Federal Register: April 26, 2004 (Volume 69, Number 80)
DOCID: FR Doc 04-9361
DEPARTMENT OF THE TREASURY
Thrift Supervision Office
CFR Citation: 12 CFR Part 3
Docket ID: [Docket No. 04-10]
RIN ID: RIN 1557-AC76
NOTICE: RULES
ACTION: Risk-based capital:
DOCUMENT ACTION: Interim final rule; extension of applicability date.
SUBJECT CATEGORY:
FEDERAL RESERVE SYSTEM
DATES: Effective Date: This interim final rule is effective April 26, 2004.
DOCUMENT 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 extending the applicability date in
the interim final rule on the capital treatment of consolidated asset
backed commercial paper (ABCP) programs that was issued on October 1, 2003 (68 FR 56530)
[[Page 22383]]
(October 2003 interim final rule). The October 2003 interim final rule
amended the agencies' riskbased capital standards by providing an
interim capital treatment for assets in ABCP programs that are
consolidated onto the balance sheets of sponsoring banks, bank holding
companies, and thrifts (collectively, sponsoring banking organizations)
as a result of Financial Accounting Standards Board Interpretation No.
46, Consolidation of Variable Interest Entities (FIN 46). The interim
capital treatment that is being extended allows a sponsoring banking
organization to remove the consolidated ABCP program assets from risk
weighted assets for the purpose of calculating its riskbased capital
ratios. The October 2003 interim final rule indicated that the capital
treatment is applicable only for the regulatory reporting periods
ending September 30 and December 31, 2003, and March 31, 2004. This
extension permits affected institutions to apply the designated capital
treatment through July 1, 2004.
SUMMARY:
Consolidated asset-backed commercial paper program assets; interim capital treatment,
DOCUMENT BODY 2:
12 CFR Parts 208 and 225
[Regulations H and Y; Docket No. R1156]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 325
RIN 3064AC74
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 567
[No. 200415]
RIN 1550AB79
RiskBased Capital Guidelines; Capital Adequacy Guidelines;
Capital Maintenance: Interim Capital Treatment of Consolidated Asset
Backed Commercial Paper Program Assets; Extension
SUPPLEMENTAL INFORMATION
In January 2003, the Financial Accounting
Standards Board (FASB) issued interpretation No. 46, ``Consolidation of
Variable Interest Entities'' (FIN 46), which requires the consolidation
of variable interest entities (VIEs) onto the balance sheets of
companies deemed to be the primary beneficiaries of those entities.\1\
On December 23, 2003, the FASB published interpretation 46R (FIN 46
R), which revised FIN 46 to clarify some of the provisions of FIN 46
and to exempt certain entities from its requirements. FIN 46R (and its
predecessor FIN 46) resulted in the consolidation of many ABCP programs
onto the balance sheets of sponsoring banking organizations beginning
in the third quarter of 2003. In contrast, under preFIN 46 accounting
standards, banking organizations normally were not required to
consolidate the assets of these programs. Where a banking organization
is required to consolidate ABCP program assets under FIN 46 it must
include all of the program assets (mostly receivables and securities)
and liabilities (mainly commercial paper) on its 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 Y9C Report).
\1\ 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, legalform
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. The stakeholder
who holds the majority of the entity's risks or rewards is the primary beneficiary and must consolidate the VIE.
The agencies believe that the consolidation of ABCP program assets onto the balance sheets of a sponsoring banking organization could result in riskbased capital requirements that are excessive in light of the risks faced by that organization. Accordingly, the agencies published the October 2003 interim final rule providing temporary capital relief for sponsoring banking organizations with assets in ABCP programs that are consolidated onto the balance sheets of those organizations as a result of FIN 46. See 68 FR 56530 (October 1, 2003). The agencies requested public comment on the October 2003 interim final rule. The comment period closed November 17, 2003. The agencies' October 2003 interim final rule became effective on October 1, 2003, and the applicability of the capital treatment guidelines expired on April 1, 2004 (April 1st sunset date).
In addition, the agencies received comments on a notice of proposed rulemaking (68 FR 56568) (proposed rule) issued concurrently with the October 2003 interim final rule. That rulemaking proposed capital charges on certain ABCP conduit exposures and indicated that the October 2003 interim final rule would not be finalized until the issues addressed in the proposed rule were resolved. The agencies are continuing to work on developing a more risksensitive approach to dealing with exposures to ABCP conduits, taking into account comments received on the proposed rule.
Because the agencies have not yet fully resolved issues addressed in the proposed rule, especially those related to banking organization exposures to ABCP conduits, they are amending the October 2003 interim final rule to extend the April 1st sunset date to July 1, 2004. The agencies believe that an explicit extension of the April 1st sunset date is necessary in order to eliminate potential industry confusion and uncertainty with respect to the calculation of regulatory capital ratios pending the issuance of a final rule.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act, the agencies have determined that this interim final 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.). For purposes of the Regulatory Flexibility Act, ``small entities'' are banking organizations having assets of $150 million or less. There are approximately 18 sponsoring banking organization for purposes of this interim final rule, and all of them are well over that asset size threshold. Accordingly, a regulatory flexibility analysis is not required. In addition, the interim final rule would reduce regulatory burden with respect to the agencies' risk based capital standards.
Administrative Procedure Act
The Agencies find that there is good cause to dispense with prior notice and public comment on this interim final rule and with the 30 day delay of effective date generally prescribed by the Administrative Procedure Act (APA). 5 U.S.C 553.
Under section 553(b) of the APA, the agencies are not required to provide notice and an opportunity for public
[[Page 22384]]
comment on a rule if they find, for good cause, that notice and comment
are ``impracticable, unnecessary or contrary to the public interest.''
The agencies find that notice and public comment are unnecessary
because the agencies have given the public a prior opportunity to
comment on the substance of the October 2003 interim final rule, which
is to preserve the preexisting nonconsolidated riskbased capital
treatment for sponsoring banking organizations pending the agencies'
determination of the capital charge appropriate to certain ABCP conduit
exposures. Most commenters favored this result. This extension of the
effective date merely provides additional time for the agencies to
complete that process. Further, the agencies find that further notice
and public comment are not in the public interest because a failure to
extend the April 1st sunset date could create confusion regarding the
calculation of regulatory capital ratios pending the issuance of a
final rule. The agencies also find that it is impracticable to provide
an additional opportunity for comment before the April 1, 2004
expiration date established by the October 2003 interim rule.
Under section 553(d) of the APA, the agencies must generally provide a 30day delayed effective date for final rules. The agencies may waive the 30day delayed effective date requirement ``for good cause found and published with the rule.'' Similarly, section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI), requires a banking agency to make a rule effective on the first day of the calendar quarter that begins on or after the date on which the regulations are published in final form, unless the agency finds good cause for an earlier effective date. 12 U.S.C. 4802(b)(1). The agencies find that there is good cause to waive the two effective date requirements because a failure to extend the April 1st sunset date could create confusion and uncertainty regarding the calculation of regulatory capital ratios pending the issuance of a final rule. Further, the purpose of the APA and CDRI delayed effective date provisions is to afford affected persons a reasonable time to comply with rule changes. Because institutions have complied with the requirements since October 2003, it is not necessary to delay the effective date to achieve this purpose.
Paperwork Reduction Act
The agencies have determined that this interim final 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 and OTS: Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 1044 (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. This interim final rule is designed to temporarily offset the effect on riskbased capital ratios of FIN 46 with respect to ABCP programs. The OCC and OTS have determined that this interim final rule will not result in expenditures by State, local, or tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, section 202 of the Unfunded Mandates Act does not require the OCC or OTS to prepare a budgetary impact statement for this interim final rule.
Executive Order 12866
The Director of the OTS and the Comptroller of the OCC have
determined that this interim final rule does not constitute a
``significant regulatory action'' for the purposes of Executive Order 12866.
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 nonmember 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 I
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 3MINIMUM 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.
Appendix A to Part 3[Amended]
2. In Appendix A to part 3:
a. In section 2, paragraph (a)(3)(ii), remove ``April 1'' and add ``July 1'' in its place; and
b. In section 4, paragraphs (j)(4) and (k)(2), remove ``April 1'' and add ``July 1'' in its place.
Dated: April 9, 2004.
John D. Hawke, Jr.,
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 amends parts 208 and 225 of chapter II of title 12 of the Code of Federal Regulations as follows:
PART 208MEMBERSHIP 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), 321338a,
371d, 461, 481486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 1823(j),
1828(o), 1831, 1831o, 1831p1, 1831r1, 1831w, 1831x, 1835a, 1882,
29012907, 3105, 3310, 33313351, and 39063909; 15 U.S.C. 78b,
78l(b), 78l(g), 78l(i), 78o4(c)(5), 78q, 78q1, and 78w; 31 U.S.C. 5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106, and 4128.
[[Page 22385]]
Appendix A to Part 208[Amended]
2. In Appendix A to part 208, the following amendments are made:
a. In section II.A.1.c., remove ``April 1'' and add ``July 1'' in its place; and
b. In section III.B.6.c., remove ``April 1'' and add ``July 1'' in its place.
PART 225BANK 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, 1831p1,
1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 33313351, 3907, and 3909; 15 U.S.C. 6801 and 6805.
Appendix A to Part 225[Amended]
2. In Appendix A to part 225, the following amendments are made:
a. In section II.A.1.c., remove ``April 1'' and add ``July 1'' in its place; and
b. In section III.B.6.c., remove ``April 1'' and add ``July 1'' in its place.
By order of the Board of Governors of the Federal Reserve System, April 16, 2004.
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 amends part 325 of chapter
III of title 12 of the Code of Federal Regulations as follows: PART 325CAPITAL 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. 102233, 105 Stat.
1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102242, 105 Stat.
2236, 2355, as amended by Pub. L. 103325, 108 Stat. 2160, 2233 (12
U.S.C. 1828 note); Pub. L. 102242, 105 Stat. 2236, 2386, as amended
by Pub. L. 102550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note). Appendix A to Part 325[Amended]
2. In Appendix A to part 325, the following amendments are made:
a. In section I.A.1.iii.e., remove ``April 1'' and add ``July 1'' in its place; and
b. In section II.B.6.c., remove ``April 1'' and add ``July 1'' in its place.
By order of the Board of Directors.
Dated at Washington, DC, this 6th day of April, 2004. 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 amended as follows: PART 567CAPITAL
1. The authority citation for part 567 continues to read as follows:
Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828 (note).
567.5 [Amended]
2. In Sec. 567.5(a)(1)(iii), remove ``April 1'' and add ``July 1'' in its place.
567.6 [Amended]
3. In Sec. 567.6, paragraphs (a)(3)(iv) and (a)(4)(ii), remove ``April 1'' and add ``July 1'' in its place.
Dated: March 30, 2004.
By the Office of Thrift Supervision.
Richard M. Riccobono,
Acting Director.
[FR Doc. 049361 Filed 42304; 8:45 am]
BILLING CODE 481033P