DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 3
[Docket No. 00-06]
FEDERAL RESERVE SYSTEM
12 CFR Parts 208 and 225
[Regulations H and Y; Docket No. R-1055]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 325
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 567
[Docket No. 2000-15]
Risk-Based Capital Standards;
Recourse and Direct Credit Substitutes
AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of Governors of the Federal Reserve System; Federal Deposit Insurance Corporation; and Office of Thrift Supervision, Treasury.
ACTION: Joint notice of proposed rulemaking.
SUMMARY: The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), and the Office of Thrift Supervision (OTS) (collectively, the agencies) are proposing changes to their risk-based capital standards to address the regulatory capital treatment of recourse obligations and direct credit substitutes that expose banks, bank holding companies, and thrifts (collectively, banking organizations) to credit risk. The proposal treats recourse obligations and direct credit substitutes more consistently than under the agencies' current risk-based capital standards. In addition, the agencies would use credit ratings and certain alternative approaches to match the risk-based capital requirement more closely to a banking organization's relative risk of loss in asset securitizations. The proposal also requires the sponsor of a revolving credit securitization that involves an early amortization feature to hold capital against the amount of assets under management, i.e. the off-balance sheet securitized receivables.
This proposal is intended to result in more consistent treatment of recourse obligations and similar transactions among the agencies, more consistent risk-based capital treatment for certain types of transactions involving similar risk, and capital requirements that more closely reflect a banking organization's relative exposure to credit risk.
DATES: Your comments must be received by [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: Comments should be directed to:
OCC: You may send comments electronically to email@example.com or by mail to Docket No. 00-06, Communications Division, Third Floor, Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. In addition, you may send comments by facsimile transmission to (202) 874-5274. You can inspect and photocopy comments at that address.
Board: Comments, which should refer to Docket No. R-1055, may be mailed to Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW, Washington, DC 20551. Comments may also be delivered to Room B-2222 of the Eccles Building between 8:45 a.m. and 5:15 p.m. weekdays, or to the guard station in the Eccles Building courtyard on 20th Street between Constitution Avenue and C Street, NW, at any time. Comments may be inspected in Room MP-500 of the Martin Building between 9 a.m. and 5 p.m. weekdays, except as provided in 12 CFR 261.8 of the Board's Rules Regarding Availability of Information.
FDIC: Written comments should be addressed to Robert E. Feldman, Executive Secretary, Attention: Comments/OES, Federal Deposit Insurance Corporation, 550 17th Street, NW, Washington, DC 20429. Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m. (Fax number: (202) 898-3838; Internet address: firstname.lastname@example.org). Comments may be inspected and photocopied in the FDIC Public Information Center, Room 100, 801 17th Street, NW, Washington, DC, between 9:00 a.m. and 4:30 p.m. on business days.
OTS: Send comments to Manager, Dissemination Branch, Records Management and Information Policy, Office of Thrift Supervision, 1700 G Street, NW, Washington, DC 20552, Attention Docket No. 2000-15. These submissions may be hand-delivered to 1700 G Street, NW, from 9:00 a.m. to 5:00 p.m. on business days or may be sent by facsimile transmission to FAX number (202) 906-7755; or by e-mail: email@example.com. Those commenting by e-mail should include their name and telephone number. Comments will be available for inspection at 1700 G Street, NW, from 9:00 to 4:00 p.m. on business days.
FOR FURTHER INFORMATION CONTACT:
OCC: Roger Tufts, Senior Economic Advisor or Amrit Sekhon, Risk Specialist, Capital Policy Division, (202) 874-5070; Laura Goldman, 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: Thomas R. Boemio, Senior Supervisory Financial Analyst, (202) 452-2982, or Norah Barger, Assistant Director (202) 452-2402, Division of Banking Supervision and Regulation. For the hearing impaired only, Telecommunication Device for the Deaf (TDD), Diane Jenkins, (202) 452-3544, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW, Washington, DC 20551.
FDIC: Robert F. Storch, Chief, Accounting Section, Division of Supervision, (202) 898-8906; or Jamey Basham, Counsel, Legal Division, (202) 898-7265, Federal Deposit Insurance Corporation, 550 17th Street, NW, Washington, DC 20429.
OTS: Michael D. Solomon, Senior Program Manager for Capital Policy, Supervision Policy, (202) 906-5654; or Karen Osterloh, Assistant Chief Counsel (202) 906-6639, Office of Thrift Supervision, 1700 G Street, NW, Washington, DC 20552.
The agencies are proposing to amend their risk-based capital standards to change the treatment of certain recourse obligations, direct credit substitutes, and securitized transactions that expose banking organizations to credit risk. This proposal amends the agencies' risk-based capital standards to align more closely the risk-based capital treatment of recourse obligations and direct credit substitutes and to vary the capital requirements for positions in securitized transactions (and certain other credit exposures) according to their relative risk. The proposal also requires the sponsor of a revolving credit securitization that involves an early amortization feature to hold capital against the amount of assets under management in that securitization.
This proposal builds on the agencies' earlier work with respect to the appropriate risk-based capital treatment for recourse obligations and direct credit substitutes. On May 25, 1994, the agencies published in the Federal Register a proposal to reduce the capital requirement for banks for low-level recourse transactions, to treat first-loss (but not second-loss) direct credit substitutes like recourse, and to implement definitions of "recourse," "direct credit substitute," and related terms. 59 FR 27116 (May 25, 1994) (the 1994 Notice). The 1994 Notice also contained, in an advance notice of proposed rulemaking, a proposal to use credit ratings to determine the capital treatment of certain recourse obligations and direct credit substitutes. The OCC, the Board, and the FDIC subsequently implemented the capital reduction for low-level recourse transactions, thereby satisfying the requirements of section 350 of the Riegle Community Development and Regulatory Improvement Act, Public Law 103-325, sec. 350, 108 Stat. 2160, 2242 (1994) (CDRI Act).1 The OTS risk-based capital regulation already included the low-level recourse treatment required by the statute.2 The agencies did not issue a final regulation on the remaining elements of the 1994 Notice.
On November 5, 1997, the agencies published another notice of proposed rulemaking. 62 FR 59943 (1997 Proposal). In the 1997 Proposal, the agencies proposed to use credit ratings from nationally recognized statistical rating organizations to determine the capital requirement for recourse obligations, direct credit substitutes, and senior asset-backed securities. Additionally, the 1997 Proposal requested comment on a series of options and alternatives to supplement or replace the ratings-based approach.
In June 1999, the Basel Committee on Banking Supervision issued a consultative paper, "A New Capital Adequacy Framework, that sets forth possible revisions to the 1988 Basel Accord.3 The Basel consultative paper discusses potential modifications to the current capital standards, including the capital treatment of securitizations. The suggested changes in the Basel consultative paper move in the same direction as this proposal by looking to external credit ratings issued by qualifying external credit assessment institutions as a basis for determining the credit quality and the resulting capital treatment of securitizations.
A. Asset Securitization
Asset securitization is the process by which loans or other credit exposures are pooled and reconstituted into securities, with one or more classes or positions, that may then be sold. Securitization4 provides an efficient mechanism for banking organizations to buy and sell loan assets or credit exposures and thereby to make them more liquid.
Securitizations typically carve up the risk of credit losses from the underlying assets and distribute it to different parties. The "first dollar," or subordinate, loss position is first to absorb credit losses; the most "senior" investor position is last; and there may be one or more loss positions in between ("second dollar" loss positions). Each loss position functions as a credit enhancement for the more senior loss positions in the structure.
For residential mortgages sold through certain Federally-sponsored mortgage programs, a Federal government agency or Federal government sponsored enterprise (GSE) guarantees the securities sold to investors. However, many of today's asset securitization programs involve nonmortgage assets or are not Federally supported in any way. Sellers of these privately securitized assets therefore often provide other forms of credit enhancement--first and second dollar loss positions--to reduce investors' risk of credit loss.
A seller may provide this credit enhancement itself through recourse arrangements. As defined in this proposal, "recourse" refers to the risk of credit loss that a banking organization retains in connection with the transfer of its assets. Banking organizations have long provided recourse in connection with sales of whole loans or loan participations; today, recourse arrangements frequently are associated with asset securitization programs.
A seller may also arrange for a third party to provide credit enhancement5 in an asset securitization. If the third-party enhancement is provided by another banking organization, that organization assumes some portion of the assets' credit risk. In this proposal, all forms of third-party enhancements, i.e., all arrangements in which a banking organization assumes risk of credit loss from third-party assets or other claims that it has not transferred, are referred to as "direct credit substitutes." The economic substance of a banking organization's risk of credit loss from providing a direct credit substitute can be identical to its risk of credit loss from transferring an asset with recourse.
Depending on the type of securitization transaction, the sponsor of a securitization may provide a portion of the total credit enhancement internally, as part of the securitization structure, through the use of spread accounts, overcollateralization, retained subordinated interests, or other similar forms of on-balance sheet assets. When these or other types of internal enhancements are provided, the enhancements are considered a form of recourse for risk-based capital purposes. Many asset securitizations use a combination of internal enhancement, recourse, and third-party enhancement to protect investors from risk of credit loss.
B. Risk Management of Exposures Arising from Securitization Activities
While asset securitization can enhance both credit availability and a banking organization's profitability, managing the risks associated with this activity can pose significant challenges. This is because the risks involved, while not new to banking organizations, may be less obvious and more complex than the risks of traditional lending. Specifically, securitization can involve credit, liquidity, operational, legal, and reputational risks in concentrations and forms that may not be fully recognized by management or adequately incorporated into a banking organization's risk management systems.
The risk-based capital treatment described in this proposal provides one important way of addressing the credit risk presented by securitization activities, but a banking organization's compliance with capital standards should be complemented by effective risk management strategies. The agencies expect that banking organizations will identify, measure, monitor and control the risks of their securitization activities (including synthetic securitizations6 using credit derivatives) and explicitly incorporate the full range of risks into their risk management systems. Management is responsible for having adequate policies and procedures in place to ensure that the economic substance of their risks is fully recognized and appropriately managed. Banking organizations should be able to measure and manage their risk exposure from risk positions in the securitizations, either retained or acquired, and should be able to assess the credit quality of the retained residual portfolio after the transfer of assets in a securitization transaction. The formality and sophistication with which the risks of these activities are incorporated into a banking organization's risk management system should be commensurate with the nature and volume of its securitization activities. Banking organizations with significant securitization activities, no matter what the size of their on-balance sheet assets, are expected to have more elaborate and formal approaches to manage the risks. Failure to understand the risks inherent in securitization activities and to incorporate them into risk management systems and internal capital allocations may constitute an unsafe or unsound banking practice.
Banking organizations must have adequate systems that evaluate the effect of securitization transactions on the banking organization's risk profile and capital adequacy. Based on the complexity of transactions, these systems should be capable of differentiating between the nature and quality of the risk exposures transferred versus those that the banking organization retains. Adequate management systems usually:
Have an internal system for grading credit risk exposures, including: (1) adequate differentiation of risk among risk grades; (2) adequate controls to ensure the objectivity and consistency of the rating process; and (3) analysis or evidence supporting the accuracy or appropriateness of the risk-grading system.7
Evaluate the effect of the transaction on the nature and distribution of the banking book exposures that have not been transferred in connection with securitization. This analysis should include a comparison of the banking book's risk profile before and after the transaction, including the mix of exposures by risk grade and by business or economic sector. The analysis should also include identification of any concentrations of credit risk.
Perform rigorous, forward-looking stress testing8 on exposures that have not been transferred (that is, loans and commitments remaining in the banking book), transferred exposures, and exposures retained to facilitate transfers (that is, credit enhancements).
Have an internal economic capital allocation methodology that provides the banking organization will have adequate capitalization to meet a specific probability that it will not become insolvent if unexpected credit losses occur and that readjusts, as necessary, the sponsoring bank's internal economic capital requirements to take into account the effect of the securitization transactions.
Banking organizations should ensure that their capital positions are sufficiently strong to support all of the risks associated with these activities on a fully consolidated basis and should maintain adequate capital in all affiliated entities engaged in these activities.
C. Current Risk-Based Capital Treatment of Recourse and Direct Credit Substitutes
Currently, the agencies' risk-based capital standards apply different treatments to recourse arrangements and direct credit substitutes. As a result, capital requirements applicable to credit enhancements do not consistently reflect credit risk. The current rules of the OCC, Board, and FDIC (the banking agencies) are also not entirely consistent with those of the OTS.
The agencies' risk-based capital guidelines prescribe a single treatment for assets transferred with recourse, regardless of whether the transaction is reported as a financing or a sale of assets in a bank's Consolidated Reports of Condition and Income (Call Report), a bank holding company's FR Y-9 reports, or a thrift's Thrift Financial Report.9 For a transaction reported as a financing, the transferred assets remain on the balance sheet and are risk-weighted. For a transaction reported as a sale, the entire outstanding amount of the assets sold (not just the contractual amount of the recourse obligation) is converted into an on-balance sheet credit equivalent amount using a 100% credit conversion factor. This credit equivalent amount (less any applicable recourse liability account recorded on the balance sheet) is then risk-weighted.10 If the seller's balance sheet includes as an asset any retained interest in the assets sold, the retained interest is not risk-weighted separately. Thus, regardless of the method used to account for the transfer, risk-based capital is held against the full, risk-weighted amount of the transferred assets, although the transaction is subject to the low-level recourse rule, which limits the maximum risk-based capital requirement to the banking organization's maximum contractual exposure.11
For leverage capital ratio purposes, if a transfer with recourse is reported as a financing, the transferred assets remain on the transferring banking organization's balance sheet and the banking organization must hold leverage capital against these assets. If a transfer with recourse is reported as a sale, the assets sold do not remain on the selling banking organization's balance sheet and the banking organization need not hold leverage capital against these assets. However, if the seller's balance sheet includes as an asset any retained interest in the assets sold, leverage capital must be held against the retained interest.
2. Direct Credit Substitutes
Direct credit substitutes are treated differently from recourse under the current risk-based capital standards. Under the banking agencies' current standards, off-balance sheet direct credit substitutes, such as financial standby letters of credit provided for third-party assets, carry a 100% credit conversion factor. However, only the dollar amount of the direct credit substitute is converted into an on-balance sheet credit equivalent amount, so that capital is held only against the face amount of the direct credit substitute. The capital requirement for a recourse arrangement, in contrast, generally is based on the full amount of the assets enhanced.
If a direct credit substitute covers less than 100% of the potential losses on the assets enhanced, the current capital treatment results in a lower capital charge for a direct credit substitute than for a comparable recourse arrangement. For example, if a direct credit substitute covers losses up to the first 20% of the assets enhanced, then the on-balance sheet credit equivalent amount equals that 20% amount, and risk-based capital is held against only the 20% amount. In contrast, required capital for a first-loss 20% recourse arrangement is higher because capital is held against the full outstanding amount of the assets enhanced, subject to the low-level recourse rule.
Currently, under the banking agencies' guidelines, purchased subordinated interests receive the same capital treatment as off-balance sheet direct credit substitutes. That is, the amount of the purchased subordinated interest is placed in the appropriate risk-weight category. In contrast, a banking organization that retains a subordinated interest in connection with the transfer of its own assets is considered to have transferred the assets with recourse. As a result, the banking organization must hold capital against the carrying amount of the retained subordinated interest as well as the outstanding amount of all senior interests that it supports, subject to the low-level recourse rule.
The OTS risk-based capital regulation treats some forms of direct credit substitutes (e.g., financial standby letters of credit) in the same manner as the banking agencies' guidelines. However, unlike the banking agencies, the OTS treats purchased subordinated interests (except for certain high quality subordinated mortgage-related securities) under its general recourse provisions. The risk-based capital requirement is based on the carrying amount of the subordinated interest plus all senior interests, as though the thrift owned the full outstanding amount of the assets enhanced.
3. Concerns Raised by Current Risk-based Capital Treatment
The agencies' current risk-based capital standards raise significant concerns with respect to the treatment of recourse and direct credit substitutes. First, banking organizations are often required to hold different amounts of capital for recourse arrangements and direct credit substitutes that expose the banking organization to equivalent risk of credit loss. Banking organizations are taking advantage of this anomaly, for example, by providing first-loss letters of credit to asset-backed commercial paper conduits that lend directly to corporate customers. This results in a significantly lower capital requirement than if the loans had originally been carried on the banking organizations' balance sheets and then were sold. Moreover, the current capital standards do not recognize differences in risk associated with different loss positions in asset securitizations, nor do they provide uniform definitions of recourse, direct credit substitute, and associated terms.
III. Description of the Proposal
This proposal would amend the agencies' risk-based capital standards as follows:
The proposal defines "recourse" and revises the definition of "direct credit substitute";12
It provides more consistent risk-based capital treatment for recourse obligations and direct credit substitutes;
It varies the capital requirements for positions in securitized transactions according to their relative risk exposure, using credit ratings from nationally recognized statistical rating organizations13 (rating agencies) to measure the level of risk;
It permits the limited use of a banking organization's qualifying internal risk rating system, a rating agency's or other appropriate third party's review of the credit risk of positions in structured programs, and qualifying software to determine the capital requirement for certain unrated direct credit substitutes; and
It requires the sponsor of a revolving credit securitization that involves an early amortization feature to hold capital against the amount of assets under management in that securitization.
The use of credit ratings in this proposal is similar to the 1997 Proposal. Although many commenters expressed concerns about specific details in the 1997 Proposal, commenters generally supported the goal of making the capital requirements associated with asset securitizations more rational and efficient, and viewed the 1997 Proposal as a positive step toward achieving a more consistent, rational, and efficient regulatory capital framework. The agencies have made several changes to the 1997 Proposal in response to commenters' concerns and based on further agency consideration of the issues presented.
Several options and alternatives in the 1997 Proposal have been eliminated: the modified gross-up approach, the ratings benchmark approach, and the historical losses approach.14 Commenters expressed numerous concerns about these approaches and the agencies agree that better alternatives exist.
Commenters responding to the 1997 Proposal expressed a number of concerns about the use of ratings from rating agencies to determine capital requirements, especially in the case of unrated direct credit substitutes. Commenters noted that banking organizations actively involved in the securitization business have their own internal risk rating systems, that banking organizations know their assets better than third parties, and that a requirement that a banking organization obtain a rating from a rating agency solely for regulatory capital purposes is burdensome. Some commenters also expressed skepticism about the suitability of rating agency credit ratings for regulatory capital purposes.
In the opinion of the agencies, ratings have the advantages of being relatively objective, widely used, and relied upon by investors and other participants in the financial markets. Ratings provide a flexible, efficient, market-oriented way to measure credit risk. The agencies recognize, however, that there are drawbacks to using credit ratings from rating agencies to set capital requirements. Moreover, the agencies agree with some commenters' observation that credit ratings are most useful with respect to publicly-traded positions that would be rated regardless of the agencies' risk-based capital requirements.
To minimize the need for banking organizations to obtain ratings on otherwise unrated enhancements that are provided in asset-backed commercial paper securitizations, the proposal permits banking organizations to use their own qualifying internal risk rating systems in place of ratings from rating agencies for risk weighting certain direct credit substitutes. The use of internal risk ratings to assign direct credit substitutes in asset-backed commercial paper programs to rating categories under the ratings-based approach is dependent upon the existence of adequate internal risk rating systems. The adequacy of any internal risk rating system will be depend upon a banking organization's incorporation of the prudential standards outlined in this proposal, as well as other factors recommended through supervisory guidance or on a case-by-case basis.
Finally, the agencies are proposing an additional measure to address the risk associated with early amortization features in certain asset securitizations. The managed assets approach, described in Section III.D., would apply a 20% risk weight to the amount of off-balance sheet securitized assets under management in such transactions.
A. Definitions and Scope of the Proposal
The proposal defines the term "recourse" to mean an arrangement in which a banking organization retains risk of credit loss in connection with an asset transfer, if the risk of credit loss exceeds a pro rata share of the banking organization's claim on the assets. The proposed definition of recourse is consistent with the banking agencies' longstanding use of this term, and incorporates existing agency practices regarding retention of risk in asset transfers into the risk-based capital standards.15
Currently, the term "recourse" is not defined explicitly in the banking agencies' risk-based capital guidelines. Instead, the guidelines use the term "sale of assets with recourse," which is defined by reference to the Call Report Instructions. See Call Report Instructions, Glossary (entry for "Sales of Assets for Risk-Based Capital Purposes"). Once a definition of recourse is adopted in the risk-based capital guidelines, the banking agencies would remove the cross-reference to the Call Report instructions from the guidelines. The OTS capital regulation currently provides a definition of the term "recourse," which would also be replaced once a final definition of recourse is adopted.
2. Direct Credit Substitute
The proposed definition of "direct credit substitute" complements the definition of recourse. The term "direct credit substitute" would refer to any arrangement in which a banking organization assumes risk of credit-related losses from assets or other claims it has not transferred, if the risk of credit loss exceeds the banking organization's pro rata share of the assets or other claims. Currently, under the banking agencies' guidelines, this term covers guarantee-type arrangements. As revised, it would also include explicitly items such as purchased subordinated interests, agreements to cover credit losses that arise from purchased loan servicing rights, credit derivatives and lines of credit that provide credit enhancement.
Some commenters responding to the 1997 Proposal suggested that the definition of "direct credit substitute" should exclude risk positions that are not part of an asset securitization. Although direct credit substitutes commonly are used in asset securitizations, enhancements involving similar credit risk exposure can arise in other contexts and should receive the same capital treatment as enhancements associated with securitizations.
Several commenters objected to the 1997 Proposal's treatment of direct credit substitutes as recourse. Commenters asserted that the business of providing third-party credit enhancements has historically been safe and profitable for banks and objected that the proposed capital treatment would impair the competitive position of U.S. banks and thrifts. As has been previously described, however, the current treatment of direct credit substitutes is not consistent with the treatment of recourse obligations. The agencies have concluded that the difference in treatment between the two forms of credit enhancement invites banking organizations to obtain direct credit substitutes in place of recourse obligations in order to avoid the capital requirement applicable to recourse obligations and on-balance-sheet assets. For this reason, the agencies are again proposing, as a general rule, to extend the current risk-based capital treatment of asset transfers with recourse, including the low-level recourse rule, to direct credit substitutes.
In an effort to address competitive inequities at the international level, however, the agencies have raised this issue with the bank supervisory authorities from the other countries represented on the Basel Committee on Banking Supervision. The Basel Committee's consultative paper, "A New Capital Adequacy Framework," acknowledges that the current Basel Capital Accord, upon which the agencies' risk-based capital standards are based, lacks consistency in its treatment of credit enhancements.
3. Lines of Credit
One commenter requested clarification that a line of credit that provides credit enhancement for the financial obligations of an account party could be a direct credit substitute only if it represented an irrevocable obligation to the beneficiary. A revocable line of credit would not be a direct credit substitute because the issuer could protect itself against credit losses at any time prior to a draw on the line of credit. However, an irrevocable line of credit could expose the issuer to credit losses and would constitute a direct credit substitute, if it met the criteria in the definitions. Also, any conditions attached to the issuer's ability to revoke the undrawn portion of a line of credit, or that interfere with the issuer's ability to protect itself against credit loss prior to a draw, will cause the line of credit to constitute a direct credit substitute.
4. Credit Derivatives
The proposed definitions of "recourse" and "direct credit substitute" cover credit derivatives to the extent that a banking organization's credit risk exposure exceeds its pro rata interest in the underlying obligation. The ratings-based approach therefore applies to rated instruments such as credit-linked notes issued as part of a synthetic securitization.16 The agencies request comment on the inclusion of credit derivatives in the definitions of "recourse" and "direct credit substitute," as well as on the definition of "credit derivative" contained in the proposal.
5. Risks Other than Credit Risks
A capital charge would be assessed only against arrangements that create exposure to credit or credit-related risks. This continues the agencies' current practice and is consistent with the risk-based capital standards' traditional focus on credit risk. The agencies have undertaken other initiatives to ensure that the risk-based capital standards take interest rate risk and other non-credit related market risks into account.
6. Implicit Recourse
The definitions cover all arrangements that are recourse or direct credit substitutes in form or in substance. Recourse may also exist when a banking organization assumes risk of loss without an explicit contractual agreement or, if there is a contractual limit, when the banking organization assumes risk of loss in an amount exceeding the limit. The existence of implicit recourse is often a complex and fact-specific issue, usually demonstrated by a banking organization's actions to support a securitization beyond any contractual obligation. Actions that may constitute implicit recourse include: providing voluntary support for a securitization by selling assets to a trust at a discount from book value; exchanging performing for non-performing assets; or other actions that result in a significant transfer of value in response to deterioration in the credit quality of a securitized asset pool.
To date, the agencies have taken the position that when a banking organization provides implicit recourse, it generally should hold capital in the same amount as for assets sold with recourse. However, the complexity of many implicit recourse arrangements and the variety of circumstances under which implicit recourse may be provided raise issues about whether recourse treatment is always the most appropriate way to address the level of risk that a banking organization has effectively retained or whether a different capital requirement would be warranted in some circumstances. Accordingly, the 1997 Proposal requested comment on the types of actions that should be considered implicit recourse and how the agencies should treat those actions for regulatory capital purposes.
Commenters responding to the 1997 Proposal generally supported the view that implicit recourse is best handled on a case-by-case basis, guided by the general rule that actions that demonstrate retention of risk will trigger recourse treatment of affected transactions. The agencies intend to continue to address implicit recourse case-by-case, but may issue additional guidance if needed to clarify further the circumstances in which a banking organization will be considered to have provided implicit recourse.
7. Subordinated Interests in Loans or Pools of Loans
The definitions of recourse and direct credit substitute explicitly cover a banking organization's ownership of subordinated interests in loans or pools of loans. This continues the banking agencies' longstanding treatment of retained subordinated interests as recourse and recognizes that purchased subordinated interests can also function as credit enhancements. (The OTS currently treats both retained and purchased subordinated securities as recourse obligations.) Subordinated interests generally absorb more than their pro rata share of losses (principal and interest) from the underlying assets in the event of default. For example, a multi-class asset securitization may have several classes of subordinated securities, each of which provides credit enhancement for the more senior classes. Generally, the holder of any class that absorbs more than its pro rata share of losses from the total underlying assets is providing credit protection for all of the more senior classes.17
Some commenters questioned the treatment of purchased subordinated interests as recourse. Subordinated interests expose holders to comparable risk regardless of whether the interests are retained or purchased. If purchased subordinated interests were not treated as recourse, banking organizations could avoid recourse treatment by swapping retained subordinated interests with other banking organizations or by purchasing subordinated
interests in assets originated by a conduit. The proposal would mitigate the effect of treating purchased subordinated interests as recourse by reducing the capital requirement on interests that qualify under the multi-level approach described in section III.B.
8. Representations and Warranties
When a banking organization transfers assets, including servicing rights, it customarily makes representations and warranties concerning those assets. When a banking organization purchases loan servicing rights, it may also assume representations and warranties made by the seller or a prior servicer. These representations and warranties give certain rights to other parties and impose obligations upon the seller or servicer of the assets. The proposal addresses those particular representations and warranties that function as credit enhancements, i.e. those where, typically, a banking organization agrees to protect purchasers or some other party from losses due to the default or non-performance of the obligor or insufficiency in the value of collateral. Therefore, to the extent a banking organization's representations and warranties function as credit enhancements to protect asset purchasers or investors from credit risk by obligating the banking organization to protect another party from losses due to credit risk in the transferred assets, the proposal treats them as recourse or direct credit substitutes.
The 1997 Proposal treated as recourse or a direct credit substitute any representation or warranty other than a standard representation or warranty. Standard representations and warranties were those referring to facts verified by the seller or servicer with reasonable due diligence or conditions within the control of the seller or servicer and those providing for the return of assets in the event of fraud or documentation deficiencies. Some commenters objected that the 1997 Proposal would treat as recourse many industry-standard warranties that impose only minor operational risk instead of true credit risk. Other commenters objected that the due diligence requirement was burdensome, and that it would impose compliance costs on banking organizations disproportionate to the risk assumed.
The current proposal focuses on whether a warranty allocates credit risk to the banking organization, rather than whether the warranty is somehow standard or customary within the industry. Several commenters suggested that the agencies expressly take accepted mortgage banking industry practice into account in determining whether a warranty should receive recourse treatment. However, the agencies are aware of warranties sometimes characterized as "standard" that effectively function as credit enhancements. These include warranties that transferred loans will remain of investment quality, or that no circumstances exist involving the loan collateral or borrower's credit standing that could cause the loan to become delinquent. They may also include warranties that, for seasoned mortgages, the value of the loan collateral still equals the original appraised value and the borrower's ability to pay has not changed adversely.
The proposal is consistent with the agencies' longstanding recourse treatment of representations and warranties that effectively guaranty performance or credit quality of transferred loans. However, the proposal and the agencies' longstanding practice also recognize that banking organizations typically make a number of factual warranties unrelated to ongoing performance or credit quality. These warranties entail operational risk, as opposed to the open-ended credit risk inherent in a financial guaranty. Warranties that create operational risk include: warranties that assets have been underwritten or collateral appraised in conformity with identified standards, and warranties that provide for the return of assets in instances of incomplete documentation or fraud.
Warranties can impose varying degrees of operational risk. For example, a warranty that asset collateral has not suffered damage from hazard entails risk that is offset to some extent by prudent underwriting practices requiring the borrower to provide hazard insurance to the banking organization. A warranty that asset collateral is free of environmental hazards may present acceptable operational risk for certain types of properties that have been subject to environmental assessment, depending on the circumstances. The agencies address appropriate limits for these operational risks through supervision of a banking organization's loan underwriting, sale, and servicing practices. Also, a banking organization that provides warranties to loan purchasers and investors must include associated operational risks in its risk management of exposures arising from loan sale or securitization-related activities. Banking organizations should be prepared to demonstrate to examiners that the operational risks are effectively managed.
The proposal continues the agencies' current practice of imposing recourse treatment on "early-default" clauses. Early-default clauses typically warrant that transferred loans will not become more than 30 days delinquent within a stated period, such as four months. Once the stated period has run, the early-default clause will no longer trigger recourse treatment, provided that there is no other provision that constitutes recourse. One commenter to the 1997 Proposal stated that early-default clauses carry minimal risk, and are intended to deal with inadvertent transfers of loans that are already 30-day delinquencies, or to guard against unsound originations by the loan seller. Another commenter found recourse treatment of early-default clauses to be an appropriate response to the transfer of credit risk that takes place under these clauses.
The agencies find that early-default clauses are often drafted so broadly that they are indistinguishable from a guaranty of financial assets. The agencies have even found recent examples in which early-default clauses have been expanded to cover the first year after loan transfer. Industry concerns about assets delinquent at the time of transfer or unsound originations could be dealt with by warranties directly addressing the condition of the asset at the time of transfer and compliance with stated underwriting standards or, failing that, exposure caps permitting the banking organization to take advantage of the low-level recourse rule. The proposal also requires recourse treatment for warranties providing assurances about the actual value of asset collateral, including that the market value corresponds to its appraised value or that the appraised value will be realized in the event of foreclosure and sale.
The agencies invite further comment on these issues. The agencies also invite comment on whether "premium refund" clauses should receive recourse treatment under any final rule. These clauses require the seller to refund the premium paid by the investor for any loan that prepays within a stated period after the loan is transferred. The agencies are aware of premium refund clauses with terms ranging from 90 days to 36 months.
9. Loan Servicing Arrangements
The proposed definitions of "recourse" and "direct credit substitute" cover loan servicing arrangements if the servicer is responsible for credit losses associated with the loans being serviced. However, cash advances made by residential mortgage servicers to ensure an uninterrupted flow of payments to investors or the timely collection of the mortgage loans are specifically excluded from the definitions of recourse and direct credit substitute, provided that the residential mortgage servicer is entitled to reimbursement for any significant advances.18 This type of advance is assessed risk-based capital only against the amount of the cash advance, and is assigned to the risk-weight category appropriate to the party obligated to reimburse the servicer.
If a residential mortgage servicer is not entitled to full reimbursement, then the maximum possible amount of any nonreimbursed advances on any one loan must be contractually limited to an insignificant amount of the outstanding principal on that loan in order for the servicer's obligation to make cash advances to be excluded from the definitions of recourse and direct credit substitute. This treatment reflects the agencies' traditional view that servicer cash advances meeting these criteria are part of the normal mortgage servicing function and do not constitute credit enhancements.
Commenters responding to the 1997 Proposal generally supported the proposed definition of servicer cash advances. Some commenters asked for clarification of the term "insignificant" and whether "reimbursement" includes reimbursement payable out of subsequent collections or reimbursement in the form of a general claim on the party obligated to reimburse the servicer. Nonreimbursed advances on any one loan that are generally contractually limited to no more than one percent of the amount of the outstanding principal on that loan would be considered insignificant. Reimbursement includes reimbursement payable from subsequent collections and reimbursement in the form of a general claim on the party obligated to reimburse the servicer, provided that the claim is not subordinated to other claims on the cash flows from the underlying asset pool.
Some commenters responding to the 1997 Proposal suggested that the agencies treat servicer cash advances as any advances that the servicer reasonably expects will be repaid. The agencies believe that a clear, specific standard is needed to prevent the use of servicer cash advances to circumvent the proposed risk-based capital treatment of recourse obligations and direct credit substitutes.
10. Spread Accounts and Overcollateralization
Several commenters requested that the agencies state in their rules that spread accounts and overcollateralization do not impose a risk of loss on a banking organization and are, therefore, not recourse. By its terms, the definition of recourse covers only the retention of risk in a sale of assets. Overcollateralization does not ordinarily impose a risk of loss on a banking organization, so it normally would not fall within the proposed definition of recourse. However, a retained interest in a spread account that is reflected as an asset on a selling banking organization's balance sheet (directly as an asset or indirectly as a receivable) is a form of recourse and is treated accordingly for risk-based capital purposes.
11. Interaction with Market Risk Rule
Some commenters responding to the 1997 Proposal asked for clarification of the treatment of a transaction covered by both the market risk rule and the recourse rule. Under the market risk rule,19 a position properly located in the trading account is excluded from risk-weighted assets. The banking agencies are not proposing to modify this treatment, so a position that is properly held in the trading account would not be included in risk-weighted assets, even if the position otherwise met the criteria for a recourse obligation or a direct credit substitute.
12. Participations in Direct Credit Substitutes
If a direct credit substitute is originated by a banking organization which then sells a participation in that direct credit substitute to another entity, the originating banking organization must apply a 100% conversion factor to the full amount of the assets supported by the direct credit substitute. The originating banking organization would then risk weight the credit equivalent amount of the participant's pro rata share of the direct credit substitute at the lower of the risk category appropriate to the obligor in the underlying transaction, after considering any relevant guaranties or collateral, or the risk category appropriate to the participant entity. The remaining pro rata share of the credit equivalent amount is assigned to the risk-weight category appropriate to the obligor in the underlying transaction, guarantor or collateral.
A banking organization that acquires a risk participation in a direct credit substitute must apply a 100% conversion factor to its percentage share of the direct credit substitute multiplied by the full amount of the assets supported by the credit enhancement. The credit equivalent amount is then assigned to the risk category appropriate to the obligor or, if relevant, the nature of the collateral or guaranty.
Finally, in the case of the syndication of a direct credit substitute where each banking organization is obligated only for its pro rata share of the risk and there is no recourse to the originating banking organization, each banking organization must hold risk-based capital against its pro rata share of the assets supported by the direct credit substitute.
13. Reservation of Authority
The agencies are proposing to add language to the risk-based capital standards that will provide greater flexibility in administering the standards. Banking organizations are developing novel transactions that do not fit well into the risk-weight categories and credit conversion factors set forth in the standards. Banking organizations also are devising novel instruments that nominally fit into a particular risk-weight category or credit conversion factor, but that impose risks on the banking organization at levels that are not commensurate with the nominal risk-weight or credit conversion factor for the asset, exposure or instrument. Accordingly, the agencies are proposing to add language to the standards to clarify their authority, on a case-by-case basis, to determine the appropriate risk-weight for assets and credit equivalent amounts and the appropriate credit conversion factor for off-balance sheet items in these circumstances. Exercise of this authority by the agencies may result in a higher or lower risk weight for an asset or credit equivalent amount or a higher or lower credit conversion factor for an off-balance sheet item. This reservation of authority explicitly recognizes the agencies retention of sufficient discretion to ensure that banking organizations, as they develop novel financial assets, will be treated appropriately under the risk-based capital standards.20 In addition, the agencies reserve the right to assign risk positions in securitizations to appropriate risk categories if the credit rating of the risk position is deemed to be inappropriate.
14. Privately-issued mortgage-backed securities
Currently, the agencies assign privately-issued mortgage-backed securities to the 20% risk-weight category if the underlying pool is composed entirely of mortgage-related securities issued by the Federal National Mortgage Association (Fannie Mae), Federal Loan Mortgage Corporation (Freddie Mac), or Government National Mortgage Association (Ginnie Mae). Privately-issued mortgage-backed securities backed by whole residential mortgages are now assigned to the 50% risk-weight category. The agencies propose to eliminate this "pass-through" treatment in favor of a ratings based approach. Because most mortgage-backed securities usually also receive the highest or second highest credit rating, the agencies believe that "pass-through" treatment will be redundant once the ratings-based approach is implemented and, therefore, propose to eliminate it.
B. Proposed Treatment for Rated Positions
As described in section II.A., each loss position in an asset securitization structure functions as a credit enhancement for the more senior loss positions in the structure. Currently, the risk-based capital standards do not vary the rate of capital requirement for different credit enhancements or loss positions to reflect differences in the relative risk of credit loss represented by the positions.
To address this issue, the agencies are proposing a multi-level, ratings-based approach to assess capital requirements on recourse obligations, direct credit substitutes, and senior and subordinated securities in asset securitizations based on their relative exposure to credit risk. The approach uses credit ratings from the rating agencies and, to a limited extent, banking organization's internal risk ratings and other alternatives, to measure relative exposure to credit risk and to determine the associated risk-based capital requirement. The use of credit ratings provides a way for the agencies to use determinations of credit quality relied upon by investors and other market participants to differentiate the regulatory capital treatment for loss positions representing different gradations of risk. This use permits the agencies to give more equitable treatment to a wide variety of transactions and structures in administering the risk-based capital system.
The fact that investors rely on these ratings to make investment decisions exerts market discipline on the rating agencies and gives their ratings market credibility. The market's reliance on ratings, in turn, gives the agencies confidence that it is appropriate to consider ratings as a major factor in the risk weighting of assets for regulatory capital purposes. The agencies, however, would retain their authority to override the use of certain ratings or the ratings on certain instruments, either on a case-by-case basis or through broader supervisory policy, if necessary or appropriate to address the risk to banking organizations.
Under the ratings-based approach, the capital requirement for a recourse obligation, direct credit substitute, or traded asset-backed security would be determined as follows: 21
Highest or second highest investment grade
AAA or AA
Third highest investment grade
Lowest investment grade
One category below investment grade
More than one category below investment grade, or unrated
B or unrated
Many commenters expressed concerns about the so-called "cliff effect" that would arise because of the small number of rating categories--three--contained in the 1997 Proposal. To reduce the cliff effect, which causes relatively small differences in risk to result in disproportionately large differences in the capital requirement for a risk position, the agencies are proposing to add two additional rating categories, for a total of five.
Under the proposal, the ratings-based approach is available for traded asset-backed securities 22 and for traded and non-traded recourse obligations and direct credit substitutes. A position is considered "traded" if, at the time it is rated by an external rating agency, there is a reasonable expectation that in the near future: (1) the position may be sold to investors relying on the rating; or (2) a third party may enter into a transaction (e.g., a loan or repurchase agreement) involving the position in which the third party relies on the rating of the position. If external rating agencies rate a traded position differently, the single highest rating applies.
An unrated position that is senior (in all respects, including access to collateral) to a rated position that is traded is treated as if it had the rating given the rated position, subject to the banking organization satisfying its supervisory agency that such treatment is appropriate.
Recourse obligations and direct credit substitutes not qualifying for a reduced capital charge and positions rated more than one category below investment grade receive "gross-up" treatment, that is, the banking organization holding the position would hold capital against the amount of the position plus all more senior positions, subject to the low-level recourse rule. 23 This grossed-up amount is placed into risk-weight categories according to the obligor and collateral.
The ratings-based approach is based on current ratings, so that a rating downgrade or withdrawal of a rating could change the treatment of a position under the proposal. However, a downgrade of a position by a single rating agency would not affect the capital treatment of a position if the position still qualified for the previous capital treatment under one or more ratings from a different rating agency.
C. Proposed Treatment for Non-traded and Unrated Positions
1. Ratings on non-traded positions
In the 1994 Notice, the agencies proposed to permit a banking organization to obtain a rating for a non-traded recourse obligation or direct credit substitute in order to permit that position to qualify for a favorable risk-weight. In response to the 1994 Notice, one rating agency expressed concern that use of ratings by the agencies for regulatory purposes could undermine the integrity of the rating process. Ordinarily, according to the commenter, there is a tension between the interests of the investors who rely on ratings and the interests of the issuers who pay rating agencies to generate ratings. Under the ratings-based approach in the 1994 Notice, however, the holder of a recourse obligation or direct credit substitute that was not traded or sold could, in some cases, seek a rating for the sole purposes of permitting the credit enhancement to qualify for a favorable risk weight. The rating agency expressed a strong concern that, without the counterbalancing interest of investors to rely on ratings, rating agencies may have an incentive to issue inflated ratings.
In response to this concern, the 1997 Proposal included criteria to reduce the possibility of inflated ratings and inappropriate risk weights if ratings are used for a position that is not traded. A non-traded position could qualify for the ratings-based approach only if: (1) it qualified under ratings obtained from two different rating agencies; (2) the ratings were publicly available; (3) the ratings were based on the same criteria used to rate securities sold to the public; and (4) at least one position in the securitization was traded. In comments responding to the 1997 Proposal, banking organizations expressed concern about the cost and delay associated with obtaining ratings, particularly for direct credit substitutes, that they would not need absent the agencies' adoption of a ratings-based approach for risk-based capital purposes.
In this proposal, the agencies continue to permit a non-traded recourse obligation or direct credit substitute to qualify for the ratings-based approach if the banking organization obtains ratings for the position. The agencies have retained the first three of the 1997 Proposal's four criteria for non-traded positions, but have eliminated the fourth criterion, i.e., the requirement that one position in the securitization be traded.
To address concerns expressed by commenters on the 1997 Proposal, however, the agencies have developed, and are also proposing, alternative approaches for determining the capital requirements for unrated direct credit substitutes, which are discussed in the following sections. Under each of these approaches, the banking organization must satisfy its supervisory agency that use of the approach is appropriate for the particular banking organization.
2. Use of banking organizations' internal risk ratings
The proposal would permit a banking organization with a qualifying internal risk rating system to use that system to apply the ratings-based approach to the banking organization's unrated direct credit substitutes in asset-backed commercial paper programs. Internal risk ratings could be used to qualify a credit enhancement (other than a retained recourse position) for a risk weight of 100% or 200% under the ratings-based approach, but not for a risk weight of less than 100%. This relatively limited use of internal risk ratings for risk-based capital purposes is a step towards potential adoption of broader use of internal risk ratings as discussed in the Basel Committee's June, 1999 Consultative Paper. Limiting the approach to these types of credit enhancements reflects the agencies' view, based on industry research and empirical evidence, that these positions are more likely than recourse positions to be of investment-grade credit quality, and that the banking organizations providing them are more likely to have internal risk rating systems for these credit enhancements that are sufficiently accurate to be relied on for risk-based capital calculations.
Most sophisticated banking organizations that participate extensively in the asset securitization business assign internal risk ratings to their credit exposures, regardless of the form of the exposure. Usually, internal risk ratings more finely differentiate the credit quality of a banking organization's exposures than the categories that the agencies use to evaluate credit risk during examinations of banking organizations (pass, substandard, doubtful, loss). Individual banking organizations' internal risk ratings may be associated with a certain probability of default, loss in the event of default, and loss volatility.
The credit enhancements that sponsors obtain for their commercial paper conduits are rarely rated. If an internal risk ratings approach were not available for these unrated credit enhancements, the provider of the enhancement would have to obtain two ratings solely to avoid the gross-up treatment that would otherwise apply to unrated positions in asset securitizations for risk-based capital purposes. However, before a provider of an enhancement decides whether to provide a credit enhancement for a particular transaction (and at what price), the provider will generally perform its own analysis of the transaction to evaluate the amount of risk associated with the enhancement.
Allowing banking organizations to use internal credit ratings harnesses information and analyses that they already generate rather than requiring them to obtain independent but redundant ratings from outside rating agencies. An internal risk ratings approach therefore has the potential to be less costly than a ratings-based approach that relies exclusively on ratings by the rating agencies for the risk-weighting of these positions.
Internal risk ratings that correspond to the rating categories of the rating agencies could be mapped to risk weights under the agencies' capital standards in a way that would make it possible to differentiate the riskiness of various unrated direct credit substitutes based on credit risk. However, the use of internal risk ratings raises concerns about the accuracy and consistency of the ratings, especially because the mapping of ratings to risk-weight categories will give banking organizations an incentive to rate their risk exposures in a way that minimizes the effective capital requirement. Banking organizations engaged in securitization activities that wish to use the internal risk ratings approach must ensure that their internal risk rating systems are adequate. Adequate internal risk rating systems usually:
Are an integral part of an effective risk management system that explicitly incorporates the full range of risks arising from an organization's participation in securitization activities. The system must also fully take into account the effect of such activities on the organization's risk profile and capital adequacy as discussed in Section II.B.
Link their ratings to measurable outcomes, such as the probability that a position will experience any losses, the expected losses on that position in the event of default, and the degree of variance in losses given default on that position.
Separately consider the risk associated with the underlying loans and borrowers and the risk associated with the specific positions in a securitization transaction.
Identify gradations of risk among "pass" assets, not just among assets that have deteriorated to the point that they fall into "watch" grades. Although it is not necessary for a banking organization to use the same categories as the rating agencies, its internal ratings must correspond to the ratings of the rating agencies so that agencies can determine which internal risk rating corresponds to each rating category of the rating agencies. A banking organization would have the responsibility to demonstrate to the satisfaction of its primary regulator how these ratings correspond with the rating agency standards used as the framework for this proposal. This is necessary so that the mapping of credit ratings to risk weight categories in the ratings-based approach can be applied to internal ratings.
Classify assets into each risk grade, using clear, explicit criteria, even for subjective factors.
Have independent credit risk management or loan review personnel assign or review credit risk ratings. These personnel should have adequate training and experience to ensure that they are fully qualified to perform this function.
Periodically verify, through an internal audit procedure, that internal risk ratings are assigned in accordance with the banking organization's established criteria.
Track the performance of its internal ratings over time to evaluate how well risk grades are being assigned, make adjustments to its rating system when the performance of its rated positions diverges from assigned ratings, and adjust individual ratings accordingly.
Make credit risk rating assumptions that are consistent with, or more conservative than, the credit risk rating assumptions and methodologies of the rating agencies.
The agencies also are considering whether to develop review and approval procedures governing their respective determinations of whether a particular banking organization may use the internal risk rating process. The agencies request comment on the appropriate scope and nature of that process.
If a banking organization's rating system is found to no longer be adequate, the banking organization's primary regulator may preclude it from applying the internal risk ratings approach to new transactions for risk-based capital purposes until it has remedied the deficiencies. Additionally, depending on the severity of the problems identified, the primary regulator may also decline to rely on the internal risk ratings that the banking organization has applied to previous transactions that remain outstanding for purposes of determining the banking organization's regulatory capital requirements.
3. Ratings of specific positions in structured financing programs
The agencies also propose to authorize a banking organization to use a rating obtained from a rating agency or other appropriate third party of unrated direct credit substitutes in securitizations that satisfy specifications set by the rating agency. The banking organization would need to demonstrate that the rating meets the same rating standards generally used by the rating agency for rating publicly-issued securities. In addition, the banking organization must also demonstrate to its primary regulator's satisfaction that the criteria underlying the rating agency's assignment of ratings for the program are satisfied for the particular direct credit substitute issued by the banking organization.
The proposal would also allow banking organizations to demonstrate to the agencies that it is reasonable and consistent with the standards of this proposal to rely on the rating of positions in a securitization structure under a program in which the banking organization participates if the sponsor of that program has obtained a rating. This aspect of the proposal is most likely to be useful to banking organizations with limited involvement in securitization activities. In addition, some banking organizations extensively involved in securitization activities already rely on ratings of the credit risk positions under their securitization programs as part of their risk management practices. Such banking organizations also could rely on such ratings under this proposal if the ratings are part of a sound overall risk management process and the ratings reflect the risk of non-traded positions to the banking organizations.
This approach could be used to qualify a direct credit substitute (but not a retained recourse position) for a risk weight of 100% or 200% of the face value of the position under the ratings-based approach, but not for a risk weight of less than 100%.
4. Use of qualifying rating software mapped to public rating standards
The agencies are also proposing to allow banking organizations, particularly those with limited involvement in securitization activities, to rely on qualifying credit assessment computer programs that the rating agencies or other appropriate third parties have developed for rating otherwise unrated direct credit substitutes in asset securitizations. To qualify for use by banking organizations for risk-based capital purposes, the computer programs must be tracked to the rating standards of the rating agencies. Banking organizations must demonstrate the credibility of these programs in the financial markets, which would generally be shown by the significant use of the computer program by investors and market participants for risk assessment purposes. Banking organizations also would need to demonstrate the reliability of the programs in assessing credit risk. Banking organizations may use these programs for purposes of applying the ratings-based approach under this proposal only if the banking organization satisfies its primary regulator that the programs result in credit assessments that credibly and reliably correspond with the rating of publicly issued securities by the rating agencies. Sophisticated banking organizations with extensive securitization activities generally should use this approach only if it is an integral part of their risk management systems and their systems fully capture the risks from the banking organizations' securitization activities.
This approach could be used to qualify a direct credit substitute (but not a retained recourse position) for a risk weight of 100% or 200% of the face value of the position under the ratings-based approach, but not for a risk weight of less than 100%.
D. Managed Assets Approach
When assets are securitized, the extent to which the selling or sponsoring entity transfers the risks associated with the assets depends on the structure of the securitization and the revolving nature of the assets involved. To the extent the sponsoring institution is dependent on future securitizations as a funding source, as a practical matter, the amount of risk transferred often will be limited. Revolving credits include credit card and home equity line securitizations as well as commercial loans drawn down under long-term commitments that are securitized as collateralized loan obligations (CLOs).
The early amortization feature present in some revolving credit securitizations ensures that investors will be repaid before being subject to any risk of significant credit losses. For example, if a securitized asset pool begins to experience credit deterioration to the point where the early amortization feature is triggered, then the asset-backed securities held by investors begin to rapidly pay down. This occurs because, after an early amortization feature is triggered, new receivables that are generated from the accounts designated to the securitization trust are no longer sold to investors, but are instead retained on the sponsoring banking organization's balance sheet.
Early amortization features raise several distinct concerns about risks to the seller. First, the seller's interest in the securitized assets is effectively subordinated to the interests of the investors by the payment allocation formula applied during early amortization. Investors effectively get paid first, and the seller's residual interest will therefore absorb a disproportionate share of credit losses.
Second, early amortization can create liquidity problems for the seller. For example, a credit card issuer must fund a steady stream of new credit card receivables. When a securitization trust is no longer able to purchase new receivables due to early amortization, the seller must either find an alternative buyer for the receivables or else the receivables will accumulate on the seller's balance sheet, creating the need for another source of funding.
Third, the first two risks to the seller can create an incentive for the seller to provide implicit recourse--credit enhancement beyond any pre-existing contractual obligation--to prevent early amortization. Incentives to provide implicit recourse are to some extent present in other securitizations, because of concerns about damage to the seller's reputation and its ability to securitize assets going forward if one of its securitizations performs poorly. However, the early amortization feature creates additional and more direct financial incentives to prevent early amortization through implicit recourse.
Because of their concerns about these risks, the agencies are proposing to apply a managed assets approach to securitization transactions that incorporate early amortization provisions. The approach would require a sponsoring banking organization's securitized (off-balance sheet) receivables to be included in risk-weighted assets when determining its risk-based capital requirements. The securitized, off-balance sheet assets would be assigned to the 20 percent risk category, thereby effectively applying a 1.6% risk-based capital charge to those assets.
The 1.6% capital charge against securitized assets could be limited in certain cases. If the sponsoring banking organization in a revolving credit securitization provides credit protection to investors, either in the form of retained recourse or a direct credit substitute, the sum of the regulatory capital requirements for the credit protection and the 1.6% charge on the off-balance sheet securitized assets may not exceed 8% of securitized assets for that particular securitization transaction.
A managed assets approach would require a banking organization to hold additional capital against the potential credit and liquidity risks stemming from the early amortization provisions of revolving credit securitization structures. This proposed capital charge would ensure that a banking organization maintain at least a minimum level of capital against the risks that arise when early amortization provisions are present in securitizations of revolving credits.
The agencies request comment on the purpose of early amortization provisions, the proposed managed assets approach, and on any potential effects that the approach will have on current industry practices involving revolving credit securitizations. The agencies also recognize that there may be concerns that the managed assets approach may not produce safety and soundness benefits commensurate with the additional regulatory burden that would result from a 20% risk weight on managed assets, and they request comment on possible alternative measures that would address more effectively the risks arising from early amortization provisions in revolving securitizations. For example, one alternative to the managed assets approach described here would be to require greater public disclosure of securitization performance. This additional information could allow market participants and regulators to better assess the risks inherent in revolving securitizations with early amortization provisions and the capital level appropriate for those risks. The agencies also request comment on whether the benefits of greater public disclosure outweigh the costs associated with increased reporting.
IV. Effective Date of A Final Rule Resulting from This Proposal
The agencies intend that any final rules adopted as a result of this proposal that result in increased risk-based capital requirements for banking organizations will apply only to securitization activities (as defined in the proposal) entered into or acquired after the effective date of those final rules. Conversely, any final rules that result in reduced risk-based capital requirements for banking organizations may be applied to all transactions outstanding as of the effective date of those final rules and to all subsequent transactions. Because some ongoing securitization conduits may need additional time to adapt to any new capital treatments, the agencies intend to permit banking organizations to apply the existing capital rules to asset securitizations with no fixed term, e.g., asset-backed commercial paper conduits, for up to two years after the effective date of any final rule.
V. Request for Comment
The agencies request comment on all aspects of this proposal, as well as on the specific issues described in the preamble.
VI. Regulatory Flexibility Act
OCC: Pursuant to section 605(b) of the Regulatory Flexibility Act, the OCC certifies that this proposal will not have a significant impact on a substantial number of small entities. 5 U.S.C. 601 et seq. The provisions of this proposal that increase capital requirements are likely to affect large national banks almost exclusively. Small national banks rarely sponsor or provide direct credit substitutes in asset securitizations. Accordingly, a regulatory flexibility analysis is not required.
Board: Pursuant to section 605(b) of the Regulatory Flexibility Act, the Board has determined that this proposal will not have a significant impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Board's comparison of the applicability section of this proposal with Call Report Data on all existing banks shows that application of the proposal to small entities will be the rare exception. Accordingly, a regulatory flexibility analysis is not required. In addition, because the risk-based capital standards generally do not apply to bank holding companies with consolidated assets of less than $150 million, this proposal will not affect such companies.
FDIC: Pursuant to section 605(b) of the Regulatory Flexibility Act (Public Law 96-354, 5 U.S.C. 601 et seq.), the FDIC certifies that the proposed rule will not have a significant impact on a substantial number of small entities. Comparison of Call Report data on FDIC-supervised banks to the items covered by the proposal that result in increased capital requirements shows that application of the proposal to small entities will be the infrequent exception.
OTS: Pursuant to section 605(b) of the Regulatory Flexibility Act, the OTS certifies that this proposal will not have a significant impact on a substantial number of small entities. A comparison of TFR data on OTS-supervised thrifts shows that the proposed rule would have little impact on the overall level of capital required at small thrifts, since capital requirements (other than the risk-based capital standards) are typically more binding on smaller thrifts. Moreover, the provisions of this proposal that may increase capital requirements are unlikely to affect small savings associations. Small thrifts rarely provide direct credit substitutes in asset securitizations and do not serve as sponsors of revolving securitizations. Accordingly, a regulatory flexibility analysis is not required.
VII. Paperwork Reduction Act
The Agencies have determined that this proposal does not involve a collection of information pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).
VIII. Executive Order 12866
OCC: The OCC has determined that this proposal is not a significant regulatory action for purposes of Executive Order 12866. The OCC expects that any increase in national banks' risk-based capital requirement, resulting from the proposed treatment of direct credit substitutes largely will be offset by the ability of those banks to reduce their capital requirement in accordance with the ratings-based approach. The managed assets position of the proposal may require a limited number of national banks to raise additional capital in order to remain in the category to which they are assigned currently under the OCC's prompt corrective action framework. The OCC believes that the costs associated with raising this new capital are below the thresholds prescribed in the Executive Order. Nonetheless, the impact of any final rule resulting from this proposal will depend on factors for which the agencies do not currently collect industry-wide information, such as the proportion of bank-provided direct credit substitutes that would be rated below investment grade. The OCC, therefore, welcomes any quantitative information national banks wish to provide about the impact they expect the various portions of this proposal to have if issued in final form.
OTS: The Director of the OTS has determined that this proposal does not constitute a "significant regulatory action" under Executive Order 12866. Since OTS already applies a "gross up" treatment for recourse obligations and for most direct credit substitutes, the proposal generally is likely to reduce the risk-based capital requirements for thrifts. The proposed rule would increase capital requirements only for certain direct credit substitutes issued in connection with asset securitizations or for thrifts that may serve as sponsors of revolving securitization programs. Currently, thrifts rarely participate in such activities. As a result, OTS has concluded that the proposal will have only minor effects on the thrift industry.
IX. OCC and OTS--Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC and OTS have determined that this proposed rule will not result in expenditures by state, local, and tribal governments, or by the private sector, of more than $100 million or more in any one year. Therefore, the OCC and OTS have not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered. As discussed in the preamble, this proposal will reduce inconsistencies in the agencies' risk-based capital standards and, in certain circumstances, will allow banking organizations to maintain lower amounts of capital against certain rated recourse obligations and direct credit substitutes.
X. Plain Language Requirement
Section 722 of the Gramm-Leach-Bliley Act of 1999 requires the federal banking agencies to use "plain language" in all proposed and final rules published after January 1, 2000. We invite your comments on how to make this proposal easier to understand. For example:
Have we organized the material to suit your needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that isn't clear?
Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
What else could we do to make the rule easier to understand?
XI. FDIC Assessment of Impact of Federal Regulation On Families
The FDIC has determined that this proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. Law 105-277).
List of Subjects
12 CFR Part 3
Administrative practice and procedure, Capital, National banks, Reporting and recordkeeping requirements, Risk.
12 CFR Part 208
Accounting, Agriculture, Banks, banking, Confidential business information, Crime, Currency, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements, Securities.
12 CFR Part 225
Administrative practice and procedure, Banks, banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities.
12 CFR Part 325
Administrative practice and procedure, Bank deposit insurance, Banks, Banking, Capital adequacy, Reporting and recordkeeping requirements, Savings associations, State non-member banks.
12 CFR Part 567
Capital, Reporting and recordkeeping requirements, Savings associations.
3 International Convergence of Capital Measurement and Capital Standards (July 1988).
4 For purposes of this discussion, references to "securitization" also include structured finance transactions or programs that generally create stratified credit risk positions, which may or may not be in the form of a security, whose performance is dependent upon a pool of loans or other credit exposures.
5 As used in this proposal, the terms "credit enhancement" and "enhancement" refer to both recourse arrangements and direct credit substitutes.
6"Synthetic securitization" refers to the bundling of credit risk associated with on-balance sheet assets and off-balance sheet items for subsequent sale into the market.
7In this regard, the agencies note that one increasingly important component of the systems for controlling credit risk at larger banking organizations is the identification of the gradations in credit risk among their business loans and the assignment of internal credit risk ratings to loans that correspond to these gradations. The agencies believe that the use of such an internal rating process is appropriate--indeed, necessary--for sound risk management at large banking organizations. In particular, those banking organizations with significant involvement in securitization activities should have relatively elaborate and formal approaches for assessing and managing the associated credit risk.
8 Stress testing usually involves identifying possible events or changes in market behavior that could have unfavorable effects on an banking organization and assessing the organization's ability to withstand them. Stress testing should not only consider the probability of adverse events, but also potential "worst case" scenarios. Such an analysis should be done on a consolidated basis and consider, for example, the effect of higher than expected levels of delinquencies and defaults. The analysis should also consider the consequences of early amortization events that could raise concerns regarding a banking organization's capital adequacy and its liquidity and funding capabilities. Stress test analyses should also include contingency plans regarding the actions management might take given certain situations.
9Assets transferred with any amount of recourse in a transaction reported as a financing in accordance with generally accepted accounting principles (GAAP) remain on the balance sheet and are risk-weighted in the same manner as any other on-balance sheet asset. Assets transferred with recourse in a transaction that is reported as a sale under GAAP are removed from the balance sheet and are treated as off-balance sheet exposures for risk-based capital purposes.
10 Consistent with statutory requirements, the agencies' current rules also provide for special treatment of sales of small business loan obligations with recourse. See 12 CFR Part 3, appendix A, Section 3(c) (OCC); 12 CFR parts 208 and 225, appendix A, II.B.5 (FRB); 12 CFR part 325, appendix A, II.B.6 (FDIC); 12 CFR 567.6(E)(3) (OTS).
11Section 350 of the CDRI Act required the agencies to prescribe regulations providing that the risk-based capital requirement for assets transferred with recourse could not exceed a banking organization's maximum contractual exposure. The agencies may require a higher amount if necessary for safety and soundness reasons. See 12 U.S.C. 4808.
12 The OTS, which already defines the term "recourse" in its rules, would revise its definition so that it is consistent with the definition adopted by the other agencies. The OTS is also adding a definition of "financial guarantee-type letter of credit" to be consistent with the OCC and the Board.
13 "Nationally recognized statistical rating organization" means an entity recognized by the Division of Market Regulation of the Securities and Exchange Commission as a nationally recognized statistical rating organization for various purposes, including the capital rules for broker-dealers. See SEC Rule 15c3-1(c)(2)(vi)(E), (F) and (H), 17 CFR 240.15c3-1(c)(2)(vi)(E), (F), and (H).
14For a description of these approaches, see 62 FR 59944, 59952-59961(November 5, 1997).
15The OTS currently defines the term "recourse" more broadly than the proposal to include arrangements involving credit risk that a thrift assumes or accepts from third-party assets as well as risk that it retains in an asset transfer. Under the proposal, credit risk that a banking organization assumes from third-party assets falls under the definition of "direct credit substitute" rather than "recourse."
16 "Synthetic securitization" refers to the bundling of credit risk associated with on-balance sheet assets and off-balance sheet items for subsequent sale into the market. Credit derivatives, and in particular credit-linked notes, are used to structure a synthetic securitization. For more information on synthetic securitizations see, Joint OCC and Federal Reserve Board Issuance on Credit Derivatives, "Capital Interpretations--Synthetic Collateralized Loan Obligations," dated November 15, 1999.
17Current OTS risk-based capital guidelines exclude certain high-quality subordinated mortgage-related securities from treatment as recourse arrangements due to their credit quality.
18Servicer cash advances include disbursements made to cover foreclosure costs or other expenses arising from a loan in order to facilitate its timely collection (but not to protect investors from incurring these expenses).
19 The OTS does not have a market risk rule.
20 The Board is also proposing to add language to its risk-based capital standards that would permit the Board to adjust the treatment of a capital instrument that does not fit into the existing capital categories or that provides capital to a banking organization at levels that are not commensurate with the nominal capital treatment of the instrument. The other agencies already have this flexibility under their existing rules.
21 The example rating designations ("AAA," "BBB," etc.) are illustrative and do not indicate any preference for, or endorsement of, any particular rating agency designation system.
22 Similar to the current approach under which "stripped" mortgage-backed securities are not eligible for risk weighting at 50% on a "pass-through" basis, stripped mortgage-backed securities are ineligible for the 20% or 50% risk categories under the ratings based approach.
23 "Gross-up" treatment means that a position is combined with all more senior positions in the transaction. The result is then risk-weighted based on the nature of the underlying assets. For example, if a banking organization retains a first-loss position in a pool of mortgage loans that qualify for a 50% risk weight, the banking organization would include the full amount of the assets in the pool, risk-weighted at 50% in its risk-weighted assets for purposes of determining its risk-based capital ratio. The low level recourse rule provides that the dollar amount of risk-based capital required for assets transferred with recourse should not exceed the maximum dollar amount for which a banking organization is contractually liable. See, 12 CFR part 3, appendix A, Section 3(d) (OCC); 12 CFR 208 and 225, appendix A, III.D.1(g) (FRB); 12 CFR part 325, appendix A, II.D.1 (FDIC); 12 CFR 567.6(a)(2)(i)(C) (OTS).