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6223

Rules and Regulations

Federal Register
Vol. 74, No. 24
Friday, February 6, 2009

This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.

FEDERAL RESERVE SYSTEM
12 CFR Parts 208 and 225
[Regulations H and Y; Docket No. 1332]

Risk-Based Capital Guidelines;
Leverage Capital Guidelines

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AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Final rule.
SUMMARY: To reduce liquidity and other
strains being experienced by money
market mutual funds, the Federal
Reserve System adopted on September
19, 2008, the Asset-Backed Commercial
Paper Money Market Mutual Fund
Lending Facility (AMLF) that enables
depository institutions and bank
holding companies to borrow from the
Federal Reserve Bank of Boston on a
nonrecourse basis if they use the
proceeds of the loan to purchase certain
types of asset-backed commercial paper
(ABCP) from money market mutual
funds. To facilitate this Federal Reserve
lending program, the Board of
Governors of the Federal Reserve
System (Board) also adopted an
exemption from its leverage and riskbased capital rules for ABCP held by a
state member bank or bank holding
company as a result of its participation
in this program.
DATES: Effective January 30, 2009.
FOR FURTHER INFORMATION CONTACT:
Mark E. Van Der Weide, Assistant
General Counsel, (202) 452–2263, or
Andrea R. Tokheim, Counsel, (202) 452–
2300, Legal Division; Barbara J.
Bouchard, Associate Director, (202)
452–3072, or Juan C. Climent, Senior
Supervisory Financial Analyst, (202)
872–7526, Division of Banking
Supervision and Regulation. For the
hearing impaired only,
Telecommunication Device for the Deaf
(TDD), (202) 263–4869.
SUPPLEMENTARY INFORMATION:

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In light of the ongoing dislocations in
the financial markets, and the impact of
such dislocations on the functioning of
the markets for ABCP and on the
operations of money market mutual
funds, the Board adopted the AMLF on
September 19, 2008. Under the AMLF,
depository institutions and bank
holding companies (banking
organizations) are able to borrow from
the Federal Reserve Bank of Boston on
a nonrecourse basis on condition that
the organizations use the proceeds of
the Federal Reserve credit to purchase,
at amortized cost, certain highly rated
U.S. dollar-denominated ABCP from
money market mutual funds. The ABCP
purchased must be used to secure the
borrowing from the Reserve Bank. The
purpose of the AMLF is to assist money
market mutual funds to obtain liquidity
by enabling them to sell some of their
high-credit-quality secured assets at
amortized cost. The AMLF, which was
initially scheduled to expire on January
31, 2009, has been extended to April 30,
2009.1
Banking organizations that participate
in the AMLF must acquire and hold
ABCP on their balance sheet. These
ABCP holdings attract leverage and riskbased capital charges under the Board’s
regulatory capital rules for state member
banks and bank holding companies. To
facilitate the AMLF, and for the reasons
discussed below, on September 19,
2008, the Board adopted, on an interim
final basis, and requested public
comment on, an exemption from its
leverage and risk-based capital rules for
ABCP purchased by a state member
bank or bank holding company as a
result of its participation in the facility.2
Specifically, the interim final rule (i)
amended the Board’s risk-based capital
rules for state member banks and bank
holding companies to assign a zero
percent risk weight to ABCP purchased
by the banking organization as a result
of its participation in the facility; and
(ii) amended the Board’s leverage
capital rules for state member banks and
bank holding companies to permit
banking organizations to exclude from
average total consolidated assets—the
denominator of the leverage ratio—
ABCP purchased by the banking
1 Board of Governors of the Federal Reserve
System (2008), ‘‘Federal Reserve announces the
extension of three liquidity facilities through April
30, 2009,’’ press release, December 2.
2 73 FR 55706 (2008).

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organization as a result of its
participation in the facility.
After considering the comments, the
Board has adopted a final rule that is
largely identical to the interim final rule
but includes minor changes to reflect
the extended duration of the AMLF. The
interim final rule provided that the
exemptions applied only to ABCP
purchased between September 19, 2008,
and January 30, 2009 from an affiliated
SEC-registered open-end investment
company that holds itself out as a
money market mutual fund under SEC
Rule 2a–7 (17 CFR 270.2a–7). This
timeframe coincided with the dates of
the AMLF. In the final rule, the date
range for eligible ABCP purchases has
been eliminated, but the rule continues
to provide that the exemptions are
available only for ABCP that are
purchased in order to secure borrowing
from the AMLF. As a result, the
exemptions effectively will no longer be
available once the AMLF expires.
The Board has determined that the
current leverage and risk-based capital
requirements for ABCP acquired by a
banking organization pursuant to the
AMLF do not reflect the substantial
protections provided to the organization
by the Federal Reserve in connection
with the facility. Because of the nonrecourse nature of the Federal Reserve’s
credit extension to the banking
organization, the organization is not
exposed to the credit or market risk of
the ABCP purchased by the organization
and pledged to the Federal Reserve.
Therefore, the Board believes that it is
appropriate—and consistent with the
economic substance of the
transactions—not to impose regulatory
capital requirements on the ABCP
purchased by a banking organization in
connection with its service as an
intermediary in the AMLF.
Administrative Procedure Act
Pursuant to sections 553(d) of the
Administrative Procedure Act (5 U.S.C.
§ 553(d)), the Board finds that there is
good cause for making the rule effective
immediately on January 30, 2009. The
Board has adopted the rule in light of,
and to help address, the continuing
unusual and exigent circumstances in
the financial markets. The rule will
provide immediate relief to depository
institutions that elect to participate in
the AMLF.

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6224

Federal Register / Vol. 74, No. 24 / Friday, February 6, 2009 / Rules and Regulations

Regulatory Flexibility Act

Authority and Issuance

The Regulatory Flexibility Act
requires an agency that is issuing a final
rule to prepare and make available a
regulatory flexibility analysis that
describes the impact of the final rule on
small entities. 5 U.S.C. 603(a). The
Regulatory Flexibility Act provides that
an agency is not required to prepare and
publish a regulatory flexibility analysis
if the agency certifies that the final rule
will not have a significant economic
impact on a substantial number of small
entities. 5 U.S.C. 605(b).
Pursuant to section 605(b), the Board
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities.
The rule reduces regulatory burden on
large and small state member banks and
bank holding companies by granting an
exemption from the leverage and riskbased capital rules for state member
banks and bank holding companies that
purchase ABCP from money market
mutual funds pursuant to the Federal
Reserve’s ABCP lending program.

■

Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act (44 U.S.C. 3506; 5 CFR
1320 Appendix A.1), the Board has
reviewed the final rule under authority
delegated to the Board by the Office of
Management and Budget. The rule
contains no collections of information
pursuant to the Paperwork Reduction
Act.
Plain Language
Section 722 of the Gramm-LeachBliley Act requires the Board to use
‘‘plain language’’ in all proposed and
final rules. In light of this requirement,
the Board has sought to present the final
rule in a simple and straightforward
manner. The Board invited comment on
whether it could take additional steps to
make the rule easier to understand. The
Board received no comments on this
subject.
List of Subjects
12 CFR Part 208

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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.

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For the reasons stated in the preamble,
the Board of Governors of the Federal
Reserve System amends parts 208 and
225 of chapter II of title 12 of the Code
of Federal Regulations as follows:
PART 208—MEMBERSHIP OF STATE
BANKING INSTITUTIONS IN THE
FEDERAL RESERVE SYSTEM
(REGULATION H)
1. The authority citation for part 208
continues to read as follows:

■

Authority: 12 U.S.C. 24, 36, 92a, 93a,
248(a), 248(c), 321–338a, 371d, 461, 481–486,
601, 611, 1814, 1816, 1818, 1820(d)(9),
1823(j), 1828(o), 1831, 1831o, 1831p–1,
1831r–1, 1835a, 1882, 2901–2907, 3105,
3310, 3331–3351, and 3906–3909; 15 U.S.C.
78b, 78l(b), 78l(g), 78l(i), 78o–4(c)(5), 78q,
78q–1, and 78w, 6801, and 6805; 31 U.S.C.
5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106,
and 4128.

2. In appendix A to part 208, amend
section III.C.1. by revising the last
undesignated paragraph to read as
follows:

■

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

*
*
*
*
III. * * *
C. * * *
1. * * *
*
*
*
*
*
This category also includes ABCP (i)
purchased on or after September 19,
2008, by a bank from an SEC-registered
open-end investment company that
holds itself out as a money market
mutual fund under SEC Rule 2a–7 (17
CFR 270.2a–7) and (ii) pledged by the
bank to a Federal Reserve Bank to
secure financing from the ABCP lending
facility (AMLF) established by the Board
on September 19, 2008.
*
*
*
*
*
■ 3.In appendix B to part 208, amend
section II. by revising paragraph h. to
read as follows:
Appendix B to Part 208—Capital
Adequacy Guidelines for State Member
Banks: Tier 1 Leverage Measure
*

*
*
*
*
h. Notwithstanding anything in this
appendix to the contrary, a bank may
deduct from its average total
consolidated assets the amount of any
asset-backed commercial paper (i)
purchased by the bank on or after
September 19, 2008, from an SECregistered open-end investment
company that holds itself out as a
money market mutual fund under SEC
Rule 2a–7 (17 CFR 270.2a–7) and (ii)

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pledged by the bank to a Federal
Reserve Bank to secure financing from
the ABCP lending facility (AMLF)
established by the Board on September
19, 2008.
PART 225—BANK HOLDING
COMPANIES AND CHANGE IN BANK
CONTROL (REGULATION Y)
1. The authority citation for part 225
continues to read as follows:

■

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

2. In appendix A to part 225, amend
section III.C.1. by revising the last
undesignated paragraph to read as
follows:

■

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

*
*
*
*
III. * * *
C. * * *
1. * * *
*
*
*
*
*
This category also includes ABCP (i)
purchased by a bank holding company
on or after September 19, 2008, from an
SEC-registered open-end investment
company that holds itself out as a
money market mutual fund under SEC
Rule 2a–7 (17 CFR 270.2a–7) and (ii)
pledged by the bank holding company
to a Federal Reserve Bank to secure
financing from the ABCP lending
facility (AMLF) established by the Board
on September 19, 2008.
*
*
*
*
*
3. In appendix D to part 225, amend
section II. by revising paragraph d. to
read as follows:

■

Appendix D to Part 225—Capital
Adequacy Guidelines for Bank Holding
Companies: Tier 1 Leverage Measure
*

*
*
*
*
d. Notwithstanding anything in this
appendix to the contrary, a bank
holding company may deduct from its
average total consolidated assets the
amount of any asset-backed commercial
paper (i) purchased by the bank holding
company on or after September 19,
2008, from an SEC-registered open-end
investment company that holds itself
out as a money market mutual fund
under SEC Rule 2a–7 (17 CFR 270.2a–
7) and (ii) pledged by the bank holding
company to a Federal Reserve Bank to
secure financing from the ABCP lending
facility (AMLF) established by the Board
on September 19, 2008.

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Federal Register / Vol. 74, No. 24 / Friday, February 6, 2009 / Rules and Regulations
By order of the Board of Governors of the
Federal Reserve System, January 28, 2009.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. E9–2336 Filed 2–5–09; 8:45 am]
BILLING CODE 6210–01–P

FEDERAL RESERVE SYSTEM
12 CFR Part 223
[Regulation W; Docket No. R–1330]

Transactions Between Member Banks
and Their Affiliates: Exemption for
Certain Securities Financing
Transactions Between a Member Bank
and an Affiliate

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AGENCY: Board of Governors of the
Federal Reserve System (Board).
ACTION: Final rule.
SUMMARY: In light of the continuing
unusual and exigent circumstances in
the financial markets, the Board has
adopted a regulatory exemption for
member banks from certain provisions
of section 23A of the Federal Reserve
Act and the Board’s Regulation W. The
exemption increases the capacity of
member banks, subject to certain
conditions designed to help ensure the
safety and soundness of the banks, to
enter into securities financing
transactions with affiliates.
DATES: Effective January 30, 2009.
FOR FURTHER INFORMATION CONTACT:
Mark E. Van Der Weide, Assistant
General Counsel, (202) 452–2263 or
Andrea R. Tokheim, (202) 452–2300,
Legal Division, or Norah M. Barger,
Deputy Director, (202) 452–2402,
Division of Banking Supervision and
Regulation, Board of Governors of the
Federal Reserve System, 20th Street and
Constitution Avenue, NW., Washington,
DC 20551. For the deaf, hard of hearing,
and speech impaired only,
teletypewriter (TTY), (202) 263–4869.
SUPPLEMENTARY INFORMATION:
In light of the ongoing dislocations in
the financial markets, and the potential
impact of such dislocations on the
functioning of the U.S. tri-party
repurchase agreement market, the Board
adopted on September 14, 2008, on an
interim basis with request for public
comment, the following exemption from
section 23A of the Federal Reserve Act
(12 U.S.C. 371c) and the Board’s
Regulation W (12 CFR part 223). The
exemption is meant to facilitate the
ability of an affiliate of a member bank
(such as an SEC-registered brokerdealer) to obtain financing, if needed,
for securities or other assets that the
affiliate ordinarily would have financed

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through the U.S. tri-party repurchase
agreement market.
The exemption is subject to several
conditions designed to protect the safety
and soundness of the member bank.
First, the member bank may use the
exemption to finance only those asset
types that the affiliate financed in the
U.S. tri-party repurchase agreement
market during the week of September
8–12, 2008.
Second, the transactions must be
marked to market daily and subject to
daily margin maintenance requirements,
and the member bank must be at least
as over-collateralized in its securities
financing transactions with the affiliate
as the affiliate’s clearing bank was in its
U.S. tri-party repurchase agreement
transactions with the affiliate on
September 12, 2008. The Board expects
the member bank and its affiliate to use
standard industry documentation for the
exempt securities financing transactions
(which would, among other things,
qualify the transactions as securities
contracts or repurchase agreements for
purposes of U.S. bankruptcy law).
Third, to ensure that member banks
use the exemption in a manner
consistent with its purpose—that is, to
help provide liquidity to the U.S. triparty repurchase agreement market—the
aggregate risk profile of the exempt
securities financing transactions must
be no greater than the aggregate risk
profile of the affiliate’s U.S. tri-party
repurchase agreement transactions on
September 12, 2008. The exemption,
therefore, permits an affiliate to obtain
financing from its affiliated member
bank for securities positions that the
affiliate did not own or finance in the
U.S. tri-party repurchase agreement
market on September 12, 2008, but only
if the new positions in the aggregate do
not increase the overall risk profile of
the affiliate’s portfolio.
Fourth, the member bank’s top-tier
holding company must guarantee the
obligations of the affiliate under the
securities financing transactions (or
must provide other security to the bank
that is acceptable to the Board). Any
member bank that intends to use a form
of credit enhancement other than a
parent company guarantee must consult
in advance with Board staff. An
example of the type of other security
arrangement that may be acceptable to
the Board would be a pledge by the
affiliate or parent holding company to
the member bank of a sufficient amount
of additional liquid, high-quality
collateral.
Fifth, a member bank may use the
exemption only if the bank has not been
specifically informed by the Board, after
consultation with the bank’s appropriate

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6225

Federal banking agency, that the bank
may not use this exemption. If the Board
believes, after such consultation, that
the exempt securities financing
transactions pose an unacceptable level
of risk to the bank, the Board may
withdraw the exemption for the bank or
may impose supplemental conditions
on the bank’s use of the exemption.
After considering the comments, the
Board has adopted a final rule that is
identical to the interim final rule, except
that the expiration date has been
extended. Consistent with its purpose to
ameliorate potential temporary
dislocations in the U.S. tri-party
repurchase agreement market, the
interim final rule provided that the
exemption would expire on January 30,
2009, unless extended by the Board.
Because of ongoing dislocation in the
U.S. tri-party repurchase agreement
market, the Board has extended the
expiration date of this exemption to
October 30, 2009.
The Board notes that any securities
financing transactions between the
member bank and an affiliate are subject
to the market terms requirement of
section 23B of the Federal Reserve Act
(12 U.S.C. 371c–1). Section 23B requires
that financial transactions between a
bank and its affiliate be on terms and
under circumstances (including credit
standards) that are substantially the
same, or at least as favorable to the
bank, as those prevailing at the time for
comparable transactions with or
involving nonaffiliates. Among other
things, section 23B would require the
member bank to apply collateral
haircuts to its affiliated securities
financing transaction counterparty that
are at least as strict as the bank would
apply to comparable unaffiliated
securities financing transaction
counterparties.
Administrative Procedure Act
Pursuant to sections 553 (d) of the
Administrative Procedure Act (5 U.S.C.
553(d)), the Board finds that there is
good cause for making the rule effective
immediately on January 30, 2009. The
Board has adopted the rule in light of,
and to help address, the continuing
unusual and exigent circumstances in
the financial markets. The rule will
provide immediate relief to participants
in the U.S. tri-party repurchase
agreement market.
Regulatory Flexibility Act
The Regulatory Flexibility Act
requires an agency that is issuing a final
rule to prepare and make available a
regulatory flexibility analysis that
describes the impact of the final rule on
small entities. 5 U.S.C. 603(a). The

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