Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets; Market Discipline and Disclosure Requirements

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Vol. 77

Thursday,

No. 169

August 30, 2012

Part III

Department of the Treasury

Office of the Comptroller of the Currency

12 CFR Part 3

Federal Reserve System

12 CFR Part 217

Federal Deposit Insurance Corporation

12 CFR Part 324

Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets;

Market Discipline and Disclosure Requirements; Proposed Rule

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the

Currency

12 CFR Part 3

[Docket ID OCC–2012–0009]

RIN 1557–AD46

FEDERAL RESERVE SYSTEM

12 CFR Part 217

[Regulations H, Q, and Y; Docket No. R–

1442]

RIN 7100 AD 87

FEDERAL DEPOSIT INSURANCE

CORPORATION

12 CFR Part 324

RIN 3064–AD96

Regulatory Capital Rules:

Standardized Approach for Risk-

Weighted Assets; Market Discipline

and Disclosure Requirements

AGENCY: Office of the Comptroller of the

Currency, Treasury; Board of Governors

of the Federal Reserve System; and the

Federal Deposit Insurance Corporation.

ACTION: Joint notice of proposed

rulemaking.

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 seeking

comment on three notices of proposed

rulemaking (NPRs) that would revise

and replace the agencies’ current capital

rules.

This NPR (Standardized Approach

NPR) includes proposed changes to the

agencies’ general risk-based capital

requirements for determining risk-

weighted assets (that is, the calculation

of the denominator of a banking

organization’s risk-based capital ratios)

e seeking

comment on three notices of proposed

rulemaking (NPRs) that would revise

and replace the agencies’ current capital

rules.

This NPR (Standardized Approach

NPR) includes proposed changes to the

agencies’ general risk-based capital

requirements for determining risk-

weighted assets (that is, the calculation

of the denominator of a banking

organization’s risk-based capital ratios).

The proposed changes would revise and

harmonize the agencies’ rules for

calculating risk-weighted assets to

enhance risk-sensitivity and address

weaknesses identified over recent years,

including by incorporating certain

international capital standards of the

Basel Committee on Banking

Supervision (BCBS) set forth in the

standardized approach of the

‘‘International Convergence of Capital

Measurement and Capital Standards: A

Revised Framework’’ (Basel II), as

revised by the BCBS between 2006 and

2009, and other proposals addressed in

recent consultative papers of the BCBS.

In this NPR, the agencies also propose

alternatives to credit ratings for

calculating risk-weighted assets for

certain assets, consistent with section

939A of the Dodd-Frank Wall Street

Reform and Consumer Protection Act of

2010 (Dodd-Frank Act). The revisions

include methodologies for determining

risk-weighted assets for residential

mortgages, securitization exposures, and

counterparty credit risk. The changes in

the Standardized Approach NPR are

proposed to take effect on January 1,

2015, with an option for early adoption.

The Standardized Approach NPR also

would introduce disclosure

requirements that would apply to top-

tier banking organizations domiciled in

the United States with $50 billion or

more in total assets, including

disclosures related to regulatory capital

instruments. In connection with the

proposed changes to the agencies’

capital rules in this NPR, the agencies

are also seeking comment on the two

related NPRs published elsewhere in

today’s Federal Register

ements that would apply to top-

tier banking organizations domiciled in

the United States with $50 billion or

more in total assets, including

disclosures related to regulatory capital

instruments. In connection with the

proposed changes to the agencies’

capital rules in this NPR, the agencies

are also seeking comment on the two

related NPRs published elsewhere in

today’s Federal Register. The two

related NPR’s are discussed further in

the SUPPLEMENTARY INFORMATION.

DATES: Comments must be submitted on

or before October 22, 2012.

ADDRESSES: Comments should be

directed to:

OCC: Because paper mail in the

Washington, DC area and at the OCC is

subject to delay, commenters are

encouraged to submit comments by the

Federal eRulemaking Portal or email, if

possible. Please use the title ‘‘Regulatory

Capital Rules: Standardized Approach

for Risk-weighted Assets; Market

Discipline and Disclosure

Requirements’’ to facilitate the

organization and distribution of the

comments. You may submit comments

by any of the following methods:

• Federal eRulemaking Portal—

‘‘regulations.gov’’: Go to http://

www.regulations.gov. Click ‘‘Advanced

Search.’’ Select ‘‘Document Type’’ of

‘‘Proposed Rule,’’ and in ‘‘By Keyword

or ID’’ box, enter Docket ID ‘‘OCC–

2012–0009,’’and click ‘‘Search.’’ If

proposed rules for more than one

agency are listed, in the ‘‘Agency’’

column, locate the notice of proposed

rulemaking for the OCC. Comments can

be filtered by Agency using the filtering

tools on the left side of the screen. In the

‘‘Actions’’ column, click on ‘‘Submit a

Comment’’ or ‘‘Open Docket Folder’’ to

submit or view public comments and to

view supporting and related materials

for this rulemaking action.

• Click on the ‘‘Help’’ tab on the

Regulations.gov home page to get

information on using Regulations.gov,

including instructions for submitting or

viewing public comments, viewing

other supporting and related materials,

and viewing the docket after the close

of the comment period

’ to

submit or view public comments and to

view supporting and related materials

for this rulemaking action.

• Click on the ‘‘Help’’ tab on the

Regulations.gov home page to get

information on using Regulations.gov,

including instructions for submitting or

viewing public comments, viewing

other supporting and related materials,

and viewing the docket after the close

of the comment period.

• Email:

regs.comments@occ.treas.gov.

• Mail: Office of the Comptroller of

the Currency, 250 E Street SW., Mail

Stop 2–3, Washington, DC 20219.

• Fax: (202) 874–5274.

• Hand Delivery/Courier: 250 E Street

SW., Mail Stop 2–3, Washington, DC

20219.

Instructions: You must include

‘‘OCC’’ as the agency name and ‘‘Docket

ID OCC–2012–0009.’’ In general, OCC

will enter all comments received into

the docket and publish them on the

Regulations.gov Web site without

change, including any business or

personal information that you provide

such as name and address information,

email addresses, or phone numbers.

Comments received, including

attachments and other supporting

materials, are part of the public record

and subject to public disclosure. Do not

enclose any information in your

comment or supporting materials that

you consider confidential or

inappropriate for public disclosure.

You may review comments and other

related materials that pertain to this

notice by any of the following methods:

• Viewing Comments Electronically:

Go to http://www.regulations.gov. Click

‘‘Advanced search.’’ Select ‘‘Document

Type’’ of ‘‘Public Submission’’ and in

‘‘By Keyword or ID’’ box enter Docket ID

‘‘OCC–2012–0009,’’ and click ‘‘Search.’’

If comments from more than one agency

are listed, the ‘‘Agency’’ column will

indicate which comments were received

by the OCC. Comments can be filtered

by Agency using the filtering tools on

the left side of the screen.

• Viewing Comments Personally: You

may personally inspect and photocopy

comments at the OCC, 250 E Street SW.,

Washington, DC 20219

OCC–2012–0009,’’ and click ‘‘Search.’’

If comments from more than one agency

are listed, the ‘‘Agency’’ column will

indicate which comments were received

by the OCC. Comments can be filtered

by Agency using the filtering tools on

the left side of the screen.

• Viewing Comments Personally: You

may personally inspect and photocopy

comments at the OCC, 250 E Street SW.,

Washington, DC 20219. For security

reasons, the OCC requires that visitors

make an appointment to inspect

comments. You may do so by calling

(202) 874–4700. Upon arrival, visitors

will be required to present valid

government-issued photo identification

and to submit to security screening in

order to inspect and photocopy

comments.

• Docket: You may also view or

request available background

documents and project summaries using

the methods described above.

Board: When submitting comments,

please consider submitting your

comments by email or fax because paper

mail in the Washington, DC area and at

the Board may be subject to delay. You

may submit comments, identified by

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

Docket No. R–1442; RIN No. 7100 AD

87, by any of the following methods:

• Agency Web Site: http://

www.federalreserve.gov. Follow the

instructions for submitting comments at

http://www.federalreserve.gov/

generalinfo/foia/ProposedRegs.cfm.

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

• Email: regs.comments@federal

reserve.gov. Include docket number in

the subject line of the message.

• Fax: (202) 452–3819 or (202) 452–

3102.

• Mail: Jennifer J. Johnson, Secretary,

Board of Governors of the Federal

Reserve System, 20th Street and

Constitution Avenue NW., Washington,

DC 20551

emaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

• Email: regs.comments@federal

reserve.gov. Include docket number in

the subject line of the message.

• Fax: (202) 452–3819 or (202) 452–

3102.

• Mail: Jennifer J. Johnson, Secretary,

Board of Governors of the Federal

Reserve System, 20th Street and

Constitution Avenue NW., Washington,

DC 20551.

All public comments are available

from the Board’s Web site at http://

www.federalreserve.gov/generalinfo/

foia/ProposedRegs.cfm as submitted,

unless modified for technical reasons.

Accordingly, your comments will not be

edited to remove any identifying or

contact information. Public comments

may also be viewed electronically or in

paper form in Room MP–500 of the

Board’s Martin Building (20th and C

Street NW., Washington, DC 20551)

between 9 a.m. and 5 p.m. on weekdays.

FDIC: You may submit comments by

any of the following methods:

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

• Agency Web site: http://www.FDIC.

gov/regulations/laws/federal/

propose.html.

• Mail: Robert E. Feldman, Executive

Secretary, Attention: Comments/Legal

ESS, Federal Deposit Insurance

Corporation, 550 17th Street NW.,

Washington, DC 20429.

• Hand Delivered/Courier: The guard

station at the rear of the 550 17th Street

Building (located on F Street), on

business days between 7:00 a.m. and

5:00 p.m.

• Email: comments@FDIC.gov.

• Instructions: Comments submitted

must include ‘‘FDIC’’ and ‘‘RIN 3064–

AD 96.’’ Comments received will be

posted without change to http://www.

FDIC.gov/regulations/laws/federal/

propose.html, including any personal

information provided

station at the rear of the 550 17th Street

Building (located on F Street), on

business days between 7:00 a.m. and

5:00 p.m.

• Email: comments@FDIC.gov.

• Instructions: Comments submitted

must include ‘‘FDIC’’ and ‘‘RIN 3064–

AD 96.’’ Comments received will be

posted without change to http://www.

FDIC.gov/regulations/laws/federal/

propose.html, including any personal

information provided.

FOR FURTHER INFORMATION CONTACT:

OCC: Margot Schwadron, Senior Risk

Expert, (202) 874–6022, David Elkes,

Risk Expert, (202) 874–3846, or Mark

Ginsberg, Risk Expert, (202) 927–4580,

or Ron Shimabukuro, Senior Counsel,

Patrick Tierney, Counsel, or Carl

Kaminski, 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: Anna Lee Hewko, Assistant

Director, (202) 530–6260, Thomas

Boemio, Manager, (202) 452–2982, or

Constance M. Horsley, Manager, (202)

452–5239, Capital and Regulatory

Policy, Division of Banking Supervision

and Regulation; or Benjamin

McDonough, Senior Counsel, (202) 452–

2036, April C. Snyder, Senior Counsel,

(202) 452–3099, or Christine Graham,

Senior Attorney, (202) 452–3005, Legal

Division, Board of Governors of the

Federal Reserve System, 20th and C

Streets NW., Washington, DC 20551. For

the hearing impaired only,

Telecommunication Device for the Deaf

(TDD), (202) 263–4869.

FDIC: Bobby R

Regulation; or Benjamin

McDonough, Senior Counsel, (202) 452–

2036, April C. Snyder, Senior Counsel,

(202) 452–3099, or Christine Graham,

Senior Attorney, (202) 452–3005, Legal

Division, Board of Governors of the

Federal Reserve System, 20th and C

Streets NW., Washington, DC 20551. For

the hearing impaired only,

Telecommunication Device for the Deaf

(TDD), (202) 263–4869.

FDIC: Bobby R. Bean, Associate

Director, bbean@fdic.gov; Ryan

Billingsley, Chief, Capital Policy

Section, rbillingsley@fdic.gov; Karl

Reitz, Chief, Capital Markets Strategies

Section, kreitz@fdic.gov, Division of

Risk Management Supervision; David

Riley, Senior Policy Analyst,

dariley@fdic.gov, Capital Markets

Branch, Division of Risk Management

Supervision, (202) 898–6888; or Mark

Handzlik, Counsel, mhandzlik@fdic.gov,

Michael Phillips, Counsel,

mphillips@fdic.gov, Greg Feder,

Counsel, gfeder@fdic.gov, or Ryan

Clougherty, Senior Attorney,

rclougherty@fdic.gov; Supervision

Branch, Legal Division, Federal Deposit

Insurance Corporation, 550 17th Street

NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION: 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

seeking comment on three notices of

proposed rulemaking (NPRs) that would

revise and replace the agencies’ current

capital rules.

This NPR (Standardized Approach

NPR) includes proposed changes to the

agencies’ general risk-based capital

requirements for determining risk-

weighted assets (that is, the calculation

of the denominator of a banking

organization’s risk-based capital ratios)

e

seeking comment on three notices of

proposed rulemaking (NPRs) that would

revise and replace the agencies’ current

capital rules.

This NPR (Standardized Approach

NPR) includes proposed changes to the

agencies’ general risk-based capital

requirements for determining risk-

weighted assets (that is, the calculation

of the denominator of a banking

organization’s risk-based capital ratios).

The proposed changes would revise and

harmonize the agencies’ rules for

calculating risk-weighted assets to

enhance risk-sensitivity and address

weaknesses identified over recent years,

including by incorporating certain

international capital standards of the

Basel Committee on Banking

Supervision (BCBS) set forth in the

standardized approach of the

‘‘International Convergence of Capital

Measurement and Capital Standards: A

Revised Framework’’ (Basel II), as

revised by the BCBS between 2006 and

2009, and other proposals addressed in

recent consultative papers of the BCBS.

In this NPR, the agencies also propose

alternatives to credit ratings for

calculating risk-weighted assets for

certain assets, consistent with section

939A of the Dodd-Frank Wall Street

Reform and Consumer Protection Act of

2010 (Dodd-Frank Act). The revisions

include methodologies for determining

risk-weighted assets for residential

mortgages, securitization exposures, and

counterparty credit risk. The changes in

this Standardized Approach NPR are

proposed to take effect on January 1,

2015, with an option for early adoption.

The Standardized Approach NPR also

would introduce disclosure

requirements that would apply to top-

tier banking organizations domiciled in

the United States with $50 billion or

more in total assets, including

disclosures related to regulatory capital

instruments.

In connection with the proposed

changes to the agencies’ capital rules in

this NPR, the agencies are also seeking

comment on the two related NPRs

published elsewhere in today’s Federal

Register

ments that would apply to top-

tier banking organizations domiciled in

the United States with $50 billion or

more in total assets, including

disclosures related to regulatory capital

instruments.

In connection with the proposed

changes to the agencies’ capital rules in

this NPR, the agencies are also seeking

comment on the two related NPRs

published elsewhere in today’s Federal

Register. In the notice titled ‘‘Regulatory

Capital Rules: Regulatory Capital,

Implementation of Basel III, Minimum

Regulatory Capital Ratios, Capital

Adequacy, Prompt Corrective Action,

and Transition Provisions’’ (Basel III

NPR), the agencies are proposing to

revise their minimum risk-based capital

requirements and criteria for regulatory

capital, as well as establish a capital

conservation buffer framework,

consistent with Basel III.

The proposals in this NPR and the

Basel III NPR would apply to all

banking organizations that are currently

subject to minimum capital

requirements (including national banks,

state member banks, state nonmember

banks, state and federal savings

associations, and top-tier bank holding

companies domiciled in the United

States not subject to the Board’s Small

Bank Holding Company Policy

Statement), as well as top-tier savings

and loan holding companies domiciled

in the United States (together, banking

organizations).

In the notice titled ‘‘Regulatory

Capital Rules: Advanced Approaches

Risk-Based Capital Rule; Market Risk

Capital Rule,’’ (Advanced Approaches

and Market Risk NPR) the agencies are

proposing to revise the advanced

approaches risk-based capital rules,

which are applicable only to the largest

internationally active banking

organizations, consistent with Basel III

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Approaches

and Market Risk NPR) the agencies are

proposing to revise the advanced

approaches risk-based capital rules,

which are applicable only to the largest

internationally active banking

organizations, consistent with Basel III

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

1 Sections marked with an asterisk generally

would not apply to less complex banking

organizations.

and other changes to the BCBS’s capital

standards.

Table of Contents 1

I. Introduction and Overview. Overview of

the proposed standardized approach for

calculation of risk-weighted assets and

summary of proposals contained in two

other NPRs.

II. Standardized Approach for Risk-Weighted

Assets

A. Calculation of Standardized Total Risk-

weighted Assets. A discussion of how a

banking organization would determine

risk-weighted asset amounts.

B. Risk-weighted Assets for General Credit

Risk. A description of general credit risk

exposures and the methodologies for

calculating risk-weighted assets for such

exposures.

1. Exposures to Sovereigns. A description

of the treatment of exposures to the U.S.

government and other sovereigns.

2. Exposures to Certain Supranational

Entities and Multilateral Development

Banks. A description of the treatment of

exposures to Multilateral Development

Banks and other supranational entities.

3. Exposures to Government-sponsored

Entities. A description of the treatment

of exposures to government-sponsored

entities (such as the Federal National

Mortgage Association and the Federal

Home Loan Mortgage Corporation).

4. Exposures to Depository Institutions,

Foreign Banks, and Credit Unions. A

description of the treatment for

exposures to U.S. depository institutions,

foreign banks, and credit unions.

5. Exposures to Public Sector Entities

n of the treatment

of exposures to government-sponsored

entities (such as the Federal National

Mortgage Association and the Federal

Home Loan Mortgage Corporation).

4. Exposures to Depository Institutions,

Foreign Banks, and Credit Unions. A

description of the treatment for

exposures to U.S. depository institutions,

foreign banks, and credit unions.

5. Exposures to Public Sector Entities. A

description of the treatment for

exposures to Public Sector Entities,

general obligation and revenue bonds.

6. Corporate Exposures. A description of

the treatment for corporate exposures.

7. Residential Mortgage Exposures. A

description of the more risk-sensitive

treatment for first- and junior-lien

residential mortgage exposures.

8. Pre-sold Construction Loans and

Statutory Multifamily Mortgages. A

description of the treatment for pre-sold

construction loans and statutory

multifamily mortgages.

9. High Volatility Commercial Real Estate

Exposures. A description of the

requirement to assign higher risk weights

to certain commercial real estate

exposures.

10. Past Due Exposures. A description of

the requirement to assign higher risk

weights to certain past due loans.

11. Other Assets. A description of the

treatment for exposures that are not

assigned to specific risk weight

categories, including cash and gold

bullion held by a banking organization.

C. Off-balance Sheet Items. A discussion of

the requirements for calculating the

exposure amount of an off-balance sheet

item.

D. Over-the-Counter Derivative Contracts*.

A discussion of the requirements for

calculating risk-weighted asset amounts

for exposures to over-the-counter (OTC)

derivative contracts.

E. Cleared Transactions.

1. Overview. A discussion of the

requirements for calculating risk-

weighted asset amounts for derivatives

and repo-style transactions that are

cleared through central counterparties

and for default fund contributions to

central counterparties.

2

quirements for

calculating risk-weighted asset amounts

for exposures to over-the-counter (OTC)

derivative contracts.

E. Cleared Transactions.

1. Overview. A discussion of the

requirements for calculating risk-

weighted asset amounts for derivatives

and repo-style transactions that are

cleared through central counterparties

and for default fund contributions to

central counterparties.

2. Risk-weighted Asset Amount for

Clearing Member Clients and Clearing

Members. A description of the

calculation of the trade exposure amount

and the appropriate risk weight.

3. Default Fund Contribution*. A

description of the risk-based capital

requirement for default fund

contributions of clearing members.

F. Credit Risk Mitigation.

1. Guarantees and Credit Derivatives

a. Eligibility Requirements. A description

of the eligibility requirements for credit

risk mitigation, including guarantees and

credit derivatives.

b. Substitution Approach. A description of

the substitution approach for recognizing

credit risk mitigation of guarantees and

credit derivatives.

c. Maturity Mismatch Haircut. An

explanation of the requirement for

adjusting the exposure amount of a

credit risk mitigant to reflect any

maturity mismatch between a hedged

exposure and the credit risk mitigant.

d. Adjustment for Credit Derivatives

without Restructuring as a Credit Event*.

A description of requirements to adjust

the notional amount of a credit

derivative that does not include

restructuring as a credit event in its

governing contracts.

e. Currency Mismatch Adjustment*. A

description of the requirement to adjust

the notional amount of an eligible

guarantee or eligible credit derivative

that is denominated in a currency

different from that in which the hedged

exposure is denominated.

f. Multiple Credit Risk Mitigants*. A

description of the calculation of risk-

weighted asset amounts when multiple

credit risk mitigants cover a single

exposure.

2. Collateralized Transactions

requirement to adjust

the notional amount of an eligible

guarantee or eligible credit derivative

that is denominated in a currency

different from that in which the hedged

exposure is denominated.

f. Multiple Credit Risk Mitigants*. A

description of the calculation of risk-

weighted asset amounts when multiple

credit risk mitigants cover a single

exposure.

2. Collateralized Transactions. A

discussion of options and requirements

for recognizing collateral credit risk

mitigation, including eligibility criteria,

risk management requirements, and

methodologies for calculating exposure

amount of eligible collateral.

a. Eligible Collateral. A description of

eligible collateral, including the

definition of financial collateral.

b. Risk Management Guidance for

Recognizing Collateral. A description of

the steps a banking organization should

take to ensure the eligibility of collateral

prior to recognizing the collateral for

credit risk mitigation purposes.

c. Simple Approach. A description of the

approach to assign a risk weight to the

collateralized portion of the exposure.

d. Collateral Haircut Approach*. A

description of how a banking

organization would be permitted to use

a collateral haircut approach with

supervisory haircuts to recognize the risk

mitigating effect of collateral that secures

certain types of transactions.

e. Standard Supervisory Haircuts*. A

description of the standard supervisory

market price volatility haircuts based on

residual maturity and exposure type.

f. Own Estimates of Haircuts*. A

description of the qualitative and

quantitative standards and requirements

for a banking organization to use

internally estimated haircuts.

g. Simple Value-at-risk*. A description of

an alternative that the agencies may

consider to permit a banking

organization estimate the exposure

amount for transactions subject to certain

netting agreements using a value-at-risk

model.

h. Internal Models Methodology*

e qualitative and

quantitative standards and requirements

for a banking organization to use

internally estimated haircuts.

g. Simple Value-at-risk*. A description of

an alternative that the agencies may

consider to permit a banking

organization estimate the exposure

amount for transactions subject to certain

netting agreements using a value-at-risk

model.

h. Internal Models Methodology*. A

description of an alternative that the

agencies may consider to permit a

banking organization to use the internal

models methodology to calculate the

exposure amount for the counterparty

credit exposure for OTC derivatives,

eligible margin loans, and repo-style

transactions.

G. Unsettled Transactions*. A description

of the methodology for calculating the

risk-weighted asset amount for unsettled

delivery-versus-payment and payment-

versus-payment transactions.

H. Risk-weighted Assets for Securitization

Exposures

1. Overview of the Securitization

Framework and Definitions. A

description of the securitization

framework designed to address the credit

risk of exposures that involve the

tranching of the credit risk of one or

more underlying financial exposures

under the proposal.

2. Operational Requirements for

Securitization Exposures. A description

of operational and due diligence

requirements for securitization

exposures and eligibility of clean-up

calls.

a. Due Diligence Requirements. A

description of the due diligence

requirements that a banking organization

would have to conduct and document

prior to acquisition of exposures and

periodically thereafter.

b. Operational Requirements for

Traditional Securitizations*. A

description of the operational

requirements for traditional

securitizations.

c. Operational Requirements for Synthetic

Securitizations. A discussion of the

operational requirements for synthetic

securitizations.

d. Clean-Up Calls. A discussion of the

definition and eligibility of clean-up

calls.

3

periodically thereafter.

b. Operational Requirements for

Traditional Securitizations*. A

description of the operational

requirements for traditional

securitizations.

c. Operational Requirements for Synthetic

Securitizations. A discussion of the

operational requirements for synthetic

securitizations.

d. Clean-Up Calls. A discussion of the

definition and eligibility of clean-up

calls.

3. Risk-weighted Asset Amounts for

Securitization Exposures

a. Exposure Amount of a Securitization

Exposure. A description of the proposed

methodology for calculating the

exposure amount of a securitization

exposure.

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2 Public Law 111–203, 124 Stat. 1376 (2010).

3 Small bank holding companies would continue

to be subject to the Small Bank Holding Company

Policy Statement. The proposed rule’s application

to all savings and loan holding companies

(including small savings and loan holding

companies) is consistent with the transfer of

supervisory responsibilities to the Board and the

requirements of section 171 of the Dodd-Frank Act.

Section 171 of the Dodd-Frank Act by its terms does

not apply to small bank holding companies, but

there is no exemption from the requirements of

section 171 for small savings and loan holding

companies. See 12 U.S.C. 5371.

b. Gains-On-Sale and Credit-enhancing

Interest-only Strips. A description of

proposed deduction requirements for

gains-on-sale and credit-enhancing

interest-only strips.

c. Exceptions under the Securitization

Framework. A description of exceptions

to certain requirements under the

proposed securitization framework.

d. Overlapping Exposures. A description of

the provisions to limit the double

counting of risks associated with

securitization exposures.

e. Servicer Cash Advances

tion requirements for

gains-on-sale and credit-enhancing

interest-only strips.

c. Exceptions under the Securitization

Framework. A description of exceptions

to certain requirements under the

proposed securitization framework.

d. Overlapping Exposures. A description of

the provisions to limit the double

counting of risks associated with

securitization exposures.

e. Servicer Cash Advances. A description

of the treatment for servicer cash

advances.

f. Implicit Support. A discussion of

regulatory consequences where a

banking organization provides implicit

(non-contractual) support to a

securitization transaction.

4. Simplified Supervisory Formula

Approach*. A discussion of the

simplified supervisory formula

methodology for calculating the risk-

weighted asset amounts of securitization

exposures.

5. Gross-up Approach. A description of the

gross-up approach for calculating risk-

weighted asset amounts for

securitization exposures.

6. Alternative Treatments for Certain Types

of Securitization Exposures*. A

description of requirements related to

exposures to asset-backed commercial

paper programs.

7. Credit Risk Mitigation for Securitization

Exposures. A discussion of the

requirements for recognizing credit risk

mitigation for securitization exposures.

8. Nth-to-default Credit Derivatives*. A

description of the requirements for

calculating risk-weighted asset amounts

for nth-to-default credit derivatives.

I. Equity Exposures. A description of the

requirements for calculating risk-

weighted asset amounts for equity

exposures, including calculation of

exposure amount, recognition of equity

hedges, and methodologies for assigning

risk weights to different categories of

equity exposures.

1. Introduction. A description of the

treatment for equity exposures.

2. Exposure Measurement. A description of

how a banking organization would

determine the adjusted carrying value for

equity exposures.

3. Equity Exposure Risk Weights

calculation of

exposure amount, recognition of equity

hedges, and methodologies for assigning

risk weights to different categories of

equity exposures.

1. Introduction. A description of the

treatment for equity exposures.

2. Exposure Measurement. A description of

how a banking organization would

determine the adjusted carrying value for

equity exposures.

3. Equity Exposure Risk Weights. A

description of how a banking

organization would determine the risk-

weighted asset amount for each equity

exposure.

4. Non-significant Equity Exposures. A

description of the proposed treatment for

non-significant equity exposures.

5. Hedged Transactions*. A description of

the proposed treatment for hedged

transactions.

6. Measures of Hedge Effectiveness*. A

description of the measures of hedge

effectiveness.

7. Equity Exposures to Investment Funds

a. Full Look-through Approach. A

description of the proposed full look-

through approach.

b. Simple Modified Look-through

Approach. A description of the simple

modified look-through approach.

c. Alternative Modified Look-through

Approach. A description of the

alternative modified look-through

approach.

III. Insurance-Related Activities*. A

discussion of the proposed treatment for

certain instruments and exposures unique

to insurance underwriting activities.

IV. Market Discipline and Disclosure

Requirements*.

A. Proposed Disclosure Requirements. A

discussion of the proposed disclosure

requirements for top-tier entities with

$50 billion or more in total assets that

are not subject to the advanced

approaches rule.

B. Frequency of Disclosures. Describes the

proposed frequency of required

disclosures.

C. Location of Disclosures and Audit

Requirements. A description of the

location of disclosures and audit

requirements.

D. Proprietary and Confidential

Information. Describes the treatment of

proprietary and confidential information

as part of the proposed disclosure

requirements.

E. Specific Public Disclosure

Requirements

res. Describes the

proposed frequency of required

disclosures.

C. Location of Disclosures and Audit

Requirements. A description of the

location of disclosures and audit

requirements.

D. Proprietary and Confidential

Information. Describes the treatment of

proprietary and confidential information

as part of the proposed disclosure

requirements.

E. Specific Public Disclosure

Requirements. A description of the

specific public disclosure requirements

in tables 14.1–14.10 of the proposal.

V. List of Acronyms That Appear in the

Proposal

VI. Regulatory Flexibility Act Analysis

VII. Paperwork Reduction Act

VIII. Plain Language

IX. OCC Unfunded Mandates Reform Act of

1995 Determination

Addendum 1: Summary of this NPR as it

would Generally Apply to Community

Banking Organizations

Addendum 2: Definitions Used in the

Proposal

I. Introduction and Overview

The Office of the Comptroller of the

Currency (OCC), Board of Governors of

the Federal Reserve System (Board), and

the Federal Deposit Insurance

Corporation (FDIC) (collectively, the

agencies) are proposing comprehensive

revisions to their regulatory capital

framework through three concurrent

notices of proposed rulemaking (NPRs).

In this NPR (Standardized Approach

NPR), the agencies are proposing to

revise certain aspects of the general risk-

based capital requirements that address

the calculation of risk-weighted assets.

The agencies believe the proposed

changes included in this NPR would

both enhance the overall risk-sensitivity

of the calculation of a banking

organization’s total risk-weighted assets

and be consistent with relevant

provisions of the Dodd-Frank Wall

Street Reform and Consumer Protection

Act (Dodd-Frank Act).2 Although many

of the proposed changes included in

this NPR are not specifically included in

the Basel capital framework, the

agencies believe that these proposed

changes are generally consistent with

the goals of the international framework

l risk-weighted assets

and be consistent with relevant

provisions of the Dodd-Frank Wall

Street Reform and Consumer Protection

Act (Dodd-Frank Act).2 Although many

of the proposed changes included in

this NPR are not specifically included in

the Basel capital framework, the

agencies believe that these proposed

changes are generally consistent with

the goals of the international framework.

This NPR contains a standardized

approach for determining risk-weighted

assets. This NPR would apply to all

banking organizations currently subject

to minimum capital requirements,

including national banks, state member

banks, state nonmember banks, state

and federal savings associations, top-tier

bank holding companies domiciled in

the United States not subject to the

Board’s Small Bank Holding Company

Policy Statement (12 CFR part 225,

appendix C), as well as top-tier savings

and loan holding companies domiciled

in the United States (together, banking

organizations).3 The proposed effective

date for the provisions of this NPR is

January 1, 2015, with an option for early

adoption.

In a separate NPR (Basel III NPR), the

agencies are proposing to revise their

capital regulations to incorporate

agreements reached by the Basel

Committee on Banking Supervision

(BCBS) in ‘‘Basel III: A Global

Regulatory Framework for More

Resilient Banks and Banking Systems’’

(Basel III). The Basel III NPR would

revise the definition of regulatory

capital and minimum capital ratios,

establish capital buffers, create a

supplementary leverage ratio for

advanced approach banking

organizations, and revise the agencies’

Prompt Corrective Action (PCA)

regulations.

The agencies are proposing in a third

NPR (Advanced Approaches and Market

Risk NPR) to incorporate additional

aspects of the Basel III framework into

the advanced approaches risk-based

capital rule (advanced approaches rule)

tal buffers, create a

supplementary leverage ratio for

advanced approach banking

organizations, and revise the agencies’

Prompt Corrective Action (PCA)

regulations.

The agencies are proposing in a third

NPR (Advanced Approaches and Market

Risk NPR) to incorporate additional

aspects of the Basel III framework into

the advanced approaches risk-based

capital rule (advanced approaches rule).

Additionally, in the Advanced

Approaches and Market Risk NPR, the

Board proposes to apply the advanced

approaches rule to savings and loan

holding companies, and the Board,

FDIC, and OCC propose to apply the

market risk capital rule (market risk

rule) to savings and loan holding

companies and to state and federal

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4 12 U.S.C. 1831o; 12 CFR part 6, 12 CFR part 165

(OCC); 12 CFR 208.43 (Board), 12 CFR 325.105, 12

CFR 390.455 (FDIC).

5 See BCBS, ‘‘International Convergence of

Capital Measurement and Capital Standards: A

Revised Framework,’’ (June 2006), available at

http://www.bis.org/publ/bcbs128.htm (Basel II).

6 See BCBS, ‘‘Enhancements to the Basel II

Framework,’’ (July 2009), available at http://

www.bis.org/publ/bcbs157.htm.

7 Dodd-Frank Act, section 939A (15 U.S.C. 78o–

7, note).

8 Section 939A of the Dodd-Frank Act provides

that not later than 1 year after the date of

enactment, each Federal agency shall review: (1)

Any regulation issued by such agency that requires

the use of an assessment of the credit-worthiness of

a security or money market instrument; and (2) any

references to or requirements in such regulations

regarding credit ratings

U.S.C. 78o–

7, note).

8 Section 939A of the Dodd-Frank Act provides

that not later than 1 year after the date of

enactment, each Federal agency shall review: (1)

Any regulation issued by such agency that requires

the use of an assessment of the credit-worthiness of

a security or money market instrument; and (2) any

references to or requirements in such regulations

regarding credit ratings. Section 939A further

provides that each such agency ‘‘shall modify any

such regulations identified by the review * * * to

remove any reference to or requirement of reliance

on credit ratings and to substitute in such

regulations such standard of credit-worthiness as

each respective agency shall determine as

appropriate for such regulations.’’ See 15 U.S.C.

78o–7 note.

9 Banking organizations should refer to the Basel

III NPR to see a complete table of the key provisions

of the proposal.

savings associations that meet the scope

requirements of these rules,

respectively. Thus, the Advanced

Approaches and Market Risk NPR is

applicable only to banking organizations

that are or would be subject to the

advanced approaches rule (advanced

approaches banking organizations) or

the market risk rule, and to savings and

loan holding companies and state and

federal savings associations that would

be subject to the advanced approaches

rule or market risk rule.

All banking organizations, including

organizations subject to the advanced

approaches rule, should review both the

Basel III NPR and the Standardized

Approach NPR

dvanced

approaches banking organizations) or

the market risk rule, and to savings and

loan holding companies and state and

federal savings associations that would

be subject to the advanced approaches

rule or market risk rule.

All banking organizations, including

organizations subject to the advanced

approaches rule, should review both the

Basel III NPR and the Standardized

Approach NPR. The requirements

proposed in the Basel III NPR and the

Standardized Approach NPR are

proposed to become the ‘‘generally

applicable’’ capital requirements for

purposes of section 171 of the Dodd-

Frank Act because they would be the

capital requirements for insured

depository institutions under section 38

of the Federal Deposit Insurance Act,

without regard to asset size or foreign

financial exposure.4

The agencies believe that it is

important to publish all of the proposed

capital rules at the same time so that

banking organizations can evaluate the

overall potential impact of the proposals

on their operations. The proposals are

divided into three separate NPRs to

reflect the distinct objectives of each

proposal, to allow interested parties to

better understand the various aspects of

the overall capital framework, including

which aspects of the proposals would

apply to which banking organizations,

and to help interested parties better

focus their comments on areas of

particular interest. Additionally, the

agencies believe that separating the

proposed requirements into three NPRs

makes it easier for banking

organizations of all sizes to more easily

understand which proposed changes are

related to the agencies’ objective to

improve the quality and increase the

quantity of capital and which are related

to the agencies’ objective to enhance the

overall risk-sensitivity of the calculation

of a banking organization’s total risk-

weighted assets

rements into three NPRs

makes it easier for banking

organizations of all sizes to more easily

understand which proposed changes are

related to the agencies’ objective to

improve the quality and increase the

quantity of capital and which are related

to the agencies’ objective to enhance the

overall risk-sensitivity of the calculation

of a banking organization’s total risk-

weighted assets. The agencies believe

that the proposed changes contained in

the three NPRs will result in capital

requirements that will improve

institutions’ ability to withstand periods

of economic stress and better reflect

their risk profiles. The agencies have

carefully considered the potential

impact of the three NPRs on all banking

organizations, including community

banking organizations, and sought to

minimize the potential burden of these

changes wherever possible.

This NPR proposes new

methodologies for determining risk-

weighted assets in the agencies’ general

capital rules, incorporating elements of

the Basel II standardized approach 5 as

modified by the 2009 ‘‘Enhancements to

the Basel II Framework’’ (2009

Enhancements) 6 and recent consultative

papers published by the BCBS. This

NPR also proposes alternative standards

of creditworthiness consistent with

section 939A of the Dodd-Frank Act.7

The proposed revisions in this NPR

include revisions to recognition of

credit risk mitigation, including a

greater recognition of financial collateral

and a wider range of eligible guarantors.

They also include risk weighting of

equity exposures and past due loans,

operational requirements for

securitization exposures, more favorable

capital treatment for derivatives and

repo-style transactions cleared through

central counterparties, and disclosure

requirements that would apply to top-

tier banking organizations with $50

billion or more in total assets that are

not subject to the advanced approaches

rule

ing of

equity exposures and past due loans,

operational requirements for

securitization exposures, more favorable

capital treatment for derivatives and

repo-style transactions cleared through

central counterparties, and disclosure

requirements that would apply to top-

tier banking organizations with $50

billion or more in total assets that are

not subject to the advanced approaches

rule. In addition, the proposed risk

weights for residential mortgage

exposures in this NPR enhance risk-

sensitivity for capital requirements

associated with these exposures.

Similarly, the proposals in this NPR

would require a higher risk weighting

for certain commercial real estate

exposures that typically have higher

credit risk. The agencies believe these

proposals would more appropriately

align capital requirements with these

exposures and contribute to the

resilience of both individual banking

organizations and the banking system.

Some of the proposed changes in this

NPR are not specifically included in the

Basel capital framework. However, the

agencies believe that these proposed

changes are generally consistent with

the goals of that framework. For

example, the Basel capital framework

seeks to enhance the risk-sensitivity of

the international risk-based capital

requirements by mapping capital

requirements for certain exposures to

credit ratings provided by credit rating

agencies. Instead of mapping risk

weights to credit ratings, the agencies

are proposing alternative standards of

creditworthiness to assign risk weights

to certain exposures, including

exposures to sovereigns, companies, and

securitization exposures, in a manner

consistent with section 939A of the

Dodd-Frank Act.8 These alternative

creditworthiness standards and risk-

based capital requirements have been

designed to be consistent with safety

and soundness while also exhibiting

risk-sensitivity to the extent possible

o assign risk weights

to certain exposures, including

exposures to sovereigns, companies, and

securitization exposures, in a manner

consistent with section 939A of the

Dodd-Frank Act.8 These alternative

creditworthiness standards and risk-

based capital requirements have been

designed to be consistent with safety

and soundness while also exhibiting

risk-sensitivity to the extent possible.

Furthermore, these capital requirements

are intended to be similar to those

generated under the Basel framework.

Table 1 summarizes key proposed

requirements in this NPR and illustrates

how these changes compare to the

agencies’ general risk-based capital

rules.9 The remaining sections of this

notice describe in detail each element of

the proposal, how the proposal would

differ from the current general risk-

based capital rules, and examples for

how a banking organization would

calculate risk-weighted asset amounts.

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TABLE 1—KEY PROVISIONS OF THE PROPOSED REQUIREMENTS AS COMPARED TO THE GENERAL RISK-BASED CAPITAL

RULES

Aspect of proposed requirements

Proposed treatment

Risk-weighted Assets

Credit exposures to:

U.S. government and its agencies ...............

Unchanged.

U.S. government-sponsored entities.

U.S.

depository

institutions

and

credit

unions.

U.S. public sector entities, such as states

and municipalities (section 32 of subpart

D).

Credit exposures to:

Foreign sovereigns .......................................

Introduces a more risk-sensitive treatment using the Country Risk Classification measure pro-

duced by the Organization for Economic Co-operation and Development.

Foreign banks .............................................

ns.

U.S. public sector entities, such as states

and municipalities (section 32 of subpart

D).

Credit exposures to:

Foreign sovereigns .......................................

Introduces a more risk-sensitive treatment using the Country Risk Classification measure pro-

duced by the Organization for Economic Co-operation and Development.

Foreign banks ..............................................

Foreign public sector entities (section 32 of

subpart D)

Corporate exposures (section 32 of subpart D)

Assigns a 100 percent risk weight to corporate exposures, including exposures to securities

firms.

Residential mortgage exposures (section 32 of

subpart D).

Introduces a more risk-sensitive treatment based on several criteria, including certain loan

characteristics and the loan-to-value-ratio of the exposure.

High volatility commercial real estate exposures

(section 32 of subpart D).

Applies a 150 percent risk weight to certain credit facilities that finance the acquisition, devel-

opment or construction of real property.

Past due exposures (section 32 of subpart D) ...

Applies a 150 percent risk weight to exposures that are not sovereign exposures or residential

mortgage exposures and that are more than 90 days past due or on nonaccrual.

Securitization exposures (sections 41–45 of

subpart D).

Maintains the gross-up approach for securitization exposures.

Replaces the current ratings-based approach with a formula-based approach for determining a

securitization exposure’s risk weight based on the underlying assets and exposure’s relative

position in the securitization’s structure.

Equity exposures (sections 51–53 of subpart D)

Introduces more risk-sensitive treatment for equity exposures.

Off-balance Sheet Items (section 33 of subpart

D).

Revises the measure of the counterparty credit risk of repo-style transactions.

Raises the credit conversion factor for most short-term commitments from zero percent to 20

percent.

Derivative Contracts (section 34 of subpart D) ..

.

Equity exposures (sections 51–53 of subpart D)

Introduces more risk-sensitive treatment for equity exposures.

Off-balance Sheet Items (section 33 of subpart

D).

Revises the measure of the counterparty credit risk of repo-style transactions.

Raises the credit conversion factor for most short-term commitments from zero percent to 20

percent.

Derivative Contracts (section 34 of subpart D) ...

Removes the 50 percent risk weight cap for derivative contracts.

Cleared Transactions (section 35 of subpart D)

Provides preferential capital requirements for cleared derivative and repo-style transactions

(as compared to requirements for non-cleared transactions) with central counterparties that

meet specified standards. Also requires that a clearing member of a central counterparty

calculate a capital requirement for its default fund contributions to that central counterparty.

Credit Risk Mitigation (section 36 of subpart D)

Provides a more comprehensive recognition of collateral and guarantees.

Disclosure Requirements (sections 61–63 of

subpart D).

Introduces qualitative and quantitative disclosure requirements, including regarding regulatory

capital instruments, for banking organizations with total consolidated assets of $50 billion or

more that are not subject to the separate advanced approaches disclosure requirements.

This NPR proposes that, beginning on

January 1, 2015, a banking organization

would be required to calculate risk-

weighted assets using the methodologies

described herein. Until then, the

banking organization may calculate risk-

weighted assets using the methodologies

in the current general risk-based capital

rules.

Some of the proposed requirements in

this NPR are not applicable to smaller,

less complex banking organizations

nuary 1, 2015, a banking organization

would be required to calculate risk-

weighted assets using the methodologies

described herein. Until then, the

banking organization may calculate risk-

weighted assets using the methodologies

in the current general risk-based capital

rules.

Some of the proposed requirements in

this NPR are not applicable to smaller,

less complex banking organizations. To

assist these banking organizations in

rapidly identifying the elements of these

proposals that would apply to them, this

NPR and the Basel III NPR provide, as

addenda to the corresponding

preambles, a summary of the proposed

changes in those NPRs as they would

generally apply to smaller, less complex

banking organizations. This NPR also

contains a second addendum to the

preamble, which directs the reader to

the definitions proposed under the

Basel III NPR because they are

applicable to the Standardized

Approach NPR as well.

Question 1: The agencies seek

comment on the advantages and

disadvantages of the proposed

standardized approach rule as it would

apply to smaller and less complex

banking organizations (community

banking organizations). What specific

changes, if any, to the rule would

accomplish the agencies’ goals of

establishing improved risk-sensitivity

and quality of capital in an appropriate

manner? For example, in which areas

might the proposed standardized

approach for calculating risk-weighted

assets include simpler approaches for

community banking organizations or

longer transition periods? Provide

specific suggestions.

Question 2: The agencies also seek

comment on the advantages and

disadvantages of allowing certain

community banking organizations to

continue to calculate their risk-weighted

assets based on the methodology in the

current general risk-based capital rules,

as modified to meet the new Basel III

requirements and any changes required

under U.S. law, and as incorporated into

a comprehensive regulatory framework

cies also seek

comment on the advantages and

disadvantages of allowing certain

community banking organizations to

continue to calculate their risk-weighted

assets based on the methodology in the

current general risk-based capital rules,

as modified to meet the new Basel III

requirements and any changes required

under U.S. law, and as incorporated into

a comprehensive regulatory framework.

For example, under this type of

alternative approach, community

banking organizations would be subject

to the proposed new PCA thresholds, a

capital conservation buffer, and other

Basel III revisions to the capital

framework including the definition of

capital, as well as any changes related

to section 939A of the Dodd-Frank Act.

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10 Section 171 of the Dodd-Frank Act provides

that all banking organizations must be subject to

minimum capital requirements that cannot be less

than the ‘‘generally applicable risk-based capital

rules’’ established by the appropriate federal

banking agency to apply to insured depository

institutions under section 38 of the Federal Deposit

Insurance Act, regardless of total consolidated asset

size or foreign financial exposure; which shall serve

as a floor for any capital requirements the agency

may require.

11 See generally 12 CFR part 3, appendix A,

section III; 12 CFR 167.6 (OCC); 12 CFR parts 208

and 225, appendix A, section III (Board); 12 CFR

part 325, appendix A, sections II.C and II.D and 12

CFR 390.466 (FDIC).

12 The proposed rules would incorporate the

market risk rule into the integrated regulatory

framework as subpart F. See the Advanced

Approaches and Market Risk NPR for further

discussion.

13 A U.S. government agency would be defined in

the proposal as an instrumentality of the U.S

pendix A, section III (Board); 12 CFR

part 325, appendix A, sections II.C and II.D and 12

CFR 390.466 (FDIC).

12 The proposed rules would incorporate the

market risk rule into the integrated regulatory

framework as subpart F. See the Advanced

Approaches and Market Risk NPR for further

discussion.

13 A U.S. government agency would be defined in

the proposal as an instrumentality of the U.S.

government whose obligations are fully and

explicitly guaranteed as to the timely payment of

principal and interest by the full faith and credit of

the U.S. government.

14 Similar to the current general risk-based capital

rules, a claim would not be considered

unconditionally guaranteed by a central

government if the validity of the guarantee is

dependent upon some affirmative action by the

holder or a third party. See 12 CFR part 3, appendix

A, section 1(c)(11) and 12 CFR 167.6 (OCC); 12 CFR

parts 208 and 225, appendix A, section III.C.1

(Board); 12 CFR part 325, appendix A, section II.C.

(footnote 35) and 12 CFR 390.466 (FDIC).

15 Loss-sharing agreements entered into by the

FDIC with acquirers of assets from failed

institutions are considered conditional guarantees

for risk-based capital purposes due to contractual

conditions that acquirers must meet. The

guaranteed portion of assets subject to a loss-

sharing agreement may be assigned a 20 percent

risk weight. Because the structural arrangements for

these agreements vary depending on the specific

terms of each agreement, institutions should

consult with their primary federal supervisor to

As modified with these revisions,

community banking organizations

would continue using most of the same

risk weights as under the current

general risk-based capital rules,

including for commercial and

residential mortgage exposures.

Under this approach, banking

organizations other than community

banking organizations would use the

proposed standardized approach risk

weights to calculate the denominator of

the risk-based capital ratio

ing organizations

would continue using most of the same

risk weights as under the current

general risk-based capital rules,

including for commercial and

residential mortgage exposures.

Under this approach, banking

organizations other than community

banking organizations would use the

proposed standardized approach risk

weights to calculate the denominator of

the risk-based capital ratio. The agencies

request comment on the criteria they

should consider when determining

which banking organizations, if any,

should be permitted to continue to

calculate their risk-weighted assets

using the methodology in the current

general risk-based capital rules (revised

as described above). Which banking

organizations, consistent with section

171 of the Dodd-Frank Act, should be

required to use the standardized

approach? 10 What factors should the

agencies consider in making this

determination?

II. Standardized Approach for Risk-

weighted Assets

A. Calculation of Standardized Total

Risk-weighted Assets

Similar to the current general risk-

based capital rules, under the proposal,

a banking organization would calculate

its total risk-weighted assets by adding

together its on- and off-balance sheet

risk-weighted asset amounts and making

any relevant adjustments to incorporate

required capital deductions.11 Banking

organizations subject to the market risk

rule would be required to supplement

their total risk-weighted assets as

provided by the market risk rule.12 Risk-

weighted asset amounts generally would

be determined by assigning on-balance

sheet assets to broad risk-weight

categories according to the counterparty,

or, if relevant, the guarantor or

collateral

quired capital deductions.11 Banking

organizations subject to the market risk

rule would be required to supplement

their total risk-weighted assets as

provided by the market risk rule.12 Risk-

weighted asset amounts generally would

be determined by assigning on-balance

sheet assets to broad risk-weight

categories according to the counterparty,

or, if relevant, the guarantor or

collateral. Similarly, risk-weighted asset

amounts for off-balance sheet items

would be calculated using a two-step

process: (1) Multiplying the amount of

the off-balance sheet exposure by a

credit conversion factor (CCF) to

determine a credit equivalent amount,

and (2) assigning the credit equivalent

amount to a relevant risk-weight

category.

A banking organization would

determine its standardized total risk-

weighted assets by calculating the sum

of: (1) Its risk-weighted assets for

general credit risk, cleared transactions,

default fund contributions, unsettled

transactions, securitization exposures,

and equity exposures, each as defined

below, plus (ii) market risk-weighted

assets, if applicable, less (iii) the

banking organization’s allowance for

loan and lease losses (ALLL) that is not

included in tier 2 capital (as described

in section 20 of the proposal). The

sections below describe in more detail

how a banking organization would

determine the risk-weighted asset

amounts for its exposures.

B. Risk-weighted Assets for General

Credit Risk

Under this NPR, total risk-weighted

assets for general credit risk is the sum

of the risk-weighted asset amounts as

calculated under section 31(a) of the

proposal. As proposed, general credit

risk exposures would include a banking

organization’s on-balance sheet

exposures, over-the-counter (OTC)

derivative contracts, off-balance sheet

commitments, trade and transaction-

related contingencies, guarantees, repo-

style transactions, financial standby

letters of credit, forward agreements, or

other similar transactions

er section 31(a) of the

proposal. As proposed, general credit

risk exposures would include a banking

organization’s on-balance sheet

exposures, over-the-counter (OTC)

derivative contracts, off-balance sheet

commitments, trade and transaction-

related contingencies, guarantees, repo-

style transactions, financial standby

letters of credit, forward agreements, or

other similar transactions. General

credit risk exposures would generally

exclude unsettled transactions, cleared

transactions, default fund contributions,

securitization exposures, and equity

exposures, each as the agencies propose

to define. Section 32 describes the

proposed risk weights that would apply

to sovereign exposures; exposures to

certain supranational entities and

multilateral development banks (MDBs);

exposures to government-sponsored

entities (GSEs); exposures to depository

institutions, foreign banks, and credit

unions; exposures to public sector

entities (PSEs); corporate exposures;

residential mortgage exposures; pre-sold

residential construction loans; statutory

multifamily mortgages; high volatility

commercial real estate (HVCRE)

exposures; past due exposures; and

other assets (including cash, gold

bullion, certain mortgage servicing

assets (MSAs) and deferred tax assets

(DTAs)).

Generally, the exposure amount for

the on-balance sheet component of an

exposure is the banking organization’s

carrying value for the exposure as

determined under generally accepted

accounting principles (GAAP). The

exposure amount for an off-balance

sheet component of an exposure is

typically determined by multiplying the

notional amount of the off-balance sheet

component by the appropriate CCF as

determined under section 33

on-balance sheet component of an

exposure is the banking organization’s

carrying value for the exposure as

determined under generally accepted

accounting principles (GAAP). The

exposure amount for an off-balance

sheet component of an exposure is

typically determined by multiplying the

notional amount of the off-balance sheet

component by the appropriate CCF as

determined under section 33. The

exposure amount for an OTC derivative

contract or cleared transaction that is a

derivative would be determined under

section 34 while exposure amounts for

collateralized OTC derivative contracts,

collateralized cleared transactions that

are derivatives, repo-style transactions,

and eligible margin loans would be

determined under section 37 of the

proposal.

1. Exposures to Sovereigns

The agencies propose to retain the

current rules’ risk weights for exposures

to and claims directly and

unconditionally guaranteed by the U. S.

government or its agencies.13

Accordingly, exposures to the U. S.

government, its central bank, or a U.S.

government agency and the portion of

an exposure that is directly and

unconditionally guaranteed by the U. S.

government, the U.S. central bank, or a

U.S. government agency would receive

a zero percent risk weight.14 Consistent

with the current risk-based capital rules,

the portion of a deposit insured by the

FDIC or the National Credit Union

Administration also may be assigned a

zero percent risk weight. An exposure

conditionally guaranteed by the U.S.

government, its central bank, or a U.S.

government agency would receive a 20

percent risk weight.15

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ional Credit Union

Administration also may be assigned a

zero percent risk weight. An exposure

conditionally guaranteed by the U.S.

government, its central bank, or a U.S.

government agency would receive a 20

percent risk weight.15

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determine the appropriate risk-based capital

treatment for specific loss-sharing agreements.

16 12 CFR part 3, appendix A, section 3 and 12

CFR 167.6 (OCC); 12 CFR parts 208 and 225,

appendix A, section III.C.1 (Board); 12 CFR part

325, appendix A, section II.C and 12 CFR 390.466

(FDIC).

17 For more information on the OECD country risk

classification methodology, see OECD, ‘‘Country

Risk Classification,’’ available at http://

www.oecd.org/document/49/

0,3746,en_2649_34169_1901105_1_1_1_1,00.html.

18 See Dodd-Frank Act, section 931 (15 U.S.C.

78o–7 note).

19 See http://www.oecd.org/document/49/

0,2340,en_2649_34171_1901105_1_1_1_1,00.html.

20 OECD, ‘‘Premium and Related Conditions:

Explanation of the Premium Rules of the

Arrangement on Officially Supported Export

Credits (the Knaepen Package),’’ (July 6, 2004),

available at http://www.oecd.org/officialdocuments/

publicdisplaydocumentpdf/?cote=TD/PG(2004)10/

FINAL&docLanguage=En.

The agencies’ general risk-based

capital rules generally assign risk

weights to direct exposures to

sovereigns and exposures directly

guaranteed by sovereigns based on

whether the sovereign is a member of

the Organization for Economic Co-

operation and Development (OECD)

and, as applicable, whether the

exposure is unconditionally or

conditionally guaranteed by the

sovereign.16

Under the proposal, a sovereign

would be defined as a central

government (including the U.S.

government) or an agency, department,

ministry, or central bank of a central

government

her the sovereign is a member of

the Organization for Economic Co-

operation and Development (OECD)

and, as applicable, whether the

exposure is unconditionally or

conditionally guaranteed by the

sovereign.16

Under the proposal, a sovereign

would be defined as a central

government (including the U.S.

government) or an agency, department,

ministry, or central bank of a central

government. The risk weight for a

sovereign exposure would be

determined using OECD Country Risk

Classifications (CRCs) (the CRC

methodology).17 The OECD’s CRCs are

an assessment of a country’s credit risk,

used to set interest rate charges for

transactions covered by the OECD

arrangement on export credits.

The agencies believe that use of CRCs

in the proposal is permissible under

section 939A of the Dodd-Frank Act and

that section 939A was not intended to

apply to assessments of

creditworthiness of organizations such

as the OECD. Section 939A is part of

Subtitle C of Title IX of the Dodd-Frank

Act, which, among other things,

enhances regulation by the U.S.

Securities and Exchange Commission

(SEC) of credit rating agencies,

including Nationally Recognized

Statistical Rating Organizations

(NRSROs) registered with the SEC.

Section 939, in Subtitle C of Title IX,

removes references to credit ratings and

NRSROs from federal statutes. In the

introductory ‘‘findings’’ section to

Subtitle C, which is entitled

‘‘Improvements to the Regulation of

Credit Ratings Agencies,’’ Congress

characterized credit rating agencies as

organizations that play a critical

‘‘gatekeeper’’ role in the debt markets

and perform evaluative and analytical

services on behalf of clients, and whose

activities are fundamentally commercial

in character.18 Furthermore, the

legislative history of section 939A

focuses on the conflicts of interest of

credit rating agencies in providing

credit ratings to their clients, and the

problem of government ‘‘sanctioning’’ of

the credit rating agencies’ credit ratings

by having them incor

ive and analytical

services on behalf of clients, and whose

activities are fundamentally commercial

in character.18 Furthermore, the

legislative history of section 939A

focuses on the conflicts of interest of

credit rating agencies in providing

credit ratings to their clients, and the

problem of government ‘‘sanctioning’’ of

the credit rating agencies’ credit ratings

by having them incorporated into

federal regulations. The OECD is not a

commercial entity that produces credit

assessments for fee-paying clients, nor

does it provide the sort of evaluative

and analytical services as credit rating

agencies. Additionally, the agencies

note that the use of the CRCs is limited

in the proposal.

The CRC methodology, established in

1999, classifies countries into categories

based on the application of two basic

components: the country risk

assessment model (CRAM), which is an

econometric model that produces a

quantitative assessment of country

credit risk, and the qualitative

assessment of the CRAM results, which

integrates political risk and other risk

factors not fully captured by the CRAM.

The two components of the CRC

methodology are combined and result in

countries being classified into one of

eight risk categories (0–7), with

countries assigned to the zero category

having the lowest possible risk

assessment and countries assigned to

the 7 category having the highest

possible risk assessment.

The OECD regularly updates CRCs for

more than 150 countries and makes the

assessments publicly available on its

Web site.19 Accordingly, the agencies

believe that the CRC approach should

not represent undue burden to banking

organizations. The use of the CRC

methodology is consistent with the

Basel II standardized approach, which,

as an alternative to credit ratings,

provides for risk weights to be assigned

to sovereign exposures according to

country risk scores provided by export

credit agencies.

The agencies recognize that CRCs

have certain limitations

approach should

not represent undue burden to banking

organizations. The use of the CRC

methodology is consistent with the

Basel II standardized approach, which,

as an alternative to credit ratings,

provides for risk weights to be assigned

to sovereign exposures according to

country risk scores provided by export

credit agencies.

The agencies recognize that CRCs

have certain limitations. Although the

OECD has published a general

description of the methodology for CRC

determinations, the methodology is

largely principles-based and does not

provide details regarding the specific

information and data considered to

support a CRC. Additionally, while the

OECD reviews qualitative factors for

each sovereign on a monthly basis,

quantitative financial and economic

information used to assign CRCs is

available only annually in some cases,

and payment performance is updated

quarterly. Also, OECD-member

sovereigns that are defined to be ‘‘high-

income countries’’ by the World Bank

are assigned a CRC of zero, the most

favorable classification.20 Despite these

limitations, the agencies consider CRCs

to be a reasonable alternative to credit

ratings for sovereign exposures and the

proposed CRC methodology to be more

granular and risk-sensitive than the

current risk-weighting methodology

based on OECD membership.

The agencies also propose to require

a banking organization to apply a 150

percent risk weight to sovereign

exposures immediately upon

determining that an event of sovereign

default has occurred or if an event of

sovereign default has occurred during

the previous five years. Sovereign

default would be defined as a

noncompliance by a sovereign with its

external debt service obligations or the

inability or unwillingness of a sovereign

government to service an existing loan

according to its original terms, as

evidenced by failure to pay principal

and interest timely and fully, arrearages,

or restructuring

ign default has occurred during

the previous five years. Sovereign

default would be defined as a

noncompliance by a sovereign with its

external debt service obligations or the

inability or unwillingness of a sovereign

government to service an existing loan

according to its original terms, as

evidenced by failure to pay principal

and interest timely and fully, arrearages,

or restructuring. A default would

include a voluntary or involuntary

restructuring that results in a sovereign

not servicing an existing obligation in

accordance with the obligation’s

original terms.

The agencies are proposing to map

risk weights to CRCs in a manner

consistent with the Basel II standardized

approach, which provides risk weights

for foreign sovereigns based on country

risk scores. The proposed risk weights

for sovereign exposures are set forth in

table 2.

TABLE 2—PROPOSED RISK WEIGHTS

FOR SOVEREIGN EXPOSURES

Risk weight

(in percent)

Sovereign CRC:

0–1 .................................

0

2 .....................................

20

3 .....................................

50

4–6 .................................

100

7 .....................................

150

No CRC ................................

100

Sovereign Default .................

150

If a banking supervisor in a sovereign

jurisdiction allows banking

organizations in that jurisdiction to

apply a lower risk weight to an exposure

to that sovereign than table 2 provides,

a U.S. banking organization would be

able to assign the lower risk weight to

an exposure to that sovereign, provided

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nizations in that jurisdiction to

apply a lower risk weight to an exposure

to that sovereign than table 2 provides,

a U.S. banking organization would be

able to assign the lower risk weight to

an exposure to that sovereign, provided

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21 12 CFR part 3, appendix A section 3(a)(2)(vii),

and 2 CFR part 167.6(a)(1)(ii)(F) (OCC); 12 CFR part

208, and 225, appendix A, section III.C.2.b (Board);

12 CFR part 325, appendix A, section II.C, and 12

CFR part 390.466(a)(1)(ii)(F) (FDIC). GSEs include

the Federal Home Loan Mortgage Corporation

(FHLMC), the Federal National Mortgage

Association (FNMA), the Farm Credit System, and

the Federal Home Loan Bank System.

22 A depository institution is defined in section 3

of the Federal Deposit Insurance Act (12 U.S.C.

1813(c)(1)). Under this proposal, a credit union

refers to an insured credit union as defined under

the Federal Credit Union Act (12 U.S.C. 1752(7)).

23 Foreign bank means a foreign bank as defined

in section 211.2 of the Federal Reserve Board’s

Regulation K (12 CFR 211.2), that is not a

depository institution. For purposes of this

proposal, home country means the country where

an entity is incorporated, chartered, or similarly

established.

24 See BCBS, ‘‘Treatment of Trade Finance under

the Basel Capital Framework,’’ (October 2011),

available at http://www.bis.org/publ/bcbs205.pdf.

‘‘Low income country’’ is a designation used by the

World Bank to classify economies (see World Bank,

the exposure is denominated in the

sovereign’s currency and the U.S.

banking organization has at least an

equivalent amount of liabilities in that

foreign currency.

Question 3: The agencies solicit

comment on the proposed methodology

for risk weighting sovereign exposures

bl/bcbs205.pdf.

‘‘Low income country’’ is a designation used by the

World Bank to classify economies (see World Bank,

the exposure is denominated in the

sovereign’s currency and the U.S.

banking organization has at least an

equivalent amount of liabilities in that

foreign currency.

Question 3: The agencies solicit

comment on the proposed methodology

for risk weighting sovereign exposures.

Are there other alternative

methodologies for risk weighting

sovereign exposures that would be more

appropriate? Provide specific examples

and supporting data.

2. Exposures to Certain Supranational

Entities and Multilateral Development

Banks

Under the general risk-based capital

rules, exposures to certain supranational

entities and multilateral development

banks (MDB) receive a 20 percent risk

weight. Consistent with the Basel

framework’s treatment of exposures to

supranational entities, the agencies

propose to apply a zero percent risk

weight to exposures to the Bank for

International Settlements, the European

Central Bank, the European

Commission, and the International

Monetary Fund.

Similarly, the agencies propose to

apply a zero percent risk weight to

exposures to an MDB in accordance

with the Basel framework. The proposal

would define an MDB to include the

International Bank for Reconstruction

and Development, the Multilateral

Investment Guarantee Agency, the

International Finance Corporation, the

Inter-American Development Bank, the

Asian Development Bank, the African

Development Bank, the European Bank

for Reconstruction and Development,

the European Investment Bank, the

European Investment Fund, the Nordic

Investment Bank, the Caribbean

Development Bank, the Islamic

Development Bank, the Council of

Europe Development Bank, and any

other multilateral lending institution or

regional development bank in which the

U.S. government is a shareholder or

contributing member or which the

primary federal supervisor determines

poses comparable credit risk

ank, the

European Investment Fund, the Nordic

Investment Bank, the Caribbean

Development Bank, the Islamic

Development Bank, the Council of

Europe Development Bank, and any

other multilateral lending institution or

regional development bank in which the

U.S. government is a shareholder or

contributing member or which the

primary federal supervisor determines

poses comparable credit risk.

The agencies believe this treatment is

appropriate in light of the generally

high-credit quality of MDBs, their strong

shareholder support, and a shareholder

structure comprised of a significant

proportion of sovereign entities with

strong creditworthiness. Exposures to

regional development banks and

multilateral lending institutions that are

not covered under the definition of

MDB generally would be treated as

corporate exposures.

3. Exposures to Government-Sponsored

Entities

The agencies are proposing to assign

a 20 percent risk weight to exposures to

GSEs that are not equity exposures and

a 100 percent risk weight to preferred

stock issued by a GSE. While this is

consistent with the current treatment

under the FDIC and Board’s rules, it

would represent a change to the OCC’s

general risk-based capital rules for

national banks, which currently allow a

banking organization to apply a 20

percent risk weight to GSE preferred

stock.21

Although the GSEs currently are in

the conservatorship of the Federal

Housing Finance Agency and receive

capital support from the U.S. Treasury,

they remain privately-owned

corporations, and their obligations do

not have the explicit guarantee of the

full faith and credit of the United States.

The agencies have long held the view

that obligations of the GSEs should not

be accorded the same treatment as

obligations that carry the explicit

guarantee of the U.S. government.

Therefore, the agencies propose to

continue to apply a 20 percent risk

weight to debt exposures to GSEs.

4

eir obligations do

not have the explicit guarantee of the

full faith and credit of the United States.

The agencies have long held the view

that obligations of the GSEs should not

be accorded the same treatment as

obligations that carry the explicit

guarantee of the U.S. government.

Therefore, the agencies propose to

continue to apply a 20 percent risk

weight to debt exposures to GSEs.

4. Exposures to Depository Institutions,

Foreign Banks, and Credit Unions

The general risk-based capital rules

assign a 20 percent risk weight to all

exposures to U.S. depository

institutions and foreign banks

incorporated in an OECD country.

Short-term exposures to foreign banks

incorporated in a non-OECD country

receive a 20 percent risk weight and

long-term exposures to such entities

receive a 100 percent risk weight. The

Basel II standardized approach allows

for risk weights for a claim on a bank

to be one risk weight category higher

than the risk weight assigned to the

sovereign exposures of a bank’s home

country. As described below, the

agencies’ propose treatment for

depository institutions, foreign banks,

and credit unions that is consistent with

this approach.

Under the proposal, exposures to U.S.

depository institutions and credit

unions would be assigned a 20 percent

risk weight.22 For exposures to foreign

banks, the proposal would include risk

weights based on the CRC applicable to

the entity’s home country, in

accordance with table 3.23 Specifically,

an exposure to a foreign bank would

receive a risk weight one category

higher than the risk weight assigned to

a direct exposure to the entity’s home

country, as illustrated in table 3.

Exposures to a foreign bank in a country

that does not have a CRC would receive

a 100 percent risk weight

ed on the CRC applicable to

the entity’s home country, in

accordance with table 3.23 Specifically,

an exposure to a foreign bank would

receive a risk weight one category

higher than the risk weight assigned to

a direct exposure to the entity’s home

country, as illustrated in table 3.

Exposures to a foreign bank in a country

that does not have a CRC would receive

a 100 percent risk weight. A banking

organization would be required to

assign a 150 percent risk weight to an

exposure to a foreign bank immediately

upon determining that an event of

sovereign default has occurred in the

bank’s home country, or if an event of

sovereign default has occurred in the

foreign bank’s home country during the

previous five years.

TABLE 3—PROPOSED RISK WEIGHTS

FOR EXPOSURES TO FOREIGN BANKS

Risk weight

(in percent)

Sovereign CRC:

0–1 .................................

20

2 .....................................

50

3 .....................................

100

4–7 .................................

150

No CRC .........................

100

Sovereign Default ..........

150

Exposures to a depository institution

or foreign bank that are includable in

the regulatory capital of that entity

would receive a risk weight of 100

percent, unless the exposure is (i) An

equity exposure, (ii) a significant

investment in the capital of an

unconsolidated financial institution in

the form of common stock under section

22 of the proposal, (iii) an exposure that

is deducted from regulatory capital

under section 22 of the proposal, or (iv)

an exposure that is subject to the 150

percent risk weight under section 32 of

the proposal.

In 2011, the BCBS revised certain

aspects of the Basel capital framework

to address potential adverse effects of

the framework on trade finance in low

income countries.24 In particular, the

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weight under section 32 of

the proposal.

In 2011, the BCBS revised certain

aspects of the Basel capital framework

to address potential adverse effects of

the framework on trade finance in low

income countries.24 In particular, the

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‘‘How We Classify Countries,’’ available at http://

data.worldbank.org/about/country-classifications).

25 The BCBS indicated that it removed the

sovereign floor for such exposures to make access

to trade finance instruments easier and less

expensive for low income countries. Absent

removal of the floor, the risk weight assigned to

these exposures, where the issuing banking

organization is incorporated in a low income

country, typically would be 100 percent.

26 Political subdivisions of the United States

would include a state, county, city, town or other

municipal corporation, a public authority, and

generally any publicly owned entity that is an

instrument of a state or municipal corporation.

framework was revised to remove the

sovereign floor for trade finance-related

claims on banking organizations under

the Basel II standardized approach.25

The proposed requirements would

incorporate this revision and permit a

banking organization to assign a 20

percent risk weight to self-liquidating,

trade-related contingent items that arise

from the movement of goods and that

have a maturity of three months or less.

The Basel capital framework treats

exposures to securities firms that meet

certain requirements like exposures to

depository institutions. However, the

agencies do not believe that the risk

profile of these firms is sufficiently

similar to depository institutions to

justify that treatment

ingent items that arise

from the movement of goods and that

have a maturity of three months or less.

The Basel capital framework treats

exposures to securities firms that meet

certain requirements like exposures to

depository institutions. However, the

agencies do not believe that the risk

profile of these firms is sufficiently

similar to depository institutions to

justify that treatment. Accordingly, the

agencies propose to require banking

organizations to treat exposures to

securities firms as corporate exposures,

which parallels the treatment of bank

holding companies and savings and

loan holding companies, as described in

section II.B.6 of this preamble.

5. Exposures to Public Sector Entities

The agencies’ general risk-based

capital rules assign a 20 percent risk

weight to general obligations of states

and other political subdivisions of

OECD countries.26 However, exposures

that rely on repayment from specific

projects (for example, revenue bonds)

are assigned a risk weight of 50 percent.

Other exposures to state and political

subdivisions of OECD countries

(including industrial revenue bonds)

and exposures to political subdivisions

of non-OECD countries receive a risk

weight of 100 percent. The risk weights

assigned to revenue obligations are

higher than the risk weight assigned to

general obligations because repayment

of revenue obligations depends on

specific projects, which present more

risk relative to a general repayment

obligation of a state or political

subdivision of a sovereign.

The agencies are proposing to apply

the same risk weights to exposures to

U.S. states and municipalities as the

general risk-based capital rules apply.

Under the proposal, these political

subdivisions would be included in the

definition of public sector entity PSE.

Consistent with both the current rules

and the Basel capital framework, the

agencies propose to define a PSE as a

state, local authority, or other

governmental subdivision below the

level of a sovereign

states and municipalities as the

general risk-based capital rules apply.

Under the proposal, these political

subdivisions would be included in the

definition of public sector entity PSE.

Consistent with both the current rules

and the Basel capital framework, the

agencies propose to define a PSE as a

state, local authority, or other

governmental subdivision below the

level of a sovereign. This definition

would not include government-owned

commercial companies that engage in

activities involving trade, commerce, or

profit that are generally conducted or

performed in the private sector.

Under the proposal, a banking

organization would assign a 20 percent

risk weight to a general obligation

exposure to a PSE that is organized

under the laws of the United States or

any state or political subdivision thereof

and a 50 percent risk weight to a

revenue obligation exposure to such a

PSE. A general obligation would be

defined as a bond or similar obligation

that is backed by the full faith and credit

of a PSE. A revenue obligation would be

defined as a bond or similar obligation

that is an obligation of a PSE, but which

the PSE is committed to repay with

revenues from a specific project

financed rather than general tax funds.

Similar to the Basel framework’s use

of home country risk weights to assign

a risk weight to a PSE exposure, the

agencies propose to require a banking

organization to apply a risk weight to an

exposure to a non-U.S. PSE based on (1)

the CRC applicable to the PSE’s home

country and (2) whether the exposure is

a general obligation or a revenue

obligation, in accordance with table 4.

The risk weights assigned to revenue

obligations would be higher than the

risk weights assigned to a general

obligation issued by the same PSE, as

set forth in table 4. Similar to exposures

to a foreign bank, exposures to a non-

U.S. PSE in a country that does not have

a CRC rating would receive a 100

percent risk weight. Exposures to a non-

U.S

e

obligation, in accordance with table 4.

The risk weights assigned to revenue

obligations would be higher than the

risk weights assigned to a general

obligation issued by the same PSE, as

set forth in table 4. Similar to exposures

to a foreign bank, exposures to a non-

U.S. PSE in a country that does not have

a CRC rating would receive a 100

percent risk weight. Exposures to a non-

U.S. PSE in a country that has defaulted

on any outstanding sovereign exposure

or that has defaulted on any sovereign

exposure during the previous five years

would receive a 150 percent risk weight.

Table 4 illustrates the proposed risk

weights for exposures to non-U.S. PSEs.

TABLE 4—PROPOSED RISK WEIGHTS FOR EXPOSURES TO NON-U.S. PSE GENERAL OBLIGATIONS AND REVENUE

OBLIGATIONS

[In percent]

Risk weight for

exposures to

non-U.S. PSE

general

obligations

Risk weight for

exposures to

non-U.S. PSE

revenue

obligations

Sovereign CRC:

0–1 ........................................................................................................................................................

20

50

2 ............................................................................................................................................................

50

100

3 ............................................................................................................................................................

100

100

4–7 ........................................................................................................................................................

150

150

No CRC .......................................................................................................................................................

100

100

Sovereign Default .......................................................................................................................................

...................................................................

150

150

No CRC .......................................................................................................................................................

100

100

Sovereign Default ........................................................................................................................................

150

150

In certain cases, under the general

risk-based capital rules, the agencies

have allowed a banking organization to

rely on the risk weight that a foreign

banking supervisor allows to assign to

PSEs in that supervisor’s country.

Consistent with that approach, the

agencies propose to allow a banking

organization to apply a risk weight to an

exposure to a non-U.S. PSE according to

the risk weight that the foreign banking

organization supervisor allows to assign

to it. In no event, however, may the risk

weight for an exposure to a non-U.S.

PSE be lower than the risk weight

assigned to direct exposures to that

PSE’s home country.

Question 4: The agencies request

comment on the proposed treatment of

exposures to PSEs.

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

27 See, for example, 76 FR 73526 (Nov. 29, 2011)

and 76 FR 73777 (Nov. 29, 2011).

28 See 12 CFR part 3, appendix A, section 3(c)(iii)

and 12 CFR part 167.6(a)(1)(iii) (OCC); 12 CFR parts

208 and 225, appendix A, section III.C.3 (Board); 12

CFR part 325, appendix A, section II.C.3 and 12

CFR 390.461 (definition of ‘‘qualifying mortgage

loan’’) (FDIC).

6. Corporate Exposures

Under the agencies’ general risk-based

capital rules, credit exposures to

companies that are not depository

institutions or securitization vehicles

generally are assigned to the 100 percent

risk weight category

25, appendix A, section III.C.3 (Board); 12

CFR part 325, appendix A, section II.C.3 and 12

CFR 390.461 (definition of ‘‘qualifying mortgage

loan’’) (FDIC).

6. Corporate Exposures

Under the agencies’ general risk-based

capital rules, credit exposures to

companies that are not depository

institutions or securitization vehicles

generally are assigned to the 100 percent

risk weight category. A 20 percent risk

weight is assigned to claims on, or

guaranteed by, a securities firm

incorporated in an OECD country, that

satisfy certain conditions.

The proposed requirements would be

generally consistent with the general

risk-based capital rules and require

banking organizations to assign a 100

percent risk weight to all corporate

exposures. The proposal would define a

corporate exposure as an exposure to a

company that is not an exposure to a

sovereign, the Bank for International

Settlements, the European Central Bank,

the European Commission, the

International Monetary Fund, an MDB,

a depository institution, a foreign bank,

or a credit union, a PSE, a GSE, a

residential mortgage exposure, a pre-

sold construction loan, a statutory

multifamily mortgage, an HVCRE

exposure, a cleared transaction, a

default fund contribution, a

securitization exposure, an equity

exposure, or an unsettled transaction. In

contrast to the agencies’ general risk-

based capital rules, securities firms

would be subject to the same treatment

as corporate exposures.

The agencies evaluated a number of

alternatives to credit ratings to provide

a more granular risk weight treatment

for corporate exposures.27 However,

each of these alternatives was viewed as

either having significant drawbacks,

being too operationally complex, or as

not being sufficiently developed to be

proposed in this NPR.

7. Residential Mortgage Exposures

The general risk-based capital rules

assign exposures secured by one-to-four

family residential properties to either

the 50 percent or the 100 percent risk-

weight category

ver,

each of these alternatives was viewed as

either having significant drawbacks,

being too operationally complex, or as

not being sufficiently developed to be

proposed in this NPR.

7. Residential Mortgage Exposures

The general risk-based capital rules

assign exposures secured by one-to-four

family residential properties to either

the 50 percent or the 100 percent risk-

weight category. Exposures secured by a

first lien on a one-to-four family

residential property that meet certain

prudential underwriting criteria and

that are paying according to their terms

generally receive a 50 percent risk

weight.28 The Basel II standardized

approach similarly applies a broad

treatment to residential mortgages,

assigning a risk weight of 35 percent for

most first-lien residential mortgage

exposures that meet certain prudential

criteria, such as the existence of a

substantial margin of additional security

over the amount of the loan.

During the recent market turmoil, the

U.S. housing market experienced

significant deterioration and

unprecedented levels of mortgage loan

defaults and home foreclosures. The

causes for the significant increase in

loan defaults and home foreclosures

included inadequate underwriting

standards; the proliferation of high-risk

mortgage products, such as so-called

pay-option adjustable rate mortgages,

which provide for negative amortization

and significant payment shock to the

borrower; the practice of issuing

mortgage loans to borrowers with

unverified or undocumented income;

and a precipitous decline in housing

prices coupled with a rise in

unemployment. Given the

characteristics of the U.S. residential

mortgage market and this recent

experience, the agencies believe that a

wider range of risk weights based on key

risk factors is more appropriate for the

U.S. residential mortgage market.

Therefore, the agencies are proposing a

risk-weight framework that is different

from both the general risk-based capital

rules and the Basel capital framework

the

characteristics of the U.S. residential

mortgage market and this recent

experience, the agencies believe that a

wider range of risk weights based on key

risk factors is more appropriate for the

U.S. residential mortgage market.

Therefore, the agencies are proposing a

risk-weight framework that is different

from both the general risk-based capital

rules and the Basel capital framework.

a. Categorization of Residential

Mortgage Exposures; Loan-to-Value.

The proposed definition of a

residential mortgage exposure would be

an exposure that is primarily secured by

a first or subsequent lien on one-to-four

family residential property (and not a

securitization exposure, equity

exposure, statutory multifamily

mortgage, or presold construction loan).

The definition of residential mortgage

exposure also would include an

exposure that is primarily secured by a

first or subsequent lien on residential

property that is not one-to-four family if

the original and outstanding amount of

the exposure is $1 million or less. A

first-lien residential mortgage exposure

would be a residential mortgage

exposure secured by a first lien or by

first and junior lien(s) where no other

party holds an intervening lien. A

junior-lien residential mortgage

exposure would be a residential

mortgage exposure that is not a first-lien

residential mortgage exposure.

The NPR would maintain the current

risk-based capital treatment for

residential mortgage exposures that are

guaranteed by the U.S. government or

its agency. Accordingly, residential

mortgage exposures that are

unconditionally guaranteed by the U.S.

government or a U.S. agency would

receive a zero percent risk weight, and

residential mortgage exposures that are

conditionally guaranteed by the U.S.

government or a U.S. agency would

receive a 20 percent risk weight.

Under the NPR, a banking

organization would divide residential

mortgage exposures that are not

guaranteed by the U.S. government or

one of its agencies into two categories

government or a U.S. agency would

receive a zero percent risk weight, and

residential mortgage exposures that are

conditionally guaranteed by the U.S.

government or a U.S. agency would

receive a 20 percent risk weight.

Under the NPR, a banking

organization would divide residential

mortgage exposures that are not

guaranteed by the U.S. government or

one of its agencies into two categories.

The agencies propose to apply relatively

low risk weights for residential

mortgage exposures that do not have

product features associated with higher

credit risk, and higher risk weights for

nontraditional loans that present greater

risk. As described further below, the

risk weight assigned to a residential

mortgage exposure will also depend on

the loan’s loan-to-value ratio.

The standards for category 1

residential mortgage exposures reflect

those underwriting and product features

that have demonstrated a lower risk of

default both through supervisory

experience and observations from the

recent foreclosure crisis. Thus, the

definition generally excludes mortgage

products that include terms or other

characteristics that the agencies have

found to be indicative of higher risk. For

example, the standards include

consideration and documentation of a

borrower’s ability to repay, and would

exclude certain higher risk product

features, such as deferral of principal

and balloon loans. Category 1

residential mortgages also would not

include any junior lien mortgages. All

residential mortgages that would not

meet the definition of category 1

residential mortgage would be category

2 residential mortgages

onsideration and documentation of a

borrower’s ability to repay, and would

exclude certain higher risk product

features, such as deferral of principal

and balloon loans. Category 1

residential mortgages also would not

include any junior lien mortgages. All

residential mortgages that would not

meet the definition of category 1

residential mortgage would be category

2 residential mortgages. See section 2 of

the proposed rules for the definitions of

‘‘category 1 residential mortgage’’ in the

related notice titled ‘‘Regulatory Capital

Rules: Regulatory Capital,

Implementation of Basel III, Minimum

Regulatory Capital Ratios, Capital

Adequacy, Transition Provisions, and

Prompt Corrective Action.’’

The agencies believe that the

proposed divergence in risk weights for

category 1 and category 2 residential

mortgage exposures appropriately

reflects differences in risk between

mortgages in the two categories. Because

category 2 residential mortgage

exposures generally are of higher risk

than category 1 residential mortgage

exposures, the minimum proposed risk

weight for a category 2 residential

mortgage exposure is 100 percent.

Under the general risk-based capital

rules, a banking organization must

assign a minimum 100 percent risk

weight to an exposure secured by a

junior lien on residential property,

unless the banking organization also

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is 100 percent.

Under the general risk-based capital

rules, a banking organization must

assign a minimum 100 percent risk

weight to an exposure secured by a

junior lien on residential property,

unless the banking organization also

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

29 See, for example, ‘‘Interagency Guidance on

Nontraditional Mortgage Product Risks,’’ 71 FR

58609 (Oct. 4, 2006) and ‘‘Statement on Subprime

Mortgage Lending,’’ 72 FR 37569 (July 10, 2007). In

addition, there is ongoing implementation of certain

aspects of the mortgage reform initiatives under

various sections of the Dodd-Frank Act. For

example, section 1141 of the Dodd-Frank Act

amended the Truth in Lending Act to prohibit

creditors from making mortgage loans without

regard to a consumer’s repayment ability. See 15

U.S.C. 1639c.

30 12 CFR part 34, subpart C (OCC); 12 CFR part

208, subpart E and 12 CFR part 225, subpart G

(Board); 12 CFR part 323 and 12 CFR part 390,

subpart X (FDIC).

31 12 CFR part 34, subpart D and 12 CFR part 160

(OCC); 12 CFR part 208, subpart E (Board); 12 CFR

part 323 and 12 CFR 390.442 (FDIC).

holds the first lien and there are no

intervening liens. The agencies also

propose to require a banking

organization that holds both a first and

junior lien on the same property to

combine the exposures into one first-

lien residential mortgage exposure for

purposes of determining the loan-to-

value (LTV) and risk weight for the

combined exposure. However, a banking

organization could only categorize the

combined exposure as a category 1

residential mortgage exposure if the

terms and characteristics of both

mortgages meet all of the criteria for

category 1 residential mortgage

exposures

nto one first-

lien residential mortgage exposure for

purposes of determining the loan-to-

value (LTV) and risk weight for the

combined exposure. However, a banking

organization could only categorize the

combined exposure as a category 1

residential mortgage exposure if the

terms and characteristics of both

mortgages meet all of the criteria for

category 1 residential mortgage

exposures. This requirement would

ensure that no residential mortgage

products associated with higher risk

may be categorized as category 1

residential mortgage exposures.

Except as described in the preceding

paragraph, under this NPR, a banking

organization would classify all junior-

lien residential mortgage exposures as

category 2 residential mortgage

exposures in light of the increased risk

associated with junior liens

demonstrated in the recent foreclosure

crisis.

The proposed risk weighting would

depend on not only the mortgage

exposure’s status as a category 1 or

category 2 residential mortgage

exposure, but also on the mortgage

exposure’s LTV ratio. The amount of

equity a borrower has in a residential

property is highly correlated with

default risk, and the agencies believe

that it is appropriate that LTV be an

important component in assigning risk

weights to residential mortgage

exposures. However, the agencies stress

that the use of LTV ratios to assign risk

weights to residential mortgage

exposures is not a substitute for, and

does not otherwise release a banking

organization from, its responsibility to

have prudent loan underwriting and

risk management practices consistent

with the size, type, and risk of its

mortgage business.29

The agencies are proposing in this

NPR to require a banking organization to

calculate the LTV ratios of a residential

mortgage exposure as follows

osures is not a substitute for, and

does not otherwise release a banking

organization from, its responsibility to

have prudent loan underwriting and

risk management practices consistent

with the size, type, and risk of its

mortgage business.29

The agencies are proposing in this

NPR to require a banking organization to

calculate the LTV ratios of a residential

mortgage exposure as follows. The

denominator of the LTV ratio, that is,

the value of the property, would be

equal to the lesser of the actual

acquisition cost for the property (for a

purchase transaction) or the estimate of

a property’s value at the origination of

the loan or at the time of restructuring

or modification. The estimate of value

would be based on an appraisal or

evaluation of the property in

conformance with the agencies’

appraisal regulations 30 and should

conform to the ‘‘Interagency Appraisal

and Evaluation Guideline’’ and the

‘‘Real Estate Lending Guidelines.’’ 31 If a

banking organization’s first-lien

residential mortgage exposure consists

of both first and junior liens on a

property, a banking organization would

update the estimate of value at the

origination of the junior-lien mortgage.

The loan amount for a first-lien

residential mortgage exposure is the

unpaid principal balance of the loan

unless the first-lien residential mortgage

exposure was a combination of a first

and junior lien. In that case, the loan

amount would be the sum of the unpaid

principal balance of the first lien and

the maximum contractual principal

amount of the junior lien. The loan

amount of a junior-lien residential

mortgage exposure is the maximum

contractual principal amount of the

exposure, plus the maximum

contractual principal amounts of all

senior exposures secured by the same

residential property on the date of

origination of the junior-lien residential

mortgage exposure

e first lien and

the maximum contractual principal

amount of the junior lien. The loan

amount of a junior-lien residential

mortgage exposure is the maximum

contractual principal amount of the

exposure, plus the maximum

contractual principal amounts of all

senior exposures secured by the same

residential property on the date of

origination of the junior-lien residential

mortgage exposure.

As proposed, a banking organization

would not calculate a separate risk-

weighted asset amount for the funded

and unfunded portions of a residential

mortgage exposure. Instead, the

proposal would require only the

calculation of a single LTV ratio

representing a combined funded and

unfunded amount when calculating the

LTV ratio. Thus, the loan amount of a

first-lien residential mortgage exposure

would equal the funded principal

amount (or combined exposures

provided there is no intervening lien)

plus the exposure amount of any

unfunded commitment (that is, the

unfunded amount of the maximum

contractual amount of any commitment

multiplied by the appropriate CCF). The

loan amount of a junior-lien residential

mortgage exposure would equal the sum

of: (1) The funded principal amount of

the exposure, (2) the exposure amount

of any undrawn commitment associated

with the junior-lien exposure, and (3)

the exposure amount of any senior

exposure held by a third party on the

date of origination of the junior-lien

exposure. If a senior exposure held by

a third party includes an undrawn

commitment, such as a HELOC or a

negative amortization feature, the loan

amount for a junior-lien residential

mortgage exposure would include the

maximum contractual amount of that

commitment.

The agencies believe that the LTV

information should be readily available

from the mortgage loan documents and

thus should not present an issue for

banking organizations in calculating the

risk-based capital under the proposed

requirements

mortization feature, the loan

amount for a junior-lien residential

mortgage exposure would include the

maximum contractual amount of that

commitment.

The agencies believe that the LTV

information should be readily available

from the mortgage loan documents and

thus should not present an issue for

banking organizations in calculating the

risk-based capital under the proposed

requirements.

A banking organization would not be

able to recognize private mortgage

insurance (PMI) when calculating the

LTV ratio of a residential mortgage

exposure. The agencies believe that, due

to the varying degree of financial

strength of mortgage providers, it would

not be prudent to recognize PMI for

purposes of the general risk-based

capital rules.

Question 5: The agencies solicit

comments on all aspects of this NPR for

determining the risk weights of

residential mortgage loans, including

the use of the LTV ratio to determine the

risk-based capital treatment. What

alternative criteria or approaches to

categorizing mortgage loans would

enable the agencies to appropriately and

consistently differentiate among the

levels of risk inherent in different

mortgage exposures? For example,

should all residential mortgages that

meet the ‘‘qualified mortgage’’ criteria to

be established for the purposes of the

Truth in Lending Act pursuant to

section 1412 of the Dodd-Frank Act be

included in category 1? For category 1

residential mortgage exposures with

interest rates that adjust or reset, would

a proposed limit based directly on the

amount the mortgage payment increases

rather than on a change in interest rate

be more appropriate? Why or why not?

Does this proposal appropriately

address loans with balloon payments

and the risk of reverse mortgage loans?

Why or why not? Provide detailed

explanations and supporting data

wherever possible

interest rates that adjust or reset, would

a proposed limit based directly on the

amount the mortgage payment increases

rather than on a change in interest rate

be more appropriate? Why or why not?

Does this proposal appropriately

address loans with balloon payments

and the risk of reverse mortgage loans?

Why or why not? Provide detailed

explanations and supporting data

wherever possible.

Question 6: The agencies solicit

comment on whether to allow banking

organizations to recognize mortgage

insurance for purposes of calculating

the LTV ratio of a residential mortgage

exposure under the standardized

approach. What criteria could the

agencies use to ensure that only

financially sound PMI providers are

recognized?

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52900

Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

32 The RTCRRI Act mandates that each agency

provide in its capital regulations (i) a 50 percent

risk weight for certain one-to-four-family residential

pre-sold construction loans and multifamily

residential loans that meet specific statutory criteria

in the RTCRRI Act and any other underwriting

criteria imposed by the agencies, and (ii) a 100

percent risk weight for one-to-four-family

residential pre-sold construction loans for

residences for which the purchase contract is

cancelled. 12 U.S.C. 1831n, note.

b. Risk Weights for Residential Mortgage

Exposures

As proposed, a banking organization

would determine the risk weight for a

residential mortgage exposure using

table 5 based on the loan’s LTV ratio

and whether it is a category 1 or

category 2 residential mortgage

exposure

ial pre-sold construction loans for

residences for which the purchase contract is

cancelled. 12 U.S.C. 1831n, note.

b. Risk Weights for Residential Mortgage

Exposures

As proposed, a banking organization

would determine the risk weight for a

residential mortgage exposure using

table 5 based on the loan’s LTV ratio

and whether it is a category 1 or

category 2 residential mortgage

exposure.

TABLE 5—PROPOSED RISK WEIGHTS FOR RESIDENTIAL MORTGAGE EXPOSURES

Loan-to-value ratio

(in percent)

Category 1

residential

mortgage exposure

(in percent)

Category 2

residential

mortgage exposure

(in percent)

Less than or equal to 60 .....................................................................................................................

35

100

Greater than 60 and less than or equal to 80 .....................................................................................

50

100

Greater than 80 and less than or equal to 90 .....................................................................................

75

150

Greater than 90 ...................................................................................................................................

100

200

As an example risk weight

calculation, a category 1 residential

mortgage loan that has a loan amount of

$100,000 and a property value of

$125,000 at origination would result in

an LTV of 80 percent and would be

assigned a risk weight of 50 percent. If,

at the time of restructuring the loan at

a later date, the loan amount is $92,000

and the value of the property is

determined to be $110,000, the LTV

would be 84 percent and the applicable

risk weight would be 75 percent.

c. Modified or Restructured Residential

Mortgage Exposures

Under the current general risk-based

capital rules, a residential mortgage may

be assigned to the 50 percent risk weight

category only if it is performing in

accordance with its original terms or not

restructured

roperty is

determined to be $110,000, the LTV

would be 84 percent and the applicable

risk weight would be 75 percent.

c. Modified or Restructured Residential

Mortgage Exposures

Under the current general risk-based

capital rules, a residential mortgage may

be assigned to the 50 percent risk weight

category only if it is performing in

accordance with its original terms or not

restructured. The recent crises and

ongoing problems in the housing market

have demonstrated the profound

negative effect foreclosures have on

homeowners and their communities.

Where practicable, modification or

restructuring of a residential mortgage

can be an effective means for a borrower

to avoid default and foreclosure and for

a banking organization to reduce risk of

loss.

The agencies have recognized the

importance of the prudent use of

mortgage restructuring and modification

in a banking organization’s risk

management and believe that

restructuring or modification can reduce

the risk of a residential mortgage

exposure. Therefore, in this NPR, the

agencies are not proposing to

automatically raise the risk weight for a

residential mortgage exposure if it is

restructured or modified. Instead, under

this NPR, a banking organization would

categorize a modified or restructured

residential mortgage exposure as a

category 1 or category 2 residential

mortgage exposure in accordance with

the terms and characteristics of the

exposure after the modification or

restructuring.

Additionally, to ensure that the

banking organization applies a risk

weight to a restructured or modified

mortgage that most accurately reflects

its risk profile, a banking organization

could only apply (1) a risk weight lower

than 100 percent to a category 1

residential mortgage exposure or (2) a

risk weight lower than 200 percent to a

category 2 residential mortgage

exposure if the banking organization

updated the LTV ratio of the exposure

at the time of the modification or

restructuring

mortgage that most accurately reflects

its risk profile, a banking organization

could only apply (1) a risk weight lower

than 100 percent to a category 1

residential mortgage exposure or (2) a

risk weight lower than 200 percent to a

category 2 residential mortgage

exposure if the banking organization

updated the LTV ratio of the exposure

at the time of the modification or

restructuring.

In further recognition of the

importance of residential mortgage

modifications and restructuring, a

residential mortgage exposure modified

or restructured on a permanent or trial

basis solely pursuant to the U.S.

Treasury’s Home Affordable Mortgage

Program (HAMP) would not be

restructured or modified under the

proposed requirements and would

receive the risk weight provided in table

5.

The agencies believe that treating

mortgage loans modified pursuant to

HAMP in this manner is appropriate in

light of the special and unique incentive

features of HAMP, and the fact that the

program is offered by the U.S.

government to achieve the public policy

objective of promoting sustainable loan

modifications for homeowners at risk of

foreclosure in a way that balances the

interests of borrowers, servicers, and

lenders. The program includes specific

debt-to-income ratio requirements,

which should better ensure the

borrower’s ability to repay the modified

loan, and it provides for the U.S.

Treasury Department to match

reductions in monthly payments dollar-

for-dollar to reduce the borrower’s front-

end debt-to-income ratio.

Additionally, the program provides

financial incentives for servicers and

lenders to take actions to reduce the

likelihood of defaults, as well as for

servicers and borrowers designed to

help borrowers remain current on

modified loans. The structure and

amount of these cash payments align the

financial incentives of servicers,

lenders, and borrowers to encourage and

increase the likelihood of participating

borrowers remaining current on their

mortgages

rs and

lenders to take actions to reduce the

likelihood of defaults, as well as for

servicers and borrowers designed to

help borrowers remain current on

modified loans. The structure and

amount of these cash payments align the

financial incentives of servicers,

lenders, and borrowers to encourage and

increase the likelihood of participating

borrowers remaining current on their

mortgages. Each of these incentives is

important to the agencies’ determination

with respect to the appropriate

regulatory capital treatment of mortgage

loans modified under HAMP.

Question 7: The agencies request

comment on whether loan modifications

made pursuant to federal or state

housing programs warrant specific

provisions in the agencies’ risk-based

capital regulations at all, and if they do

what criteria should be considered

when determining the appropriate risk-

based capital treatment for modified

residential mortgages, given the risk

characteristics of loans that require

modification.

8. Pre-sold Construction Loans and

Statutory Multifamily Mortgages

The general risk-based capital rules

assign either a 50 percent or a 100

percent risk weight to certain one-to-

four family residential pre-sold

construction loans and to multifamily

residential loans, consistent with the

Resolution Trust Corporation

Refinancing, Restructuring, and

Improvement Act of 1991 (RTCRRI

Act).32 This NPR would maintain this

general treatment while clarifying and

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oans and to multifamily

residential loans, consistent with the

Resolution Trust Corporation

Refinancing, Restructuring, and

Improvement Act of 1991 (RTCRRI

Act).32 This NPR would maintain this

general treatment while clarifying and

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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules

updating the way the general risk-based

capital rules define these exposures.

Under this NPR, a pre-sold

construction loan would be subject to a

50 percent risk weight unless the

purchase contract is cancelled. This

NPR would define a pre-sold

construction loan as any one-to-four

family residential construction loan to a

builder that meets the requirements of

section 618(a)(1) or (2) of the RTCRRI

Act and the agencies’ existing

regulations. A multifamily mortgage that

does not meet the proposed definition of

a statutory multifamily mortgage would

be treated as a corporate exposure. The

proposed definitions are in section 2 of

the proposed rules in the related notice

titled ‘‘Regulatory Capital Rules:

Regulatory Capital, Implementation of

Basel III, Minimum Regulatory Capital

Ratios, Capital Adequacy, Transition

Provisions, and Prompt Corrective

Action.’’

9. High Volatility Commercial Real

Estate Exposures

In this NPR, the agencies are

including a new risk-based capital

treatment for certain commercial real

estate exposures that currently receive a

100 percent risk weight under the

general risk-based capital rules.

Supervisory experience has

demonstrated that certain acquisition,

development, and construction (ADC)

loans exposures present unique risks for

which the agencies believe banking

organizations should hold additional

capital

risk-based capital

treatment for certain commercial real

estate exposures that currently receive a

100 percent risk weight under the

general risk-based capital rules.

Supervisory experience has

demonstrated that certain acquisition,

development, and construction (ADC)

loans exposures present unique risks for

which the agencies believe banking

organizations should hold additional

capital. Accordingly, the agencies

propose to require banking

organizations to assign a 150 percent

risk weight to any High Volatility

Commercial Real Estate Exposure

(HVCRE). The proposal would define an

HVCRE exposure to include any credit

facility that finances or has financed the

acquisition, development, or

construction (ADC) of real property,

unless the facility finances one- to four-

family residential mortgage property, or

commercial real estate projects that

meet certain prudential criteria,

including with respect to the LTV ratio

and capital contributions or expense

contributions of the borrower. See the

definition of ‘‘high volatility

commercial real estate exposure’’ in

section 2 of the proposed rules in the

related notice entitled ‘‘Regulatory

Capital Rules: Regulatory Capital,

Implementation of Basel III, Minimum

Regulatory Capital Ratios, Capital

Adequacy, Transition Provisions, and

Prompt Corrective Action’’.

A commercial real estate loan that is

not an HVCRE exposure would be

treated as a corporate exposure.

Question 8: The agencies solicit

comment on the proposed treatment for

HVCRE exposures.

10. Past Due Exposures

Under the general risk-based capital

rules, the risk weight of a loan does not

change if the loan becomes past due,

with the exception of certain residential

mortgage loans. The Basel II

standardized approach provides risk

weights ranging from 50 to 150 percent

for loans that are more than 90 days past

due to reflect the increased risk of loss

for

HVCRE exposures.

10. Past Due Exposures

Under the general risk-based capital

rules, the risk weight of a loan does not

change if the loan becomes past due,

with the exception of certain residential

mortgage loans. The Basel II

standardized approach provides risk

weights ranging from 50 to 150 percent

for loans that are more than 90 days past

due to reflect the increased risk of loss.

The agencies believe that a higher risk

is appropriate for past due exposures to

reflect the increased risk associated with

such exposures

Accordingly, consistent with the

Basel capital framework and to reflect

impaired credit quality of such

exposures, the agencies propose that a

banking organization assign a risk

weight of 150 percent to an exposure

that is not guaranteed or not secured

(and that is not a sovereign exposure or

a residential mortgage exposure) if it is

90 days or more past due or on

nonaccrual. A banking organization may

assign a risk weight to the collateralized

or guaranteed portion of the past due

exposure if the collateral, guarantee, or

credit derivative meets the proposed

requirements for recognition described

in sections 36 and 37.

Question 9: The agencies solicit

comments on the proposed treatment of

past due exposures.

11. Other Assets

In this NPR, the agencies propose to

apply the following risk weights for

exposures not otherwise assigned to a

specific risk weight category, which are

generally consistent with the risk

weights in the general risk-based capital

rules:

cognition described

in sections 36 and 37.

Question 9: The agencies solicit

comments on the proposed treatment of

past due exposures.

11. Other Assets

In this NPR, the agencies propose to

apply the following risk weights for

exposures not otherwise assigned to a

specific risk weight category, which are

generally consistent with the risk

weights in the general risk-based capital

rules:

(1) A zero percent risk weight to cash

owned and held in all of a banking

organization’s offices or in transit; gold

bullion held in the banking

organization’s own vaults, or held in

another depository institution’s vaults

on an allocated basis to the extent gold

bullion assets are offset by gold bullion

liabilities; and to exposures that arise

from the settlement of cash transactions

(such as equities, fixed income, spot

foreign exchange and spot commodities)

with a central counterparty where there

is no assumption of ongoing

counterparty credit risk by the central

counterparty after settlement of the

trade and associated default fund

contributions;

(2) A 20 percent risk weight to cash

items in the process of collection; and

(3) A 100 percent risk weight to all

assets not specifically assigned a

different risk weight under this NPR

(other than exposures that would be

deducted from tier 1 or tier 2 capital).

In addition, subject to proposed

transition arrangements, a banking

organization would assign:

(1) A 100 percent risk weight to DTAs

arising from temporary differences that

the banking organization could realize

through net operating loss carrybacks;

and

ifically assigned a

different risk weight under this NPR

(other than exposures that would be

deducted from tier 1 or tier 2 capital).

In addition, subject to proposed

transition arrangements, a banking

organization would assign:

(1) A 100 percent risk weight to DTAs

arising from temporary differences that

the banking organization could realize

through net operating loss carrybacks;

and

(2) A 250 percent risk weight to MSAs

and DTAs arising from temporary

differences that the banking

organization could not realize through

net operating loss carrybacks that are

not deducted from common equity tier

1 capital pursuant to section 22(d) of the

proposal.

The proposed requirements would

provide limited flexibility to address

situations where exposures of a

depository institution holding company

or nonbank financial company

supervised by the Board, that are not

exposures typically held by depository

institutions, do not fit wholly within the

terms of another risk-weight category.

Under the proposal, such exposures

could be assigned to the risk weight

category applicable under the capital

rules for bank holding companies,

provided that (1) the depository

institution holding company or nonbank

financial company is not authorized to

hold the asset under applicable law

other than debt previously contracted or

similar authority; and (2) the risks

associated with the asset are

substantially similar to the risks of

assets that are otherwise assigned to a

risk weight category of less than 100

percent under subpart D of the proposal.

C. Off-balance Sheet Items

Under this NPR, as under the general

risk-based capital rules, a banking

organization would calculate the

exposure amount of an off-balance sheet

item by multiplying the off-balance

sheet component, which is usually the

notional amount, by the applicable

credit conversion factor (CCF)

isk weight category of less than 100

percent under subpart D of the proposal.

C. Off-balance Sheet Items

Under this NPR, as under the general

risk-based capital rules, a banking

organization would calculate the

exposure amount of an off-balance sheet

item by multiplying the off-balance

sheet component, which is usually the

notional amount, by the applicable

credit conversion factor (CCF). This

treatment would be applied to off-

balance sheet items, such as

commitments, contingent items,

guarantees, certain repo-style

transactions, financial standby letters of

credit, and forward agreements.

Also similar to the general risk-based

capital rules, a banking organization

would apply a zero percent CCF to the

unused portion of commitments that are

unconditionally cancelable by the

banking organization. For purposes of

this NPR, a commitment would mean

any legally binding arrangement that

obligates a banking organization to

extend credit or to purchase assets.

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33 12 CFR 3, appendix A, section 4(a)(11) and 12

CFR 167.6(b) (OCC); 12 CFR parts 208 and 225

appendix A, section III.B.3.a.xii (Board); 12 CFR

part 325, appendix A, section II.B.5(a) and 12 CFR

390.466(b) (FDIC).

34 12 CFR part 3, appendix A, section 4(a)(8) and

12 CFR 167.6(b) (OCC); 12 CFR part 208, appendix

A, section II.B.3.a.ii.1 and 12 CFR part 225,

appendix A, section III.B.3.a.ii.(1) (Board); and 12

CFR part 325, appendix A, section II.B.5(a) and 12

CFR part 390.466(b) (FDIC).

35 Section 165(k) of the Dodd-Frank Act (12

U.S.C. 5365(k)). This section defines an off-balance

sheet activity as an existing liability of a company

that is not currently a balance sheet liability, but

may become one upon the happening of some

future event

,

appendix A, section III.B.3.a.ii.(1) (Board); and 12

CFR part 325, appendix A, section II.B.5(a) and 12

CFR part 390.466(b) (FDIC).

35 Section 165(k) of the Dodd-Frank Act (12

U.S.C. 5365(k)). This section defines an off-balance

sheet activity as an existing liability of a company

that is not currently a balance sheet liability, but

may become one upon the happening of some

future event. Such transactions may include direct

credit substitutes in which a banking organization

substitutes its own credit for a third party;

irrevocable letters of credit; risk participations in

bankers’ acceptances; sale and repurchase

agreements; asset sales with recourse against the

seller; interest rate swaps; credit swaps;

commodities contracts; forward contracts; securities

contracts; and such other activities or transactions

as the Board may define through a rulemaking.

36 The general risk-based capital rules for savings

associations regarding the calculation of credit

equivalent amounts for derivative contracts differ

from the rules for other banking organizations. (See

12 CFR 167(a)(2) (federal savings associations) and

12 CFR 390.466(a)(2) (state savings associations)).

The savings association rules address only interest

rate and foreign exchange rate contracts and include

certain other differences. Accordingly, the

description of the general risk-based capital rules in

this preamble primarily reflects the rules applicable

Unconditionally cancelable would mean

a commitment that a banking

organization may, at any time, with or

without cause, refuse to extend credit

under the commitment (to the extent

permitted under applicable law). In the

case of a residential mortgage exposure

that is a line of credit, a banking

organization would be deemed able to

unconditionally cancel the commitment

if it can, at its option, prohibit

additional extensions of credit, reduce

the credit line, and terminate the

commitment to the full extent permitted

by applicable law

r the commitment (to the extent

permitted under applicable law). In the

case of a residential mortgage exposure

that is a line of credit, a banking

organization would be deemed able to

unconditionally cancel the commitment

if it can, at its option, prohibit

additional extensions of credit, reduce

the credit line, and terminate the

commitment to the full extent permitted

by applicable law. If a banking

organization provides a commitment

that is structured as a syndication, it

would only be required to calculate the

exposure amount for its pro rata share

of the commitment.

The agencies propose to increase a

CCF from zero percent to 20 percent for

commitments with an original maturity

of one year or less that are not

unconditionally cancelable by a banking

organization, as consistent with the

Basel II standardized approach. The

proposed requirements would maintain

the 20 percent CCF for self-liquidating,

trade-related contingent items that arise

from the movement of goods with an

original maturity of one year or less.

As under the general risk-based

capital rules, a banking organization

would apply a 50 percent CCF to

commitments with an original maturity

of more than one year that are not

unconditionally cancelable by the

banking organization; and to

transaction-related contingent items,

including performance bonds, bid

bonds, warranties, and performance

standby letters of credit.

Under this NPR, a banking

organization would be required to apply

a 100 percent CCF to off-balance sheet

guarantees, repurchase agreements,

securities lending or borrowing

transactions, financial standby letters of

credit; forward agreements, and other

similar exposures. The off-balance sheet

component of a repurchase agreement

would equal the sum of the current

market values of all positions the

banking organization has sold subject to

repurchase

ply

a 100 percent CCF to off-balance sheet

guarantees, repurchase agreements,

securities lending or borrowing

transactions, financial standby letters of

credit; forward agreements, and other

similar exposures. The off-balance sheet

component of a repurchase agreement

would equal the sum of the current

market values of all positions the

banking organization has sold subject to

repurchase. The off-balance sheet

component of a securities lending

transaction would be the sum of the

current market values of all positions

the banking organization has lent under

the transaction. For securities borrowing

transactions, the off-balance sheet

component would be the sum of the

current market values of all non-cash

positions the banking organization has

posted as collateral under the

transaction. In certain circumstances, a

banking organization may instead

determine the exposure amount of the

transaction as described in section II.F.2

of this preamble and section 37 of the

proposal.

The calculation of the off-balance

sheet component for repurchase

agreements, and securities lending and

borrowing transactions described above

represents a change to the general risk-

based capital treatment for such

transactions. Under the general risk-

based capital rules, capital is required

for any on-balance sheet exposure that

arises from a repo-style transaction (that

is, a repurchase agreement, reverse

repurchase agreement, securities

lending transaction, and securities

borrowing transaction). For example,

capital is required against the cash

receivable that a banking organization

generates when it borrows a security

and posts cash collateral to obtain the

security. However, a banking

organization faces counterparty credit

risk on a repo-style transaction,

regardless of whether the transaction

generates an on-balance sheet exposure

ction, and securities

borrowing transaction). For example,

capital is required against the cash

receivable that a banking organization

generates when it borrows a security

and posts cash collateral to obtain the

security. However, a banking

organization faces counterparty credit

risk on a repo-style transaction,

regardless of whether the transaction

generates an on-balance sheet exposure.

Therefore, in contrast to the general

risk-based capital rules, this NPR would

require a banking organization to hold

risk-based capital against all repo-style

transactions, regardless of whether they

generate on-balance sheet exposures, as

described in section 37 of the proposal.

Under the general risk-based capital

rules, a banking organization is subject

to a risk-based capital requirement

when it provides credit-enhancing

representations and warranties on assets

sold or otherwise transferred to third

parties as such positions are considered

recourse arrangements.33 However, the

general risk-based capital rules do not

impose a risk-based capital requirement

on assets sold or transferred with

representations and warranties that

contain (1) Certain early default clauses,

(2) certain premium refund clauses that

cover assets guaranteed, in whole or in

part, by the U.S. government, a U.S.

government agency, or a U.S. GSE; or (3)

warranties that permit the return of

assets in instances of fraud,

misrepresentation, or incomplete

documentation.34

Under this NPR, if a banking

organization provides a credit-

enhancing representation or warranty

on assets it sold or otherwise transferred

to third parties, including in cases of

early default clauses or premium-refund

clauses, the banking organization would

treat such an arrangement as an off-

balance sheet guarantee and apply a 100

percent credit conversion factor (CCF) to

the exposure amount

s NPR, if a banking

organization provides a credit-

enhancing representation or warranty

on assets it sold or otherwise transferred

to third parties, including in cases of

early default clauses or premium-refund

clauses, the banking organization would

treat such an arrangement as an off-

balance sheet guarantee and apply a 100

percent credit conversion factor (CCF) to

the exposure amount. The agencies are

proposing a different treatment than the

one under the general risk-based capital

rules because the agencies believe that

a banking organization should hold

capital for such exposures while credit-

enhancing representations and

warranties are in place.

Question 10: The agencies solicit

comment on the proposed treatment of

credit-enhancing representations and

warranties.

The proposed risk-based capital

treatment for off-balance sheet items is

consistent with section 165(k) of the

Dodd-Frank Act which provides that, in

the case of a bank holding company

with $50 billion or more in total

consolidated assets the computation of

capital for purposes of meeting capital

requirements shall take into account any

off-balance-sheet activities of the

company.35 The proposal complies with

the requirements of section 165(k) of the

Dodd-Frank Act by requiring a bank

holding company to hold risk-based

capital for its off-balance sheet

exposures, as described in sections 31,

33, 34 and 35 of the proposal.

D. Over-the-counter Derivative

Contracts

In this NPR, the agencies propose

generally to retain the treatment of over-

the-counter (OTC) derivatives provided

under the general risk-based capital

rules, which is similar to the current

exposure method for determining the

exposure amount for OTC derivative

contracts contained in the Basel II

standardized approach.36 The proposed

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s provided

under the general risk-based capital

rules, which is similar to the current

exposure method for determining the

exposure amount for OTC derivative

contracts contained in the Basel II

standardized approach.36 The proposed

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to state and national banks and bank holding

companies.

37 For a derivative contract with multiple

exchanges of principal, the conversion factor is

multiplied by the number of remaining payments in

the derivative contract.

38 For a derivative contract that is structured such

that on specified dates any outstanding exposure is

settled and the terms are reset so that the market

value of the contract is zero, the remaining maturity

equals the time until the next reset date. For an

interest rate derivative contract with a remaining

maturity of greater than one year that meets these

criteria, the minimum conversion factor is 0.005.

39 A banking organization would use the column

labeled ‘‘Credit (investment-grade reference asset)’’

for a credit derivative whose reference asset is an

outstanding unsecured long-term debt security

without credit enhancement that is investment

grade. A banking organization would use the

column labeled ‘‘Credit (non-investment-grade

reference asset)’’ for all other credit derivatives.

revisions to the treatment of the OTC

derivative contracts include an updated

definition of an OTC derivative contract,

a revised conversion factor matrix for

calculating the potential future exposure

(PFE), a revision of the criteria for

recognizing the netting benefits of

qualifying master netting agreements

and of financial collateral, and the

removal of the 50 percent risk weight

limit for OTC derivative contracts

he OTC

derivative contracts include an updated

definition of an OTC derivative contract,

a revised conversion factor matrix for

calculating the potential future exposure

(PFE), a revision of the criteria for

recognizing the netting benefits of

qualifying master netting agreements

and of financial collateral, and the

removal of the 50 percent risk weight

limit for OTC derivative contracts.

Under the proposed requirements, as

under the general risk-based capital

rules, a banking organization would be

required to hold risk-based capital for

counterparty credit risk for OTC

derivative contracts. As defined in this

NPR, a derivative contract is a financial

contract whose value is derived from

the values of one or more underlying

assets, reference rates, or indices of asset

values or reference rates. A derivative

contract would include an interest rate,

exchange rate, equity, or a commodity

derivative contract, a credit derivative,

and any other instrument that poses

similar counterparty credit risks. Under

the proposal, derivative contracts also

would include unsettled securities,

commodities, and foreign exchange

transactions with a contractual

settlement or delivery lag that is longer

than the lesser of the market standard

for the particular instrument or five

business days. This applies, for

example, to mortgage-backed securities

transactions that the GSEs conduct in

the To-Be-Announced market.

An OTC derivative contract would not

include a derivative contract that is a

cleared transaction, which would be

subject to a specific treatment as

described in section II.E of this

preamble

of the market standard

for the particular instrument or five

business days. This applies, for

example, to mortgage-backed securities

transactions that the GSEs conduct in

the To-Be-Announced market.

An OTC derivative contract would not

include a derivative contract that is a

cleared transaction, which would be

subject to a specific treatment as

described in section II.E of this

preamble. OTC derivative contracts

would, however, include an exposure of

a banking organization that is a clearing

member to its clearing member client

where the banking organization is either

acting as a financial intermediary and

enters into an offsetting transaction with

a central counterparty (CCP) or where

the banking organization provides a

guarantee to the CCP on the

performance of the client. These

transactions may not be treated as

cleared transactions because the

banking organization remains exposed

directly to the risk of the individual

counterparty.

To determine the risk-weighted asset

amount for an OTC derivative contract

under the proposal, a banking

organization would first determine its

exposure amount for the contract and

then apply to that amount a risk weight

based on the counterparty, eligible

guarantor, or recognized collateral.

For a single OTC derivative contract

that is not subject to a qualifying master

netting agreement (as defined further

below in this section), the exposure

amount would be the sum of (1) the

banking organization’s current credit

exposure, which would be the greater of

the mark-to-market value or zero, and

isk weight

based on the counterparty, eligible

guarantor, or recognized collateral.

For a single OTC derivative contract

that is not subject to a qualifying master

netting agreement (as defined further

below in this section), the exposure

amount would be the sum of (1) the

banking organization’s current credit

exposure, which would be the greater of

the mark-to-market value or zero, and

(2) PFE, which would be calculated by

multiplying the notional principal

amount of the OTC derivative contract

by the appropriate conversion factor, in

accordance with table 6 below.

Under this NPR, the conversion factor

matrix would be revised to include the

additional categories of OTC derivative

contracts as illustrated in table 6. For an

OTC derivative contract that does not

fall within one of the specified

categories in table 6, the PFE would be

calculated using the appropriate ‘‘other’’

conversion factor.

TABLE 6—CONVERSION FACTOR MATRIX FOR OTC DERIVATIVE CONTRACTS 37

Remaining ma-

turity 38

Interest rate

Foreign exchange

rate and gold

Credit (invest-

ment-grade ref-

erence asset) 39

Credit (non-invest-

ment-grade ref-

erence asset)

Equity

Precious metals

(except gold)

Other

One year or

less ...............

0.00

0.01

0.05

0.10

0.06

0.07

0.10

Greater than

one year and

less than or

equal to five

years .............

0.005

0.05

0.05

0.10

0.08

0.07

0.12

Greater than

five years ......

0.015

0.075

0.05

0.10

0.10

0.08

0.15

For multiple OTC derivative contracts

subject to a qualifying master netting

agreement, the exposure amount would

be calculated by adding the net current

credit exposure and the adjusted sum of

the PFE amounts for all OTC derivative

contracts subject to the qualifying

master netting agreement. The net

current credit exposure would be the

greater of zero and the net sum of all

positive and negative mark-to-market

values of the individual OTC derivative

contracts subject to the qualifying

master netting agreement

d by adding the net current

credit exposure and the adjusted sum of

the PFE amounts for all OTC derivative

contracts subject to the qualifying

master netting agreement. The net

current credit exposure would be the

greater of zero and the net sum of all

positive and negative mark-to-market

values of the individual OTC derivative

contracts subject to the qualifying

master netting agreement. The adjusted

sum of the PFE amounts would be

calculated as described in section

34(a)(2)(ii) of the proposal.

Under the general risk-based capital

rules, a banking organization must enter

into a bilateral master netting agreement

with its counterparty and obtain a

written and well-reasoned legal opinion

of the enforceability of the netting

agreement for each of its netting

agreements that cover OTC derivative

contracts to recognize the netting

benefit. Similarly, under this NPR, to

recognize netting of multiple OTC

derivative contracts, the contracts

would be required to be subject to a

qualifying master netting agreement;

however, for most transactions, a

banking organization may rely on

sufficient legal review instead of an

opinion on the enforceability of the

netting agreement as described below.

Under this NPR, a qualifying master

netting agreement would be defined as

any written, legally enforceable netting

agreement, that creates a single legal

obligation for all individual transactions

covered by the agreement upon an event

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er this NPR, a qualifying master

netting agreement would be defined as

any written, legally enforceable netting

agreement, that creates a single legal

obligation for all individual transactions

covered by the agreement upon an event

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40 See section II.F.2d of this preamble for a

discussion of the proposed definition of a repo-style

transaction.

41 See, ‘‘Capitalisation of Banking Organization

Exposures to Central Counterparties’’ (November

2011) (CCP consultative release), available at

http://www.bis.org/publ/bcbs206.pdf. Once the CCP

consultative release is finalized, the agencies expect

to take into account the BCBS revisions and

incorporate them into the agencies’ capital rules

through the regular rulemaking process, as

appropriate.

of default (including receivership,

insolvency, liquidation, or similar

proceeding) provided that certain

conditions are met. These conditions

include requirements with respect to the

banking organization’s right to terminate

the contract and lien date collateral and

meeting certain standards with respect

to legal review of the agreement to

ensure it meets the criteria in the

definition.

The legal review must be sufficient so

that the banking organization may

conclude with a well-founded basis

that, among other things the contract

would be found legal, binding, and

enforceable under the law of the

relevant jurisdiction and that the

contract meets the other requirements of

the definition. In some cases, the legal

review requirement could be met by

reasoned reliance on a commissioned

legal opinion or an in-house counsel

analysis

ganization may

conclude with a well-founded basis

that, among other things the contract

would be found legal, binding, and

enforceable under the law of the

relevant jurisdiction and that the

contract meets the other requirements of

the definition. In some cases, the legal

review requirement could be met by

reasoned reliance on a commissioned

legal opinion or an in-house counsel

analysis. In other cases, for example,

those involving certain new derivative

transactions or derivative counterparties

in jurisdictions where a banking

organization has little experience, the

banking organization would be expected

to obtain an explicit, written legal

opinion from external or internal legal

counsel addressing the particular

situation. See the definition of

‘‘qualifying master netting agreement’’

in section 2 of the proposed rules in the

related notice titled ‘‘Regulatory Capital

Rules: Regulatory Capital,

Implementation of Basel III, Minimum

Regulatory Capital Ratios, Capital

Adequacy, Transition Provisions, and

Prompt Corrective Action.’’

If an OTC derivative contract is

collateralized by financial collateral, a

banking organization would first

determine the exposure amount of the

OTC derivative contract as described in

this section. Next, to recognize the

credit risk mitigation benefits of the

financial collateral, a banking

organization could use the simple

approach for collateralized transactions

as described in section 37(b) of the

proposal. Alternatively, if the financial

collateral is marked-to-market on a daily

basis and subject to a daily margin

maintenance requirement, a banking

organization could adjust the exposure

amount of the contract using the

collateral haircut approach described in

section 37(c) of the proposal

use the simple

approach for collateralized transactions

as described in section 37(b) of the

proposal. Alternatively, if the financial

collateral is marked-to-market on a daily

basis and subject to a daily margin

maintenance requirement, a banking

organization could adjust the exposure

amount of the contract using the

collateral haircut approach described in

section 37(c) of the proposal.

Under this NPR, a banking

organization would be required to treat

an equity derivative contract as an

equity exposure and compute its risk-

weighted asset amount according to the

proposed calculation requirements

described in section 52 (unless the

contract is a covered position under

subpart F of the proposal). If the

banking organization risk weights a

contract under the Simple Risk-Weight

Approach described in section 52, it

may choose not to hold risk-based

capital against the counterparty risk of

the equity contract, so long as it does so

for all such contracts. Where the OTC

equity contracts are subject to a

qualified master netting agreement, a

banking organization would either

include or exclude all of the contracts

from any measure used to determine

counterparty credit risk exposures. If the

banking organization is treating an OTC

equity derivative contract as a covered

position under subpart F, it would

calculate a risk-based capital

requirement for counterparty credit risk

of the contract under section 34.

Similarly, if a banking organization

purchases a credit derivative that is

recognized under section 36 of the

proposal as a credit risk mitigant for an

exposure that is not a covered position

under subpart F of the proposal, it

would not be required to compute a

separate counterparty credit risk capital

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Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets; Market Discipline and Disclosure Requirements · FDIC FIL-27-2012 | Frix