[Federal Register: December 5, 2000 (Volume 65, Number 234)]
[Rules and Regulations]
[Page 75856-75859]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de00-2]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 3
[Docket No. 00-28]
RIN 1557-AB14
FEDERAL RESERVE SYSTEM
12 CFR Parts 208 and 225
[Regulation H and Y; Docket No. R-1087]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 325
RIN 3064-AC46
Risk-Based Capital Guidelines; Market Risk Measure; Securities
Borrowing Transactions
AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of
Governors of the Federal Reserve System; and Federal Deposit Insurance
Corporation.
ACTION: Interim rule with request for comment.
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SUMMARY: The Office of the Comptroller of the Currency (OCC), the Board
of Governors of the Federal Reserve System (Board), and the Federal
Deposit Insurance Corporation (FDIC) (collectively, the Agencies) are
issuing an interim rule with a request for comment that amends their
market risk rules to revise the capital treatment for cash collateral
that is posted in connection with certain securities borrowing
transactions. The effect of the interim rule is to more appropriately
align the capital requirements for these transactions with the risk
involved and to provide a capital treatment for U.S. banking
organizations that is more in line with the capital treatment applied
to their domestic and foreign competitors.
DATES: This interim rule is effective January 4, 2001. U.S. banking
organizations may apply the provisions of this interim rule beginning
December 5, 2000. Comments must be received by January 19, 2001.
ADDRESSES: Comments should be directed to:
OCC: Written comments may be submitted electronically to
regs.comments@occ.treas.gov or by mail to Docket No. 00-28, Office of
the Comptroller of the Currency, Public Information Room, 250 E Street,
SW, Mail Stop 1-5, Washington, DC 20219. Comments will be available for
inspection and photocopying at that address.
Board: Comments, which should refer to Docket No. R-1087, may be
mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the
Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551,
or mailed electronically to regs.comments@federalreserve.gov. Comments
addressed to Ms. Johnson may be delivered to the Board's mailroom
between 8:45 a.m. and 5:15 p.m., and to the security control room
outside of those hours. Both the mailroom and the security control room
are accessible from the courtyard entrance on 20th Street between
Constitution Avenue and C Street, NW. Comments may be inspected in Room
MP-500 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.
FOR FURTHER INFORMATION CONTACT:
OCC: Roger Tufts, Senior Economic Advisor, Capital Policy (202)
874-5070, or Ron Shimabukuro, Senior Attorney, Legislative and
Regulatory Activities Division (202) 874-5090, Office of the
Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219.
Board: Norah Barger, Assistant Director (202/452-2402), or David
Adkins, Supervisory Financial Analyst (202/452-5259), Division of
Banking Supervision and Regulation. For the hearing impaired only,
Telecommunication Device for the Deaf (TDD), Janice Simms (202/872-
4984), Board of Governors of the Federal Reserve System, 20th and C
Streets, NW, Washington, DC 20551.
FDIC: Stephen G. Pfeifer, Examination Specialist (202/898-8904),
Accounting Section, Division of Supervision; Michael B. Phillips,
Counsel, (202/898-3581), Legal Division, Federal Deposit Insurance
Corporation, 550 17th Street, NW, Washington, DC 20429.
SUPPLEMENTARY INFORMATION: Securities borrowing transactions were not
specifically addressed in the July 1988 agreement entitled
``International Convergence of Capital Measurement and Capital
Standards'' (Basel Accord), nor in the risk-based capital guidelines
adopted by the Agencies in 1989.\1\ At that time, the involvement of
U.S. banking organizations in corporate debt and equity securities
trading activities was limited. However, in recent years, U.S. banking
organizations have experienced a rapid growth of such activities, and
it is recognized that securities borrowing transactions serve an
important function in the operation of securities markets. Securities
borrowings are used in conjunction with short sales, securities fails
(securities sold but not made available for delivery on the settlement
date), and option and arbitrage positions. Securities are also borrowed
in order to be pledged against public fund deposits. Securities
borrowing enhances market efficiency and provides an important source
of liquidity to the securities markets.
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\1\ The Basel Accord was developed by the Basel Committee on
Banking Supervision and endorsed by the central bank governors of
the Group of Ten (G-10) countries. The Basel Accord provides a
framework for assessing the capital adequacy of a depository
institution by risk weighting its assets and off-balance sheet
exposures primarily based on credit risk. The Basel Committee on
Banking Supervision consists of representatives of the supervisory
authorities and central banks from the Group of Ten countries
(Belgium, Canada, France, Germany, Italy, Japan, Netherlands,
Sweden, Switzerland, United Kingdom, United States), and Luxembourg.
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In a typical securities borrowing transaction, a party (for
example, a banking organization) needing to borrow securities obtains
the securities from a securities lender and posts collateral in the
form of cash or highly marketable securities with the securities lender
(or an agent acting on behalf of the securities lender) in an amount
that fully covers the value of the securities borrowed plus an
additional margin, usually ranging from two to five percent. In
accordance with U.S. generally accepted accounting principles, cash
collateral posted with the securities lender is treated as a receivable
on the books of the securities borrower (that is, it is treated as a
cash loan from the securities borrower to the securities lender, who is
the obligor). Under the existing capital rules, the securities borrower
must hold capital against the full amount of this receivable, i.e., the
collateral posted. The borrowed securities generally remain on the
balance sheet of the securities lender, and, therefore, no additional
capital charge is incurred by
[[Page 75857]]
the securities borrower. Where a securities borrower posts collateral
in the form of securities that continue to be carried on the borrower's
books, the only capital charge incurred by the borrower under the
present guidelines is that associated with a direct holding of the
securities.
The Agencies recognize that securities borrowing is a long-
established financial activity that historically has resulted in an
exceedingly low level of losses. Applying a standard 100 percent risk
weight to the full amount of the cash collateral posted to support such
borrowings, the Agencies further recognize, results in a capital charge
that is inordinately high, not only in light of the risk involved in
the transactions, but also in comparison to the capital required by
other U.S. and non-U.S. regulators of financial firms for the same
transactions. Further, under the current capital rules, a banking
organization incurs no incremental capital charge when it borrows
securities and posts securities to collateralize the borrowing, even
though it is at risk for the amount by which the collateral exceeds the
value of the securities borrowed.
The Agencies are issuing an interim rule that better reflects the
low risk of securities borrowing and the posting of cash collateral in
connection with such transactions and brings the capital requirements
for U.S. banking organizations into better alignment with the capital
requirements of other U.S. and non-U.S. regulators of financial
institutions.
Specifically, the Agencies are adopting an interim rule that
permits banking organizations under the market risk rules to exclude
from risk-weighted assets receivables arising from the posting of cash
collateral associated with securities borrowing transactions to the
extent such receivables are collateralized by the market value of the
securities borrowed, subject to the following conditions:
1. The transaction is based on securities includable in the trading
book that are liquid and readily marketable;
2. The transaction is marked to market daily;
3. The transaction is subject to daily margin maintenance
requirements, and;
4. The transaction is a securities contract for the purposes of
section 555 of the Bankruptcy Code (11 U.S.C. 555), a qualified
financial contract for the purpose of section 11(e)(8) of the Federal
Deposit Insurance Act (12 U.S.C. 1821(e)(8)), or a netting contract
between or among financial institutions for the purposes of sections
401-407 of the Federal Deposit Insurance Corporation Improvement Act of
1991 (12 U.S.C. 4401-4407), or the Board's Regulation EE (12 CFR Part
231).
Under this treatment, the amount of the receivable created in
connection with the posting of cash collateral in a securities
borrowing transaction that would be excluded from the securities
borrower's adjusted risk-weighted assets is limited to the portion that
is collateralized by the market value of the securities borrowed. The
uncollateralized portion, which equals the difference between the
amount of cash collateral that the securities borrower posts in support
of the borrowing and the current market value of the securities
borrowed, would be assigned to the risk weight appropriate to the
obligor.
The Agencies note that the Basel Accord is currently under
revision. These revisions could result in a more risk-sensitive
treatment for securities borrowing transactions. Accordingly, banking
organizations should be aware that this capital treatment under the
market risk rules is subject to change pending the outcome of the Basel
revisions, which may call for higher capital charges for securities
borrowing and similar transactions.
The Agencies welcome comment on all aspects of this interim rule.
In particular, the Agencies request industry views on the capital
treatment of the posting of securities collateral associated with
securities borrowing transactions. Under the current capital rules and
the interim rule, the posting of securities collateral will continue to
not incur a capital charge even though the securities borrower is at
risk (as it is where cash is posted as collateral) for the amount by
which the securities collateral exceeds the value of the securities
borrowed. The Agencies recognize that a strong case can be made for
achieving a greater consistency between the treatment of the posting of
cash collateral and the posting of securities collateral by requiring a
capital charge on the amount by which the market value of the
securities posted as collateral exceeds the market value of securities
borrowed. This could be accomplished under the present capital
framework, for example, by requiring the difference in the market value
of the securities posted as collateral and that of the securities
borrowed to be treated as a securities lending transaction. Under such
a treatment, the difference would be converted at 100 percent to an on-
balance sheet credit equivalent amount and risk-weighted according to
the obligor. Industry views are sought on whether the Agencies should
seek to further equalize the capital treatment of cash and securities
collateral posted in support of a securities borrowing transaction.
In addition, the Agencies are specifically interested in whether
this revision to the calculation of the capital requirement for
securities borrowing transactions should be limited only to those
banking organizations that have implemented the market risk rules.
Under the interim rule, no reduction in the capital requirement for
these securities borrowing transactions is available to banking
organizations that have not implemented an approved value-at-risk
model. Accordingly, comment is sought on whether the capital treatment
of securities borrowing should be modified within the non-trading
portion of the risk-based capital calculation.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
Agencies have determined that this interim rule would not have a
significant impact on a substantial number of small entities in accord
with the spirit and purposes of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Accordingly, a regulatory flexibility analysis is
not required. The interim rule would reduce regulatory burden. The rule
will only affect banking organizations that operate under the market
risk rules which limits the applicability of the rule to organizations
with significant trading operations. The rule will reduce regulatory
burden for banking organizations that engage in securities borrowing
transactions.
Administrative Procedure Act
Pursuant to section 553 of the Administrative Procedure Act, 5
U.S.C. 553, the Agencies find good cause for issuing this interim rule
in advance of the receipt of comments from interested parties.
Currently, U.S. banking organizations are at a competitive disadvantage
versus certain foreign organizations because of differing capital
treatment for securities borrowing transactions. The Agencies find that
it is contrary to the public interest for U.S. banking organizations to
be subject to more stringent rules (resulting in higher regulatory
capital requirements) than direct competitor institutions outside of
the U.S. that have capital charges determined from rules that are
consistent with the interim rule. This rule relieves a restriction on
banking organizations and fosters consistency among international
institutions prior to year-end, but does not raise safety and soundness
concerns.
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The Agencies are seeking public comment on the interim rule.
Paperwork Reduction Act
The Agencies have determined that this interim 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.).
OCC Unfunded Mandates Reform Act of 1995 Determinations
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law
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. As discussed in the preamble,
this interim rule is limited to banking organizations subject to the
market risk rules and to securities borrowing transactions
collateralized with cash. The OCC, therefore, has determined that the
interim rule will not result in expenditures by State, local, or tribal
governments, or by the private sector of $100 million or more.
Accordingly, the OCC has not prepared a budgetary impact statement or
specifically addressed the regulatory alternatives considered.
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.
Department of 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 amended as follows:
PART 3--MINIMUM CAPITAL RATIOS; ISSUANCE OF DIRECTIVES
1. The authority citation for part 3 continues to read as follows:
Authority: 12 U.S.C. 93a, 161, 1818, 1828(n), 1828 note, 1831n
note, 1835, 3907 and 3909.
2. In appendix A to part 3, in section 3:
a. Revise paragraph (a)(4) introductory text; and
b. Add a new footnote 12a.
Appendix A To Part 3--Risked-Based Capital Guidelines
* * * * *
Section 3. Risk Categories/Weights for On-Balance Sheet Assets and
Off-Balance Sheet Items
* * * * *
(a) * * *
(4) 100 percent risk weight. All other assets not specified
above,\12a\ including:
\12a\ A bank subject to the market risk capital requirements
pursuant to appendix B of this part 3 may calculate the capital
requirement for qualifying securities borrowing transactions
pursuant to section 3(a)(1)(ii) of appendix B of this part 3.
* * * * *
3. In appendix B to part 3, in section 3, revise paragraph (a)(1)
to read as follows:
Appendix B to Part 3--Risk-Based Capital Guidelines; Market Risk
Adjustment
(a) * * *
(1) Adjusted risk-weighted assets. (i) Covered positions.
Calculate adjusted risk-weighted assets, which equal risk-weighted
assets (as determined in accordance with appendix A of this part),
excluding the risk-weighted amount of all covered positions (except
foreign exchange positions outside the trading account and over-the-
counter derivatives positions).\7\
(ii) Securities borrowing transactions. In calculating adjusted
risk-weighted assets, a bank also may exclude a receivable that
results from the bank's posting of cash collateral in a securities
borrowing transaction to the extent that the receivable is
collateralized by the market value of the borrowed securities and
subject to the following conditions:
(A) The borrowed securities must be includable in the trading
account and must be liquid and readily marketable;
(B) The borrowed securities must be marked to market daily;
(C) The receivable must be subject to a daily margining
requirement; and
(D) The securities borrowing transaction must be a securities
contract for purposes of section 555 of the Bankruptcy Code (11
U.S.C. 555741(7)), a qualified financial contract for purposes of
section 11(e)(8) of the Federal Deposit Insurance Act (12 U.S.C.
1821(e)(8)), or a netting contract between or among financial
institutions, for purposes of sections 401-407 of the Federal
Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C.
4401-4407) or Regulation EE (12 CFR Part 231).
* * * * *
\7\ Foreign exchange positions outside the trading account and
all over-the-counter derivative positions, whether or not in the
trading account, must be included in adjusted risk-weighted assets
as determined in appendix A of this part 3.
Dated: November 20, 2000.
John D. Hawke, Jr.,
Comptroller of the Currency.
Federal Reserve System
12 CFR Chapter 11
Authority and Issuance
For the reasons set forth in the joint preamble, part 208 of
chapter II of title 12 of the Code of Federal Regulations is amended as
set forth below:
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, 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, 6801, and 6805; 31 U.S.C.
5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106, and 4128.
2. In appendix E to part 208, under section 3, paragraph (a)(1) is
revised to read as follows:
Appendix E to part 208--Capital Adequacy Guidelines for State
Member Banks; Market Risk Measure
* * * * *
Section 3 Adjustments to the Risk-Based Capital Ratio Calculations
(a) * * *
[[Page 75859]]
(1) Adjusted risk-weighted assets. Calcuate adjusted risk-
weighted assets, which equals risk-weighted assets (as determined in
accordance with appendix A of this part), excluding the risk-
weighted amounts of all covered positions (except foreign exchange
positions outside the trading account and over-the counter
derivative positions) \7\ and receivables arising from the posting
of cash collateral that is associated with securities borrowing
transactions to the extent the receivables are collateralized by the
market value of the borrowed securities, provided that the following
conditions are met:
(i) The transaction is based on securities includable in the
trading book that are liquid and readily marketable,
(ii) The transaction is marked to market daily,
(iii) The transaction is subject to daily margin maintenance
requirements,
(iv) The transaction is a securities contract for the purposes
of section 555 of the Bankruptcy Code (11 U.S.C. 555), a qualified
financial contract for the purposes of section 11(e)(8) of the
Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)), or a netting
contract between or among financial institutions for the purposes of
sections 401-407 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (12 U.S.C. 4401-4407), or the Board's
Regulation EE (12 CFR part 231).
* * * * *
\7\ Foreign exchange positions outside the trading account and
all over-the-counter derivative positions, whether or not in the
trading account, must be included in the adjusted risk weighted
assets asdetermined 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), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3907. and
3909; 15 U.S.C. 6801 and 6805.
2. In appendix E to part 225, under section 3, paragraph (a)(1) is
revised to read as follows:
Appendix E to Part 225--Capital Adequacy Guidelines for Bank
Holding Companies; Market Risk Measure
* * * * *
Section 3. Adjustments to the Risk-Based Capital Ratio Calculations
(a) * * *
(1) Adjusted risk-weighted assets. Calculate adjusted risk-
weighted assets, which equals risk-weighted assets (as determined in
accordance with appendix A of this part), excluding the risk-
weighted amounts of all covered positions (except foreign exchange
positions outside the trading account and over-the-counter
derivative positions) \7\ and receivables arising from the posting
of cash collateral that is associated with securities borrowing
transactions to the extent the receivables are collateralized by the
market value of the borrowed securities, provided that the following
conditions are met:
(i) The transaction is based on securities includable in the
trading book that are liquid and readily marketable,
(ii) The transaction is marked to market daily,
(iii) The transaction is subject to daily margin maintenance
requirements,
(iv) The transaction is a securities contract for the purposes
of section 555 of the Bankruptcy Code (11 U.S.C. 555), a qualified
financial contract for the purposes of section 11(e)(8) of the
Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)), or a netting
contract between or among financial institutions for the purposes of
sections 401-407 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (12 U.S.C. 4401-4407), or the Board's
Regulation EE (12 CFR Part 231).
* * * * *
\7\ Foreign exchange positions outside the trading account and
all over-the-counter derivative positions, whether or not in the
trading account, must be included in the adjusted risk weighted
assets as determined in appendix A of this part.
By order of the Board of Governors of the Federal Reserve
System, November 24, 2000.
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, part 325 of
chapter III of title 12 of the Code of Federal Regulations is amended
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, 2386 (12 U.S.C. 1828 note).
2. In appendix C to part 325, under section 3, paragraph (a)(1) is
revised to read as follows:
Appendix C to Part 325--Risk-Based Capital for State Non-Member
Banks: Market Risk
* * * * *
Section 3. Adjustments to the Risk-Based Capital Ratio Calculations
(a) * * *
* * * * *
(1) Adjusted risk-weighted assets. Calculate adjusted risk-
weighted assets, which equals risk-weighted assets (as determined in
accordance with appendix A of this part), excluding the risk-
weighted amounts of all covered positions (except foreign exchange
positions outside the trading account and over-the-counter
derivative positions) \7\ and receivables arising from the posting
of cash collateral that is associated with securities borrowing
transactions to the extent the receivables are collateralized by the
market value of the borrowed securities, provided that the following
conditions are met:
(i) The transaction is based on securities includable in the
trading book that are liquid and readily marketable,
(ii) The transaction is marked to market daily,
(iii) The transaction is subject to daily margin maintenance
requirements,
(iv) The transaction is a securities contract for the purposes
of section 555 of the Bankruptcy Code (11 U.S.C. 555), a qualified
financial contract for the purposes of section 11(e)(8) of the
Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)), or a netting
contract between or among financial institutions for the purposes of
sections 401-407 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (12 U.S.C. 4401-4407), or the Board's
Regulation EE (12 CFR Part 231).
* * * * *
\7\ Foreign exchange positions outside the trading account and
all over-the-counter derivative positions, whether or not in the
trading account, must be included in the adjusted risk weighted
assets as determined in appendix A of this part.
Dated at Washington, DC, this 21st day of November, 2000.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
James D. LaPierre,
Deputy Executive Secretary.
[FR Doc. 00-30748 Filed 12-4-00; 8:45 am]
BILLING CODE 4810-33-P 6210-01-P 6714-01-P
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