asset-backed commercial paper program; approves the sellers permitted to participate in the program; approves the asset pools to be purchased by the program; or administers the asset-backed commercial paper program by monitoring the assets, arranging for debt placement, compiling monthly reports, or ensuring compliance with the program documents and with the program's credit and investment policy. (20) Structured finance program means a program where receivable interests and asset-backed securities issued by multiple participants are purchased by a special purpose entity that repackages those exposures into securities that can be sold to investors. Structured finance programs allocate credit risks, generally, between the participants and credit enhancement provided to the program. (21) Traded position means a position or asset-backed security that is retained, assumed or issued in connection with a securitization that is externally rated, where there is a reasonable expectation that, in the near future, the rating will be relied upon by (i) Unaffiliated investors to purchase the position; or (ii) An unaffiliated third party to enter into a transaction involving the position, such as a purchase, loan, or repurchase agreement. * * * * * (h) Early Amortization Triggers. i. A bank that originates securitizations of revolving retail credit facilities that contain early amortization triggers must incorporate the off-balance sheet portion of such a securitization (that is, the investors' interest) into the bank's risk-weighted assets by multiplying the outstanding principal amount of the investors' interest by the appropriate credit conversion factor and then assigning the resultant credit equivalent amount to the appropriate risk weight category. The credit conversion factor to be applied to such a securitization generally is a function of the securitizations' most recent three- month average excess spread level, the point at which excess spread in the securitization must be trapped in a spread or reserve account, and the excess spread level at which an early amortization of the securitization is triggered. ii. In order to determine the appropriate credit conversion factor to be applied to the outstanding principal balance of the investors' interest, the originating bank must compare the securitization's most recent three-month average excess spread level against the difference between the point at which the bank is required by the securitization documents to divert and trap excess spread (spread trapping point) in a spread or reserve account and the excess spread level at which early amortization of the securitization is triggered (early amortization trigger). The difference between the spread trapping point and the early amortization trigger is referred to as the excess spread differential (ESD). In a securitization of revolving retail credit facilities that employs the concept of excess spread to determine when an early amortization is triggered but where the securitization's transaction documents do not require excess spread to be diverted to a spread or reserve account at a certain level, the ESD is deemed to be 4.5 percentage points. iii. If a securitization of revolving retail credit facilities does not employ the concept of excess spread as the transaction's determining factor of when an early amortization is triggered, then a 10 percent credit conversion factor is applied to the outstanding principal balance of the investors' interest at the securitization's inception. iv. The ESD must then be divided to create four equal ESD segments. For example, when the ESD is 4.5 percent, this amount is divided into 4 equal ESD segments of 112.5 basis points. A credit conversion factor of zero percent would be applied to the outstanding principal balance of the investors' interest if the securitization's three-month average excess spread equaled or exceeded a securitization's spread trapping point (4.5 percent in the example). Credit conversion factors of 5 percent, 10 percent, 50 percent, and 100 percent are then assigned to each of the four equal ESD segments in descending order beginning at the spread trapping point as the securitization approaches early amortization. For instance, when the ESD is 4.5 percent, the credit conversion factors would be applied to the outstanding balance of the investors' interest as follows: Example of Credit Conversion Factor Assignment by Segment of Excess Spread Differential
                Segment of excess spread differential Credit conversion
factor (percent)
450 bp or more  0
Less than 450 bp to 337.5 bp  5
Less than 337.5 bp to 225 bp  10
Less than 225 bp to 112.5 bp  50
Less than 112.5 bp  100

i. Limitations on risk-based capital requirements. * * * (4) For a bank subject to the early amortization treatment in section III.B.3.g. of this appendix, the total risk-based capital requirement for all of the bank's exposures to a securitization of revolving retail credit facilities is limited to the greater of the risk-based capital requirement for residual interests, as defined in section III.B.3.a. of this appendix, or the risk-based capital requirement for the underlying securitized assets calculated as if the bank continued to hold the assets on its balance sheet. * * * * * 6. Asset-backed commercial paper programs. a. An asset-backed commercial paper (ABCP) program typically is a program through which a bank provides funding to its corporate customers by sponsoring and administering a bankruptcy-remote special purpose entity that purchases asset pools from, or extends loans to, the bank's customers. The ABCP program raises the cash to provide the funding through the issuance of commercial paper in the market. b. A bank that qualifies as a primary beneficiary and must consolidate an ABCP program that is defined as a variable interest entity under GAAP may exclude the consolidated ABCP program assets from risk-weighted assets provided that the bank is the sponsor of the consolidated ABCP program. If a bank excludes such consolidated ABCP program assets, the bank must assess the appropriate risk-based capital charge against any risk exposures of the bank arising in connection with such ABCP programs, including direct credit substitutes, recourse obligations, residual interests, liquidity facilities, and loans, in accordance with sections II.B.5, II.C. and II.D. of this appendix. * * * * * II. * * * D. * * * 2. Items With a 50 Percent Conversion Factor. * * * * * * * * c. Commitments, for risk-based capital purposes, are defined as any legally binding arrangements that obligate a bank to extend credit in the form of loans or lease financing receivables; to purchase loans, securities, or other assets; or to participate in loans and leases. Commitments also include overdraft facilities, revolving credit, home equity and mortgage lines of credit, eligible liquidity facilities to asset-backed commercial paper programs (in form and in substance), and similar transactions. Normally, commitments involve a written contract or agreement and a commitment fee, or some other form of consideration. Commitments are included in weighted-risk assets regardless of whether they contain material adverse change clauses or other provisions that are intended to relieve the issuer of its funding obligation under certain conditions. Banks that are subject to the market risk rules are required to convert the notional amount of long-term covered positions carried in the trading account that act as eligible liquidity facilities to ABCP programs, in form or in substance, at 50 percent to determine the appropriate [[Page 56585]] credit equivalent amount for those facilities even though they are structured or characterized as derivatives or other trading book assets. * * * * * 3. Items with a 20 percent conversion factor. * * * a. * * * b. Undrawn portions of eligible liquidity facilities with an original maturity of one year or less that banks provide to asset- backed commercial paper (ABCP) programs also are converted at 20 percent. The resulting credit equivalent amount is then assigned to the risk category appropriate to the underlying assets or the obligor, after consideration of any collateral or guarantees, or external credit ratings, if applicable. Banks that are subject to the market risk rules are required to convert the notional amount of short-term covered positions carried in the trading account that act as eligible liquidity facilities to ABCP programs, in form or in substance, at 20 percent to determine the appropriate credit equivalent amount for those facilities even though they are structured or characterized as derivatives or other trading book assets. Liquidity facilities extended to ABCP programs that do not meet the following criteria are to be considered recourse obligations or direct credit substitutes and assessed the appropriate risk-based capital requirement in accordance with section II.B.5. of this appendix. Eligible liquidity facilities must be subject to a reasonable asset quality test at the time of draw that precludes funding against assets in the ABCP program that are 60 days or more past due or in default. In addition, if the assets that eligible liquidity facilities are required to fund against are externally rated exposures, the facility can be used to fund only those exposures that are externally rated investment grade at the time of funding. Furthermore, eligible liquidity facilities must contain provisions that, prior to any draws, reduces the bank's funding obligation to cover only those assets that would meet the funding criteria under the facilities' asset quality tests. * * * 4. * * * These include unused portions of commitments, with the exception of eligible liquidity facilities provided to ABCP programs, with an original maturity of one year or less, or which are unconditionally cancelable at any time, provided a separate credit decision is made before each drawing under the facility. * * * * * * * * 3. In appendix C to part 325, add two new sentences to the end of section 2.(a) to read as follows: Appendix C to Part 325--Risk-Based Capital for State Non-Member Banks; Market Risk Section 2. Definitions. (a) * * * Covered positions exclude all positions in a bank's trading account that, in form or in substance, act as eligible liquidity facilities (as defined in section II.B.5.a. of appendix A of this part), to asset-backed commercial paper programs (as defined in section II.B.6. of appendix A of this part). Such excluded positions are subject to the risk-based capital requirements set forth in appendix A of this part. * * * * * Dated at Washington, DC, this 5th day of September 2003. By order of the Board of Directors. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Chapter V Authority and Issuance For the reasons set out in the preamble, part 567 of chapter V of title 12 of the Code of Federal Regulations is proposed to be amended as follows: PART 567--CAPITAL 1. The authority citation for part 567 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828 (note). 2. Section 567.1 is amended by adding definitions of early amortization trigger, excess spread, qualifying liquidity facility, and revolving retail credit in alphabetical order to read as follows: Sec. 567.1 Definitions. * * * * * Early amortization trigger. The term early amortization trigger means a contractual requirement that, if triggered, would cause a securitization to begin repaying investors prior to the originally scheduled payment dates. * * * * * Excess spread. The term excess spread means gross finance charge collections and other income received by the trust or special purpose entity minus certificate interest, servicing fees, charge-offs, and other trust or special purpose entity expenses. * * * * * Qualifying liquidity facility. The term qualifying liquidity facility means a liquidity facility provided to an ABCP program provided that: (1) At the time of the draw, the liquidity facility must be subject to a reasonable asset quality test that precludes funding against or purchase of assets from the ABCP program that are 60 days or more past due or in default; (2) If the assets that the liquidity facility is required to fund are externally rated securities, (at the time they are transferred into the program) the facility can be used to fund only exposures that are externally rated investment grade at the time of funding; and (3) The liquidity facility must provide that, prior to any draws, the savings association's funding obligation is reduced to cover only those assets that satisfy the funding criteria under the asset quality test of the liquidity facility. * * * * * Revolving retail credit. The term revolving retail credit means an exposure to an individual or a business where the borrower is permitted to vary both the drawn amount and the amount of repayment within an agreed limit under a line of credit (such as personal or business credit card accounts). * * * * * 3. Amend Sec. 567.5 by revising paragraph (a)(1)(iii) to read as follows: Sec. 567.5 Components of capital. (a) * * * (1) * * * (iii) Minority interests in the equity accounts of subsidiaries that are fully consolidated. However, minority interests in consolidated ABCP programs sponsored by a savings association are excluded from the association's core capital or total capital base if the consolidated assets are excluded from risk-weighted assets pursuant to Sec. 567.6 (a)(3); * * * * * 4. Amend Sec. 567.6 by: A. Revising paragraph (a)(2)(ii)(B); B. Redesignating paragraph (a)(2)(iii) as paragraph (a)(2)(iii)(A); C. Adding paragraph (a)(2)(iii)(B); D. Revising paragraph (a)(2)(iv)(A); E. Removing paragraph (a)(3)(iv); F. Adding paragraph (b)(9). Sec. 576.6 Risk-based capital credit risk-weight categories. (a) * * * (2) * * * (ii) * * * (B) Unused portions of commitments, including home equity lines of credit and qualifying liquidity facilities with an original maturity exceeding one year except those listed in paragraph (a)(2)(iv) of this section; and * * * * * (iii) 20 percent credit conversion factor (Group C). * * * (B) Undrawn portions of qualifying liquidity facilities with an original maturity of one year or less that a savings association provides to ABCP programs. (iv) Zero percent credit conversion factor (Group D). (A) Unused commitments, with the exception of liquidity facilities provided to ABCP [[Page 56586]] programs, with an original maturity of one year or less. * * * * * (b) * * * (9) Early amortization. (i) A savings association that originates a securitization of revolving retail credits that contains early amortization triggers must risk weight the off-balance sheet portion of such a securitization (investors' interest) by multiplying the outstanding principal amount of the investors' interest by the appropriate credit conversion factor as provided by paragraph (b)(9)(ii) or (iii) of this section and then assigning the resultant credit equivalent amount to the appropriate risk weight category. (ii) Calculation of credit conversion factor. (A) The credit conversion factor to be applied to such a securitization generally is a function of the securitizations' most recent three-month average excess spread level, the point at which excess spread in the securitization must be trapped in a spread or reserve account (spread trapping point), and the excess spread level at which an early amortization of the securitization is triggered (early amortization trigger). This difference between the spread trapping point and the early amortization trigger is the excess spread differential. (B) The excess spread differential must then be divided by four to create the standard excess spread differential value. This value will be used to determine the appropriate credit conversion factor in accordance with Table D of this section. The upper and lower bounds for each of the excess spread differential segments is calculated using the spread trapping point and the standard excess spread differential value in accordance with the formulas provided in Table D of this section. However, if the securitization documents do not require excess spread to be diverted to a spread or reserve account at a certain level, the excess spread differential is equal to 4.5 percentage points. (C) (1) If the three-month average excess spread equals or exceeds the securitization's spread trapping point, then the credit conversion factor is equal to zero. If the three-month average excess spread is less than the spread trapping point, then the credit conversion factors (5 percent, 10 percent, 50 percent, and 100 percent) are then assigned to each of the four equal excess spread differential segments in descending order, beginning at the spread trapping point as the securitization approaches early amortization, in accordance with Table D of this section. (2) If the securitization does not use the excess spread as an early amortization trigger, then a 10 percent credit conversion factor is applied to the current outstanding principal balance of the investors' interest. monty Table D.--Calculation of Credit Conversion Factors for Early Amortizations
Excess spread differential segments Excess Spread Ranges Credit conversion factor (percent)
1.  empty cell Excess spread equals or exceeds the spread trapping point     0
2. empty cell     Upper Bound < Spread Trapping Point             
    Lower Bound = Spread Trapping Point--(1 x SESDV)
 5
3. empty cell     Upper Bound < Spread Trapping Point--(1 x SESDV)            
    Lower Bound = Spread Trapping Point--(2 x SESDV)
10
4. empty cell     Upper Bound < Spread Trapping Point--(2 x SESDV)....             
    Lower Bound = Spread Trapping Point--(3 x SESDV)
50
5. empty cell     Upper Bound < Spread Trapping Point--(3 x SESDV)            
    Lower Bound = None
 100
 Note: SESDV is the standard excess spread differential value.
 

    (iii) Limitations on risk-based capital requirements. For a savings 
association subject to the early amortization requirements in paragraph 
(b)(9) of this section, the total risk-based capital requirement for 
all of the savings association's exposures to a securitization of 
revolving retail credits is limited to the greater of the risk-based 
capital requirement for residual interests or the risk-based capital 
requirement for the underlying securitized assets calculated as if the 
savings association continued to hold the assets on its balance sheet.
* * * * *

    Dated: September 9, 2003.

    By the Office of Thrift Supervision.
James E. Gilleran,
Director.
[FR Doc. 03-23757 Filed 9-30-03; 8:45 am]

BILLING CODE 4801-01-P

    

    
Last Updated 10/01/2003 regs@fdic.gov