[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Rules and Regulations]
[Pages 67777-67787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28115]


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FEDERAL RESERVE SYSTEM

12 CFR Parts 201 and 204

[Regulations A and D; Docket Nos. R-1123 and R-1134]


Extensions of Credit by Federal Reserve Banks; Reserve 
Requirements of Depository Institutions

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Final rule; technical amendment.

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SUMMARY: The Board of Governors is publishing final amendments to

[[Page 67778]]

Regulation A that replace the existing adjustment and extended credit 
programs with programs called primary and secondary credit and also 
reorganize and streamline existing provisions of Regulation A. The 
final rule leaves the existing seasonal credit program essentially 
unchanged. The final rule is intended to improve the functioning of the 
discount window and does not indicate a change in the stance of 
monetary policy.
    The Board also is amending the penalty provision of Regulation D, 
which is calculated based on the discount rate, to conform the 
calculation of penalties for reserve deficiencies to the new discount 
rate framework.

DATES: This final rule will become effective on January 9, 2003.

FOR FURTHER INFORMATION CONTACT: Brian Madigan, Deputy Director (202/
452-3828) or William Nelson, Senior Economist (202/452-3579), Division 
of Monetary Affairs; or Stephanie Martin, Assistant General Counsel 
(202/452-3198) or Adrianne Threatt, Counsel (202/452-3554), Legal 
Division; for users of Telecommunication Devices for the Deaf (TDD) 
only, contact 202/263-4869.

SUPPLEMENTARY INFORMATION:

Background

Existing Regulation A and the Board's Proposed Rule

    Under existing Regulation A, three credit programs are available to 
depository institutions: (1) Adjustment credit, which is available for 
short periods of time, usually overnight, when a depository institution 
has exhausted other sources of funds; (2) extended credit, which is 
available for somewhat longer periods when assistance is not available 
from other sources; and (3) seasonal credit, which is available largely 
to small banks with a pronounced seasonal funding need. Over the past 
decade, the interest rate on adjustment credit has been 25 to 50 basis 
points below the federal funds rate, which is the rate that applies to 
uncollateralized overnight loans in the interbank market. The rates for 
extended and seasonal credit are set by formulas based on market 
interest rates and typically have been at or above the basic discount 
rate.
    The below-market rate for adjustment credit creates incentives for 
an institution to borrow at the discount window to exploit the spread 
between the discount rate and the higher market rate for short-term 
funds. The current regulation therefore requires that an institution 
first exhaust other available sources of funds and explain its need for 
adjustment credit. The regulation also prohibits the use of discount 
window credit to finance the sale of federal funds. Because of these 
restrictions, a Reserve Bank must evaluate the financial situation of 
each borrower to determine that both the reason for borrowing at the 
discount window and the depository institution's use of borrowed funds 
are appropriate.
    Reserve Bank administration of adjustment credit tends to create 
uncertainty among depository institutions about their access to 
discount window credit. In addition, institutions that have borrowed at 
the discount window after advertising their need for funds in the 
market have expressed concern that borrowing at the window signals 
weakness and is a source of stigma. Concerns such as these in some 
cases have deterred depository institutions from borrowing at the 
discount window during very tight money markets when doing so would 
have been appropriate. This in turn has hampered the ability of the 
discount window to buffer shocks to the money markets.
    To improve the operation of the discount window, the Board proposed 
to replace the existing adjustment and extended credit programs with 
primary and secondary credit programs (67 FR 36544, May 24, 2002). The 
Board proposed that primary credit be available to generally sound 
institutions on a very short-term basis, usually overnight, with little 
or no administrative burden on the borrower and that borrowers of 
primary credit not be required to exhaust other sources of funds before 
obtaining short-term primary credit. The Board also proposed that 
primary credit be available for periods of up to a few weeks to 
generally sound institutions that cannot reasonably obtain such funding 
in the market. The Board proposed no restrictions on the purposes for 
which the borrower could use primary credit. The proposal contemplated 
that Reserve Banks would establish a System-wide set of criteria, based 
on supervisory and other relevant information, which would be used to 
determine whether an institution was in generally sound financial 
condition and thus eligible for primary credit. The Board proposed that 
primary credit normally be available at a rate above the target federal 
funds rate of the Federal Open Market Committee (FOMC) and that the 
initial primary credit rate be 100 basis points above the target 
federal funds rate.
    Under the proposed rule, institutions not eligible for primary 
credit would be permitted to borrow secondary credit to meet temporary 
funding needs, consistent with the institution's timely return to a 
reliance on market funds. A Reserve Bank also could extend secondary 
credit to facilitate the resolution of serious financial difficulties 
of an institution. The Board proposed that the initial rate be set by 
formula 50 basis points above the primary credit rate. The Board's 
proposal contemplated that the secondary credit program would require 
more Reserve Bank administration than the primary credit program.
    The proposed regulation retained the existing seasonal credit 
program without substantive change, although the Board specifically 
requested comment regarding whether that program was still necessary 
and, if so, what the applicable interest rate should be.

Overview of Comments Received

    The Board received 61 comments on the proposed rule from depository 
institutions of various sizes, trade associations that represent 
depository institutions, individuals, and Reserve Banks. This section 
presents an overview of the main points contained in the comments 
received. The section-by-section analysis of the final rule, set forth 
below, discusses the comments in greater detail and responds to the 
major concerns expressed by commenters.
Support for the Proposal
    Of the 30 letters that addressed the primary and secondary credit 
programs, approximately 14 generally supported moving to an above-
market discount window framework. These commenters indicated that 
replacing the existing below-market discount window facility with an 
above-market framework would provide more easily accessible funding on 
more predictable and transparent terms with less burden on borrowers 
and would remove incentives to borrow in order to exploit interest rate 
spreads. Owing to the removal of the requirements that a borrower 
exhaust other funding sources and prove its need for credit and the 
addition of the requirement that primary credit borrowers be in 
generally sound financial condition, some supporters of the proposal 
thought that the stigma associated with discount borrowing would 
decrease. Commenters also indicated that an above-market framework 
would provide depository institutions with an incentive to manage their 
liquidity more prudently under normal market conditions in order to 
avoid paying the penalty rate but would make it easier for banks to 
obtain overnight funding during periods of very tight money markets. 
Supporters

[[Page 67779]]

also stated that an above-market lending facility would be more akin to 
the lending facilities of other central banks.
Questions About the Need for Proposed Changes
    Some commenters questioned the underlying reasons the Board gave 
for proposing an above-market framework. Several commenters questioned 
the Board's statement that some depository institutions were deterred 
from coming to the discount window because of perceptions that discount 
window borrowing indicated financial weakness. One commenter asserted 
that, because of limits on lending to undercapitalized institutions, 
borrowing at the window was more likely to indicate strength than 
weakness, while others asserted that market participants did not view 
borrowing as an important factor when assessing financial strength.\1\ 
Still another commenter argued that the current low volume of borrowing 
did not indicate reluctance to borrow, but rather indicated that 
depository institutions were using the window appropriately as a backup 
rather than primary source of liquidity.\2\ Other commenters questioned 
the need for an above-market rate for purposes of limiting volatility 
in the federal funds market because they thought that the existing 
controls and incentives adequately limited volatility.
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    \1\ One commenter argued that the manner in which discount 
window borrowing is reported makes it difficult to identify 
individual borrowers. Others thought that discount window activity 
was at best a secondary indicator of financial strength because 
market participants rely on other sources when determining an 
institution's soundness.
    \2\ The Board believes that a number of factors, including 
improved account management by depository institutions, contribute 
to the relatively low level of borrowing at recent spreads of the 
federal funds rate over the discount rate. However, the Board also 
believes that the current framework of below-market lending, with 
its attendant need to administer lending heavily, remains a 
potential deterrent to appropriate borrowing, especially during 
periods when the overall condition of the financial sector is weak.
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Concerns About the Proposal
    Sixteen commenters, eight of whom opposed the proposal, expressed 
various concerns about the proposal. Commenters' concerns focused 
mainly on the proposed 100-basis-point spread between the target 
federal funds and primary credit rates. Other commenters expressed 
concern that lending funds at an above-market rate inappropriately 
would introduce a profit motive into actions related to monetary 
policy, thereby creating a conflict of interest for the Federal Reserve 
System.\3\
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    \3\ Another commenter argued that if a depository institution 
were to deteriorate as a result of reselling funds obtained through 
the primary credit program, the public might blame the Federal 
Reserve.
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    Many commenters expressed concern that the proposal either would 
not address or would exacerbate the problems that the Board identified 
as reasons for changing to an above-market framework. Although some 
critics of the proposal thought that the new framework would prevent 
extreme spikes in the federal funds rate, many commenters thought that 
volatility, especially intraday volatility, would increase rather than 
decrease. Other commenters thought that depository institutions would 
be at least as reluctant as they are currently to seek discount window 
credit because stigma would remain or because the above-market rate 
would deter borrowing. Still other commenters asserted that the Board's 
proposal would not be less burdensome for borrowers. Suggested 
Alternatives to and Suggestions Regarding the Board's Proposal.
    Some commenters who expressed general concern about the proposed 
above-market structure suggested that the Board modify or consider 
alternatives to its proposal. One commenter suggested that the problems 
with the current discount window programs were not burden and stigma, 
but rather were uncertainty about the programs and inconsistent 
requirements and expectations throughout the System. This commenter 
suggested leaving the current discount window programs in place but 
clarifying the Reserve Banks' credit policies, expectations, and 
requirements and applying those criteria more consistently throughout 
the Federal Reserve System.\4\ Another commenter proposed that the 
Board try to cap the federal funds rate through late-day open market 
operations rather than change its credit programs. Other commenters 
thought that the Federal Reserve should make credit available 
continuously and at market rates.\5\ Comments Regarding Seasonal 
Credit.
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    \4\ The Board notes that the Federal Reserve System has taken 
steps over the past decade that have been intended to clarify 
requirements and decrease stigma.
    \5\ The Board notes that this approach would be inconsistent 
with operation of primary and secondary credit facilities as backup 
sources of liquidity and reserves for depository institutions.
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    Over half the comments the Board received were in response to the 
Board's solicitation for comment about the continued need for the 
seasonal credit program. Forty-five commenters addressed the seasonal 
credit program, with 39 in favor of retaining and six in favor of 
eliminating the program. These comments are discussed in detail below 
in the section on seasonal credit.

Summary of Final Rule

    For the reasons discussed in detail below in the section-by-section 
analysis, the Board's final amendments to Regulation A substantively 
are nearly identical to the rule the Board proposed in May 2002. Most 
notably, the final rule replaces the existing adjustment and extended 
credit programs with primary and secondary credit programs, and the 
Reserve Banks will offer these new types of credit at rates that exceed 
the FOMC's target federal funds rate. The Board has included in the 
final rule a section under which the primary credit rate could be 
lowered in a financial emergency in the absence of a quorum of the 
Board. The Board is retaining the seasonal credit program with only 
minor technical changes.

Section-by-Section Analysis

The Above-Market Lending Framework--Sec. Sec.  201.4 and 201.51.

The Above Market Framework Generally and Market Volatility
    A number of commenters argued that moving to an above-market 
discount window framework generally would increase volatility, 
especially in light of the proposed 100-basis-point initial spread of 
the primary credit rate over the target federal funds rate, and 
therefore would not accomplish one of the Board's stated goals.\6\
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    \6\ These commenters generally thought that an above-market 
structure would allow sellers routinely to increase the federal 
funds rate all the way up to the ceiling established by the discount 
rate, thereby increasing the cost of funds generally.
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    It is possible that certain measures of volatility of the federal 
funds rate--particularly those that give some weight to small 
deviations from the target, such as the intraday standard deviation of 
the federal funds rate--will increase under the above-market framework. 
However, the Board believes that an above-market framework will reduce 
the potential for more extreme, unintended movements in the funds rate. 
These extreme movements arguably are more problematic than smaller ones 
because they tend to occur in the context of, and can exacerbate, 
conditions of market stress. Most depository institutions will not have 
an incentive to borrow from the window until the federal funds rate 
rises to the primary credit rate, at which point institutions likely 
will view the window as an attractive alternative. The presence of the 
discount window as a funding option should ensure that the federal 
funds rate will not rise significantly above the primary credit

[[Page 67780]]

rate, so the primary credit rate effectively will serve as a cap on and 
limit potential volatility in the federal funds rate.
    Some commenters stated that an above-market discount window 
framework would place an upper limit on the federal funds rate but 
argued that the Board should not establish a ceiling on the federal 
funds rate without also establishing a floor, noting that net sellers 
of federal funds are disadvantaged by declines in the federal funds 
rate. The most effective means of establishing a floor would be for the 
Federal Reserve to pay interest on excess reserve account balances, 
because a depository institution would have no incentive to lend or 
sell reserves at a lower rate than the rate of interest those reserve 
balances could earn. However, the Federal Reserve does not have 
explicit statutory authority to pay interest on reserve balances at 
this time.
    Although it might be desirable to limit both upward and downward 
volatility, those limits need not be implemented simultaneously in 
order to produce beneficial results. The potential advantages of the 
proposed discount window changes are considerable even in the absence 
of a rate floor, and delaying implementation of the above-market 
framework would unnecessarily defer those advantages without any 
countervailing benefit. The Board therefore has determined that 
implementation of the above-market framework should proceed without 
delay.
Primary Credit
    Reserve Banks will extend primary credit at a rate above the target 
federal funds rate on a very short-term basis (typically overnight) to 
depository institutions that the Reserve Banks judge to be in generally 
sound financial condition. Reserve Banks will determine eligibility for 
primary credit according to a set of criteria that is uniform 
throughout the Federal Reserve System and based mainly on examination 
ratings and capitalization, although supplementary information, 
including market-based information when available, also could be used. 
An institution that is eligible to receive primary credit need not 
exhaust other sources of funds before coming to the discount window, 
nor will it be prohibited from using primary credit to finance sales of 
federal funds. However, in view of the above-market price of primary 
credit, the Board expects that a depository institution will continue 
to use the discount window as a backup source of liquidity, which is 
the intended purpose of a central bank lending facility, rather than as 
a routine one. Reserve Banks will extend primary credit on an overnight 
basis with minimal administrative requirements, unless an aspect of the 
request for funds suggests that the credit extension would not meet the 
conditions of primary credit. Reserve Banks also may extend primary 
credit to eligible institutions for periods of up to several weeks if 
such funding is not available from other sources. However, longer-term 
extensions of primary credit will be subject to greater administration 
than are overnight loans. The text of Sec.  201.4(a) is essentially the 
same as that of the Board's proposal, although the final rule includes 
language highlighting the backup nature of the primary credit facility.

1. Interest Rates for Primary Credit

    Several commenters supported the Board's proposal that the initial 
primary credit rate be 100 basis points above the target federal funds 
rate. These commenters thought that a 100-basis-point spread generally 
was appropriate and would encourage most financial institutions first 
to seek credit elsewhere. One commenter thought the proposed spread was 
acceptable because the Federal Reserve does a good job of keeping the 
federal funds rate near the target.
    The Board received numerous comments, however, that expressed 
specific concern about the proposed initial primary credit rate. Many 
commenters, even those that generally supported the proposal, argued 
that the 100-basis-point spread the Board proposed was too wide and 
would undermine the Board's articulated goals for the primary credit 
program. These commenters thought that a discount rate of the target 
federal rate plus 100 basis points was too high because it was overly 
punitive, would deter institutions from borrowing at the discount 
window, and would allow sellers of federal funds to bid the federal 
funds rate up during periods of limited trading, low reserve volume, or 
late-day trading. Other commenters thought that a 100-basis-point 
spread between the target federal funds and discount rates would thwart 
the Board's efforts to remove the stigma associated with discount 
window borrowing and to encourage depository institutions and industry 
analysts to view the window as a normal liquidity source for sound 
institutions.
    Several commenters liked the idea of setting the primary credit 
rate at rate above the target federal funds rate but suggested that a 
spread of as few as 25 to as many as 50 basis points would be 
preferable to the 100-basis-point initial spread the Board proposed.\7\ 
Other commenters suggested alternative mechanisms for setting the rate, 
such as setting the rate at a certain percentage, rather than a certain 
number of basis points, above the target federal funds rate.\8\
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    \7\ Although most commenters who suggested a particular rate did 
not explain their rationale, one commenter argued that a 50-basis-
point spread would be appropriate because the commenter asserted 
that approximately half the large spikes in the federal funds rate 
were at about that level. Another commenter indicated that a 50- to 
60-basis-point spread would be appropriate because that would ensure 
that the central bank rate was slightly higher than the market rate 
but would keep the market rate from becoming excessive.
    \8\ One of these commenters suggested that the amount of the 
spread should depend on the level of the target federal funds rate, 
such that the lower the federal funds rate, the lower the spread and 
vice versa. Another suggested tying the primary credit rate to the 
collateralized repo rate rather than the federal funds rate.
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    The Board notes that an appreciable spread between the primary 
credit and target federal funds rate is necessary for the success of 
the above-market discount window programs. Given the large number of 
financial institutions in the United States and the tremendous 
variation in their sizes and other characteristics, the availability 
and price of market funding sources available to U.S. financial 
institutions also vary widely. If the primary credit rate were not at 
least as high as the highest rate on sources of comparable funding in 
the market, then some depository institutions frequently would find the 
primary credit program, rather than the open market, to be the most 
attractive source of funds. If routine use of the window occurred, the 
Federal Reserve still would need to administer the discount window 
heavily to deter institutions from making undue use of primary credit.
    Although it is difficult to determine the appropriate rate at which 
to extend primary credit to ensure that it remains a backup funding 
source, empirical evidence from several sources suggests that 100 
points above the target federal funds rate is an appropriate initial 
rate. These data cast doubt on whether a lesser spread would accomplish 
this goal of ensuring that the discount window remains a backup source 
of liquidity.
    Experience with the Special Liquidity Facility (SLF) that the 
Federal Reserve System established to address unusual liquidity strains 
that arose during the months surrounding the date change on January 1, 
2000, is instructive. The SLF was similar to the primary credit program 
in many ways because

[[Page 67781]]

eligibility was limited to financially sound institutions, 
administration of the facility intentionally was quite limited, and 
funding was available at a fixed spread of 150 basis points above the 
federal funds rate. Despite the penalty rate, there were 42 instances 
in which institutions borrowed from the SLF for a period of two to ten 
consecutive days and 14 instances in which institutions borrowed for 
periods of more than ten consecutive days. This suggests that the SLF 
was an attractive source of longer-term, rather than overnight, funding 
for some institutions despite the 150-basis-point spread above market 
rates, which in turn suggests that those financially sound institutions 
might not have had access to cheaper funding in the open market.
    In addition, Federal Reserve staff conversations with 
representatives of correspondent banks and other depository 
institutions found that the overnight funding options for banks without 
access to the national money markets were priced from \3/16\ to 1 
percentage point over the federal funds rate, with the largest spread 
being charged by an institution that preferred that its customers first 
exhaust other sources of short-term funding.
    Moreover, a spread on the order of 100 basis points has been used 
by some, but not all, foreign central banks on their Lombard discount 
window facilities. Perhaps most notably, the European Central Bank 
generally has employed a spread of 100 basis points. Conversations with 
staff of some of these central banks indicate that the experience with 
spreads of this size generally has been positive and has been 
consistent with achieving those central banks' goals.
    In view of the foregoing evidence, the Board believes that an 
initial spread of 100 basis points is appropriate and anticipates that 
a primary credit rate consistent with such a spread will be established 
as of January 9, 2003. The Board notes, however, that this is only the 
initial rate. The Reserve Banks are required to establish the primary 
credit rate, subject to the review and determination of the Board, at 
least every two weeks or more often if the Board deems necessary. The 
System therefore can set a primary credit rate at a lesser, or greater, 
spread above the federal funds rate as needed in light of actual 
experience with the primary credit program.\9\
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    \9\ One commenter expressed concern that the Reserve Banks would 
establish and the Board determine the spread between the federal 
funds and primary credit rates, rather than setting the actual rate. 
The Board notes that the primary credit rate will not be determined 
by establishing a fixed spread above the federal funds rate or by 
using any other formula. Rather, the Reserve Banks will establish 
the actual primary credit rate, subject to the review and 
determination of the Board.
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    Because a change in the stance of monetary policy between now and 
the recommended initiation of the new programs on January 9, 2003, 
cannot be ruled out, it is uncertain at this point what level of the 
primary credit rate will correspond with a spread of 100 basis points 
on that date. Section 201.51(a), which describes the primary credit 
rate, therefore at this time simply will state that the primary credit 
rate is a rate above the target federal funds rate of the FOMC. When 
the Reserve Banks establish and the Board determines the rate to be in 
effect on January 9, 2003, the Board will amend Sec.  201.51(a) to 
indicate the initial primary credit rate for each Reserve Bank. The 
Board's amendment will be effective on January 9, 2003.

2. Eligibility Criteria

    The Board proposed that eligibility for primary credit be 
determined mainly by a depository institution's supervisory ratings and 
capitalization, although supplementary information, when available, 
also could be used. Under the Board's proposed rule, institutions that 
were rated CAMELS 1 or 2 or SOSA 1 and at least adequately capitalized 
almost certainly would be eligible for primary credit, while 
institutions rated CAMELS 4 or 5 almost certainly would not be 
eligible. Institutions rated CAMELS 3 or SOSA 2 that are at least 
adequately capitalized might be eligible, depending on supplementary 
information.\10\ The Board noted that this recommendation aligned very 
closely with the categorization of institutions for purposes of 
determining access to daylight credit.
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    \10\ CAMELS (Capital, Assets, Management, Earnings, Liquidity, 
and Sensitivity to market risk) ratings, applicable to domestically 
chartered institutions, are set on a scale of 1 through 5, with 5 
representing the highest degree of supervisory concern. SOSA 
(Strength of Support Assessment) ratings, applicable to foreign 
banking organizations, are set on a scale of 1 through 3, with 3 
indicating the highest degree of supervisory concern.
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    Several commenters specifically addressed the eligibility criteria 
for primary credit. Most of these commenters thought that the proposed 
criteria generally were appropriate, although some suggested changes. 
Several commenters argued that the criteria should rely more heavily on 
examination ratings and minimize reliance on other types of information 
in determining eligibility for primary credit. One commenter thought 
that the guidelines would be more clear, concise, and uniform if the 
Federal Reserve only took supervisory ratings into account and did not 
allow supplementary information if a depository institutions were rated 
CAMELS 1 or 2.\11\ Another commenter suggested that institutions that 
are rated CAMELS 5 or that are critically undercapitalized either 
should be precluded from obtaining credit or should be charged a much 
higher penalty rate than the Board proposed. In contrast, other 
commenters expressed concern that the proposed eligibility criteria 
relied too heavily on supervisory data. These commenters expressed 
concern that reliance on an institution's soundness was not appropriate 
in a system of secured lending and suggested that the Federal Reserve 
instead should base its lending programs and credit decisions on the 
type of collateral an institution offers.
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    \11\ This commenter argued that the other information the Board 
proposed to take into account was irrelevant to a Reserve Bank's 
risk regarding secured overnight loans and that considering such 
information would lead to uncertainty about borrowing privileges.
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    The Board believes that, in order to ensure uniformity of credit 
eligibility throughout the Federal Reserve System, the criteria must 
rely heavily on objective supervisory data, which reflect 
determinations made by an institution's primary regulator after an 
extensive review process. However, the Board also recognizes that an 
institution could experience significant changes in its financial 
strength between examinations, in which case the institution's 
supervisory ratings might not reflect its current soundness and 
creditworthiness. To protect the Reserve Banks from the risks and to 
avoid the allocative distortions that could be involved in lending to 
such an institution, the Board believes that the eligibility criteria 
must allow for the use of some amount of supplementary information, 
including market-based information when available, to confirm that an 
institution's most recent supervisory data accurately reflect the 
institution's current condition.
    Under the final rule, the Board anticipates that the Reserve Banks 
will initially adopt criteria that are substantially similar to those 
articulated in the Board's proposal with some additional elements that 
will make the eligibility criteria identical to those for daylight 
credit. The classification scheme used by Reserve Banks for determining 
access to daylight credit is well developed and provides a good measure 
of the general soundness of depository institutions. Reserve Banks and 
depository institutions already have extensive experience with these 
criteria,

[[Page 67782]]

and using them to determine eligibility for both the daylight credit 
and primary credit programs generally should be straightforward for the 
Reserve Banks and should be more transparent for borrowers. Using a 
single set of criteria for both programs also should simplify 
explanations of Reserve Bank credit programs to depository institutions 
and the public.
    Under the criteria that would be applied at the outset of the 
program, institutions' eligibility would be based on CAMELS (or SOSA 
and ROCA) ratings, capitalization, and, at the Reserve Bank's 
discretion, supplementary information.\12\ More specifically, 
institutions that are at least adequately capitalized and rated CAMELS 
1 or 2 (or SOSA 1 and ROCA 1, 2, or 3) would almost certainly be 
eligible for primary credit. Institutions that are at least adequately 
capitalized and rated CAMELS 3 (or SOSA 2 and ROCA 1, 2, or 3) 
generally would be eligible. Institutions that are at least adequately 
capitalized and rated CAMELS 4 (or SOSA 1 or 2 and ROCA 4 or 5) would 
be eligible only if an ongoing examination indicated a substantial 
improvement in condition. Institutions that are not at least adequately 
capitalized, or that are rated CAMELS 5 (or SOSA 3 regardless of the 
ROCA rating), would not be eligible for daylight or primary credit.
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    \12\ ROCA (Risk management, Operation controls, Compliance, and 
Asset quality) ratings apply to the U.S. operations of a foreign 
banking organization. They are set on a scale of 1 to 5; as with 
CAMELS ratings, higher numbers indicate increased supervisory 
concern.
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    In summary, eligibility for primary credit will be restricted to 
institutions that are in generally sound financial condition. The 
Reserve Banks will be responsible for determining the general soundness 
of the institutions in their districts. At the outset of the program, 
the Reserve Banks will use the criteria that are already used for 
determining eligibility for daylight credit.

3. Reduction of Burden and Stigma

    Some commenters disagreed that the proposed revisions would reduce 
the stigma of borrowing at the discount window and in particular noted 
that analysts and counterparties might infer that the bank could not 
obtain funds at market rates and therefore might be in financial 
difficulty if there were evidence that the bank were paying a premium 
for funds. \13\
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    \13\ Several commenters thought that stigma would remain until 
senior bank management, equity analysts, investors, rating agencies, 
and other market participants consider the discount window to be a 
``normal'' source of liquidity. Some of these commenters suggested 
that only an intensive education campaign by the Federal Reserve 
targeted at those whose opinions influence perception of the 
discount window would achieve this result. Other commenters thought 
that financially sound institutions would not borrow at the window 
because the market would not be able to tell whether they obtained 
primary or secondary credit.
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    The Board believes that the Federal Reserve can reasonably expect 
to achieve, over time, some reduction in stigma as a result of the 
primary credit program. Only generally sound institutions will be 
eligible to borrow primary credit, and the Board expects that most 
institutions will be eligible for primary credit. Market participants 
would have no reasonable basis for inferring that an institution 
believed to have borrowed primary credit was unsound.\14\ Also, with 
credit no longer offered at a subsidy rate, the Federal Reserve will no 
longer require a borrowing institution first to exhaust other funding 
sources. As a result, borrowers will not have to make their funding 
needs known to the market, which should eliminate a key source of 
stigma cited by depository institutions. Depository institutions and 
persons attempting to assess the strength of those institutions also 
should have no concerns that financial regulators will view occasional 
use of primary credit as a potential indication of difficulties. In 
addition, the borrowings of those institutions that are believed to be 
lending the proceeds of discount window credit into the federal funds 
market clearly will indicate nothing adverse about their financial 
condition. Finally, reflecting the incentives created by an above-
market framework, a significant proportion of primary credit borrowing 
is likely to occur when the overall money market has tightened 
significantly. Because occasions of tightening markets are well known 
to all money market participants and analysts, it will be easy for them 
to recognize that borrowing at such times reflects a general market 
situation rather than conditions particular to a single institution.
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    \14\ Although the Federal Reserve System does not publish 
information on individual banks' use of the discount window, it is 
required by law to publish a weekly balance sheet for each Reserve 
Bank. The Federal Reserve also publishes weekly data on the 
aggregate amount the Federal Reserve System has lent under each 
discount window program.
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Secondary Credit
    The Reserve Banks will offer secondary credit to institutions that 
do not qualify for primary credit. As with primary credit, secondary 
credit will be available as a backup source of liquidity on a very 
short-term basis, provided that the loan is consistent with a timely 
return to a reliance on market sources of funds. Longer-term secondary 
credit would be available if necessary for the orderly resolution of a 
troubled institution, although any such loan would have to comply with 
the limitations of Sec.  201.5 regarding lending to undercapitalized 
and critically undercapitalized institutions. Unlike the primary credit 
program, secondary credit will not be a minimal administration facility 
because the Reserve Banks will need to obtain sufficient information 
about a borrower's financial situation to ensure that an extension of 
credit complies with the conditions of the program. The description of 
secondary credit at Sec.  201.4(b) closely tracks the language of the 
Board's proposed rule but states that short-term secondary credit is a 
backup funding source.
    The rate for secondary credit will be set by formula and will be 
above the primary credit rate. Initially, the spread between the 
primary and secondary credit rates will be 50 basis points.\15\ Less 
sound borrowers are riskier and might have an incentive to use discount 
window borrowings to expand their balance sheets in a manner that 
likely would distort resource allocation, and the higher rate on 
secondary credit is designed to reduce this incentive. Even with the 
higher rate, some institutions might tend to rely routinely on 
secondary credit, so administration of secondary credit remains 
necessary. If experience eventually suggests that a 50-basis-point 
spread above the primary credit rate is either too high or too low to 
achieve the objectives of the secondary credit program, the Federal 
Reserve could adopt a different formula.
---------------------------------------------------------------------------

    \15\ Although the Board received few comments specifically about 
the secondary credit program, those commenters that did reference 
the program generally thought that the proposed rate of 50 basis 
points above the primary credit rate was appropriate. However, one 
commenter suggested that a higher secondary credit rate should not 
reflect a risk premium, because all secondary credit would be 
collateralized fully. This commenter suggested that the higher rate 
was justified only by its ``incentive effect.'' Presumably this 
commenter was referring to the incentive a higher rate provides to 
less-sound institutions not to use discount window funding to expand 
their balance sheets inappropriately.
---------------------------------------------------------------------------

Seasonal Credit
    The Board's proposed rule left the seasonal credit intact with two 
technical revisions. The Board proposed removing the requirement that a 
potential borrower first demonstrate that it has exhausted special 
industry lenders as a funding source, because in practice the Reserve 
Banks have not used this criterion for some time. In addition, the 
Board proposed eliminating the requirement that the seasonal credit 
rate

[[Page 67783]]

be at or above the basic discount rate, because that requirement would 
not be consistent with the pricing of primary credit. The Board 
specifically solicited comment on whether the seasonal credit program 
is still needed and, if so, whether the current formula for determining 
the rate remains appropriate. The majority of the comments that the 
Board received responded to this request.
    Six commenters favored eliminating the seasonal credit program, 
arguing that small banks with seasonal needs had adequate access to 
other sources of liquidity and that the seasonal credit program was 
unnecessary. These commenters thought that the proposed primary and 
secondary credit programs could meet the needs of small banks. One 
commenter indicated that, if the Board kept the seasonal credit 
program, it should be available only to banks with less than $100 
million in assets.
    The Board received 39 comments from depository institutions, trade 
associations that represent small banks, and a Federal Reserve Bank 
urging the Board to retain the seasonal credit program, and most of 
these commenters also recommended retaining the existing rate 
formula.\16\ The depository institutions argued that they continue to 
experience seasonal demand for which they have relatively few 
alternative funding sources. Some commenters indicated that they have 
no or very limited access to short-term capital markets and national 
money markets or that they can obtain credit through these channels 
only on unfavorable terms. Some small banks stated that they did not 
have access to the Federal Home Loan Banks (FHLBs), and some commenters 
with FHLB access stated that FHLB loans are for longer terms than 
needed to meet seasonal demand. Although many small banks indicated 
that their deposits generally have increased because of the recent 
decline in the equity markets, they expected that the availability of 
deposit funding would decrease as other investment options became more 
attractive. Some depository institutions also stated that obtaining 
liquidity by competing for additional deposits either was too expensive 
or was impossible because of a lack of core deposits in the community.
---------------------------------------------------------------------------

    \16\ Commenters offered various suggestions regarding the 
seasonal credit program. Some thought that the seasonal credit rate 
should be even lower than the existing rate formula provides, and 
one asked that the Reserve Banks offer borrowers a choice of fixed 
or variable rates. Another commenter opined that the Reserve Banks 
should accept a broader range of assets as collateral, consider a 
``blanket pledging agreement'' such as that used by the FHLBs, and 
stop demanding to take physical possession of the collateral. (The 
Board notes that in fact only a small fraction of collateral is held 
physically by the Reserve Banks. Most collateral is held by the 
pledging institution or pledged electronically.) One commenter 
suggested that Reserve Banks should allow depository institutions to 
borrow up to the entire amount of the assets they pledge as 
collateral (in other words, with no ``haircut''). Some commenters 
indicated that the Federal Reserve should not require banks to 
demonstrate that their seasonal needs were for four consecutive 
weeks and should not vary an institution's seasonal credit line from 
month to month. Other commenters suggested that the Federal Reserve 
simplify both the eligibility criteria and the information 
requirements in connection with seasonal credit and requested that 
the Reserve Banks do more to promote awareness of the seasonal 
credit program.
---------------------------------------------------------------------------

    Several commenters indicated that eliminating the seasonal credit 
program would be harmful in other ways. Many institutions expressed 
concern that, without that program, the FHLBs would become their only 
viable alternative liquidity source and that they would be overly 
exposed to the FHLBs. Other depository institutions argued that if they 
could not obtain funding on terms comparable with those of the seasonal 
credit program, they in turn would not be able to compete effectively 
with other lenders, including the Farm Credit System, for agricultural 
loans.
    Section 201.4(c) of the final rule leaves the seasonal credit 
unchanged, except for technical revisions contained in the Board's 
proposal.
Lowering the Primary Credit Rate in a Financial Emergency
    In a financial emergency, lowering the discount rate would help to 
prevent an undue tightening of money markets, even if the Federal 
Reserve's ability to provide reserves through open market operations 
were constrained by the timing or effects of the conditions giving rise 
to the financial emergency. Especially in light of the events of 
September 11, 2001, when the System needed to make monetary policy and 
lending decisions quickly, the Board believes that it is desirable to 
ensure that the primary credit rate is lowered expeditiously in 
response to a financial emergency.
    Section 201.51(d)(2) of the Board's rule defines a financial 
emergency as a significant disruption to the U.S. money markets 
resulting from an act of war, military or terrorist attack, natural 
disaster, or other catastrophic event. Ideally, a quorum of the Board 
would be present to review and determine the primary credit rate at the 
time a financial emergency occurred. However, to ensure that the 
Board's determination to lower the rate in response to a financial 
emergency could take effect even in the absence of a quorum, Sec.  
201.51(d) of the Board's final rule provides that the primary credit 
rate is reduced to the FOMC's target federal funds rate if in a 
financial emergency a Reserve Bank has requested that the primary 
credit rate be established at the target federal funds rate and the 
Chairman of the Board (or, in the absence of the Chairman, his 
designee) certifies at the time of the financial emergency that a 
quorum of the Board is not available. If the primary credit rate were 
lowered as a result of this provision, the primary credit rate then 
would float with the target federal funds rate, which the FOMC would 
continue to set. This provision of Regulation A implements the Board's 
decision that lowering the primary credit rate to the target federal 
funds rate in a financial emergency is the appropriate course of 
action. The Federal Reserve Banks are establishing analogous internal 
procedures to address the possibility that their boards of directors or 
other duly authorized officials might be unavailable or otherwise 
unable to communicate a rate request to the Board in a timely manner 
during a financial emergency.

Reorganization of and Changes to Other Provisions of Regulation A

Section 201.1 Authority, Purpose and Scope
    The Board's final rule amends this section to include as sources of 
authority sections 11(i)-11(j) and 14(d) of the Federal Reserve Act, 
which respectively provide the Board with rulemaking authority and 
general supervisory authority over the Reserve Banks and authorize the 
Reserve Banks, subject to the review and determination of the Board, to 
establish discount rates. This section also gathers all existing 
provisions concerning the scope of Regulation A into one section by 
incorporating language from existing Sec.  201.7(a) regarding the 
circumstances under which U.S. branches and agencies of foreign banks 
are subject to the regulation.
Section 201.2 Definitions
    This section remains unchanged except for the deletion of five 
definitions. The definition of ``eligible institution'' (existing Sec.  
201.2(j)) is unnecessary because it related only to the SLF that was 
established for use during the months surrounding the January 1, 2000, 
date change. The definition of ``targeted federal funds rate'' 
(existing Sec.  201.2(k)) also originally was used only in connection 
with the SLF. Although the new emergency rate procedure provision also 
refers to the target federal funds rate, that provision

[[Page 67784]]

explains precisely what the term means. The Board therefore believes 
that there is no need to define the term ``targeted federal funds 
rate'' in the definition section.
    The Board also is deleting the terms ``liquidation loss,'' 
``increased loss,'' and ``excess loss,'' (existing Sec.  201.2(d)-(f), 
respectively). Liquidation loss and increased loss are used to derive 
the term excess loss, which is the amount the Board would owe the 
Federal Deposit Insurance Corporation (FDIC) under section 10B(b) of 
the Federal Reserve Act if outstanding Reserve Bank advances to a 
critically undercapitalized depository institution increased the FDIC's 
cost of liquidating that institution. Since the enactment of section 
10B(b) in 1991, section 10B(b)'s payment provision has not been used. 
The Board continues to believe that the three definitions describe 
accurately and in detail the calculations required by section 10B(b) 
and, should it become necessary in the future, the Board would 
calculate the amount that it owed to the FDIC in accordance with the 
methods described in these three definitions. However, because the 
definitions only describe what the statute already requires, the Board 
believes that the regulation would be less cumbersome but no less 
accurate if Sec.  201.5 of the final rule (regarding lending to 
undercapitalized and critically undercapitalized institutions) simply 
cross-referenced section 10B(b) of the Federal Reserve Act.
    One commenter suggested that the Board amend its definition of 
``depository institution'' to include bankers'' banks, which 
specifically are excluded from the definition under existing Regulation 
A. The Board previously has determined that the discount window is an 
appropriate source of liquidity for depository institutions that are 
subject to reserve requirements, and the definition of the term 
``depository institution'' in Regulation A therefore is based on the 
provisions in section 19 of the Federal Reserve Act and in the Board's 
Regulation D regarding those institutions that must maintain reserves. 
Those provisions specifically exempt bankers' banks from maintaining 
reserves, and because bankers' banks generally avail themselves of that 
exemption the Board continues to believe that bankers' banks also 
generally should not have access to the discount window. The Board 
therefore is not changing its definition of ``depository institution'' 
for purposes of Regulation A. However, the Board notes that bankers' 
banks are free to choose to be subject to the reserve requirements of 
section 19 of the Federal Reserve Act and Regulation D. The Board 
previously has allowed Reserve Banks to grant discount window access to 
a bankers' bank that voluntarily maintain reserves, and the Board 
expects that practice to continue under this final rule.
Section 201.3 General Requirements Governing Extensions of Credit
    The Board is adopting Sec.  201.3 as it appeared in the proposed 
rule. This section prescribes the Board's general rules governing a 
Federal Reserve Bank's extension of credit and combines in one place 
all the existing provisions of Regulation A that relate to the Reserve 
Bank's authority to extend credit, how credit is extended, and the 
requirements that apply to extensions of credit. This section states 
that credit to depository institutions generally will take the form of 
an advance but preserves a Reserve Bank's discretion to lend through 
discounting eligible paper if the Reserve Bank determines that a 
discount would be more appropriate for a particular depository 
institution. Section 201.3 cross-references the Reserve Banks' 
authority under section 13A of the Federal Reserve Act to lend to an 
institution that is part of the farm credit system, and accordingly the 
Board is deleting existing Sec.  201.8 that deals with that topic.
    Section 201.3 preserves existing text of Regulation A stating that 
a Reserve Bank has no obligation to make, increase, renew, or extend 
any advance or discount to a depository institution, and that any 
extension of credit the Reserve Bank chooses to make must be secured to 
the satisfaction of the Reserve Bank. The collateral policies of the 
Reserve Banks, as described in the Reserve Banks' Operating Circular 
No. 8, will remain unchanged. Section 201.3 contains existing text from 
Sec.  201.4(d) providing that a Reserve Bank should ascertain whether 
an institution is undercapitalized or critically undercapitalized 
before extending credit to that institution and includes new text 
stating that if a Reserve Bank extends credit to such an institution 
then the Reserve Bank must follow special lending procedures.
    Regarding the rules that apply to a borrower's use of central bank 
credit, Sec.  201.3(d) contains new language that explicitly permits an 
institution that receives primary credit to use that credit to fund 
sales of federal funds without Reserve Bank permission. Recipients of 
secondary or seasonal credit would continue to need Reserve Bank 
permission to use Reserve Bank credit to fund sales of federal funds. 
The Board is deleting existing Sec.  201.6(a), which provides that a 
depository institution may not use Federal Reserve credit as a 
substitute for capital, because the Board believes that other 
provisions of the statutes and regulations that it administers 
adequately address this issue. Section 201.5 Limitations on 
Availability and Assessments.
    This section is unchanged from the proposed rule and describes the 
limitations on advances to an undercapitalized or critically 
undercapitalized depository institution set forth in section 10B(b) of 
the Federal Reserve Act and also applies those limitations to discounts 
for such institutions. In addition, Sec.  201.5 discusses section 
10B(b)'s requirement that the Board pay a specified amount to the FDIC 
if a Reserve Bank advance to a critically undercapitalized depository 
institution increases the loss the FDIC incurs when liquidating that 
institution. The existing regulation explains in detail through the 
definitions of ``liquidation loss,'' ``increased loss,'' and ``excess 
loss'' how the Board would calculate that amount. As discussed above, 
the proposed rule would delete these three definitions and simply 
provide that the Board will assess the Federal Reserve Banks for any 
amount the Board pays to the FDIC in accordance with section 10B(b) of 
the Federal Reserve Act.

Technical Amendment to Regulation D

    In connection with its amendments to Regulation A, the Board is 
adopting a conforming amendment to Sec.  204.7 of Regulation D. This 
section currently provides that the penalty charge for reserve 
deficiencies shall be 2 percentage points per year above the lowest 
rate (generally the adjustment credit rate) in effect for borrowings 
from the Federal Reserve Bank. In the recent past, the adjustment 
credit rate has consistently been set 50 basis points below the target 
federal funds rate, and the reserve deficiency charge therefore has 
been 150 basis points above the target federal funds rate.
    The amendment to Sec.  204.7 will base the charges for reserve 
deficiencies on the new primary credit rate in Regulation A and will 
authorize the Reserve Banks to assess charges for reserve deficiencies 
at a rate of 1 percentage point above the average primary credit rate. 
Under the revised formula, when the primary credit rate is 100 basis 
points above the target federal funds rate the reserve deficiency 
charge will be 200 basis points above the target federal funds rate. 
The conforming amendment will maintain approximate uniformity between 
the current and new levels of the deficiency charge.

[[Page 67785]]

    The Board does not believe the slight difference between the 
current and new deficiency charge formulas is significant given the 
infrequency of reserve deficiency charges, the ability of the Reserve 
Banks to waive the charges under certain circumstances, and the future 
potential for variations in the spread between the target federal funds 
rate and the primary credit rate.

Administrative Procedure Act

    The provisions of 5 U.S.C. 553(b), relating to notice and public 
participation, were not followed in connection with the adoption of the 
technical amendment to Regulation D because this change merely adjusts 
the penalty charged for reserve deficiencies to conform with the 
amended borrowing rates of Regulation A, while approximating the 
current level of the reserve deficiency charge. The Board for good 
cause finds that delaying the change in the penalty charge for reserve 
deficiencies in order to allow notice and public comment on the change 
is unnecessary.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), the Board certifies that the amendments to Regulation A 
will not have a significantly adverse economic impact on a substantial 
number of small entities.
    Regulation A establishes rules under which Federal Reserve Banks 
may extend credit to depository institutions as a backup source of 
liquidity. The final rule replaces the existing adjustment and extended 
credit programs with primary and secondary credit programs. Like the 
existing regulation, the final rule does not require an institution to 
use those programs. The vast majority of institutions that choose to 
borrow under the new programs will be eligible for primary credit, 
which has fewer conditions, requirements, and administrative costs than 
the adjustment credit program that it replaces. The final rule does not 
materially alter the existing seasonal credit program, which is 
available to small depository institutions with pronounced seasonal 
funding needs, except to remove a prerequisite to borrowing that the 
Reserve Banks in practice have not used for some time.
    Based on 2001 call report data, there are approximately 16,250 
depository institutions in the United States that have assets of $150 
million or less and thus are considered small entities for purposes of 
the Regulatory Flexibility Act. In 2001, approximately 161 small 
depository institutions received adjustment credit, none received 
extended credit, and approximately 156 received seasonal credit.\17\ 
Although the Board solicited comment on the impact that the proposed 
rule would have on small depository institutions, no commenters 
specifically addressed that subject. However, the Board anticipates 
that the few small depository institutions that make use of the 
existing discount window programs will find the new programs to be 
comparatively more accessible and less burdensome, which should enable 
more efficient use of the discount window.
---------------------------------------------------------------------------

    \17\ The Board notes that the volume for seasonal credit in 2001 
was below average.
---------------------------------------------------------------------------

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule 
under the authority delegated to the Board by the Office of Management 
and Budget. The final rule contains no new collections of information 
and proposes no substantive changes to existing collections of 
information pursuant to the Paperwork Reduction Act.

List of Subjects in 12 CFR Parts 201 and 204

    Banks, Banking, Federal Reserve System, Reporting and recordkeeping 
requirements.

Authority and Issuance

    For the reasons set forth in the preamble, the Board is amending 12 
CFR Chapter II as follows:

PART 201--EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION 
A)

    1. The authority citation for part 201 is revised to read as 
follows:

    Authority: 12 U.S.C. 248(i)-(j), 343 et seq., 347a, 347b, 347c, 
348 et seq., 357, 374, 374a, and 461.

    2. Sections 201.1 through 201.5 are revised to read as follows:


Sec.  201.1  Authority, purpose and scope.

    (a) Authority. This part is issued under the authority of sections 
10A, 10B, 11(i), 11(j), 13, 13A, 14(d), and 19 of the Federal Reserve 
Act (12 U.S.C. 248(i)-(j), 343 et seq., 347a, 347b, 347c, 348 et seq., 
357, 374, 374a, and 461).
    (b) Purpose and scope. This part establishes rules under which a 
Federal Reserve Bank may extend credit to depository institutions and 
others. Except as otherwise provided, this part applies to United 
States branches and agencies of foreign banks that are subject to 
reserve requirements under Regulation D (12 CFR part 204) in the same 
manner and to the same extent as this part applies to depository 
institutions. The Federal Reserve System extends credit with due regard 
to the basic objectives of monetary policy and the maintenance of a 
sound and orderly financial system.


Sec.  201.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) Appropriate federal banking agency has the same meaning as in 
section 3 of the Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 
1813(q)).
    (b) Critically undercapitalized insured depository institution 
means any insured depository institution as defined in section 3 of the 
FDI Act (12 U.S.C. 1813(c)(2)) that is deemed to be critically 
undercapitalized under section 38 of the FDI Act (12 U.S.C. 
1831o(b)(1)(E)) and its implementing regulations.
    (c)(1) Depository institution means an institution that maintains 
reservable transaction accounts or nonpersonal time deposits and is:
    (i) An insured bank as defined in section 3 of the FDI Act (12 
U.S.C. 1813(h)) or a bank that is eligible to make application to 
become an insured bank under section 5 of such act (12 U.S.C. 1815);
    (ii) A mutual savings bank as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(f)) or a bank that is eligible to make application to 
become an insured bank under section 5 of such act (12 U.S.C. 1815);
    (iii) A savings bank as defined in section 3 of the FDI Act (12 
U.S.C. 1813(g)) or a bank that is eligible to make application to 
become an insured bank under section 5 of such act (12 U.S.C. 1815);
    (iv) An insured credit union as defined in section 101 of the 
Federal Credit Union Act (12 U.S.C. 1752(7)) or a credit union that is 
eligible to make application to become an insured credit union pursuant 
to section 201 of such act (12 U.S.C. 1781);
    (v) A member as defined in section 2 of the Federal Home Loan Bank 
Act (12 U.S.C. 1422(4)); or
    (vi) A savings association as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(b)) that is an insured depository institution as 
defined in section 3 of the act (12 U.S.C. 1813(c)(2)) or is eligible 
to apply to become an insured depository institution under section 5 of 
the act (12 U.S.C. 15(a)).
    (2) The term depository institution does not include a financial 
institution

[[Page 67786]]

that is not required to maintain reserves under Sec.  204.1(c)(4) of 
Regulation D (12 CFR 204.1(c)(4)) because it is organized solely to do 
business with other financial institutions, is owned primarily by the 
financial institutions with which it does business, and does not do 
business with the general public.
    (d) Transaction account and nonpersonal time deposit have the 
meanings specified in Regulation D (12 CFR part 204).
    (e) Undercapitalized insured depository institution means any 
insured depository institution as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(c)(2)) that:
    (1) Is not a critically undercapitalized insured depository 
institution; and
    (2)(i) Is deemed to be undercapitalized under section 38 of the FDI 
Act (12 U.S.C. 1831o(b)(1)(C)) and its implementing regulations; or
    (ii) Has received from its appropriate federal banking agency a 
composite CAMELS rating of 5 under the Uniform Financial Institutions 
Rating System (or an equivalent rating by its appropriate federal 
banking agency under a comparable rating system) as of the most recent 
examination of such institution.
    (f) Viable, with respect to a depository institution, means that 
the Board of Governors or the appropriate federal banking agency has 
determined, giving due regard to the economic conditions and 
circumstances in the market in which the institution operates, that the 
institution is not critically undercapitalized, is not expected to 
become critically undercapitalized, and is not expected to be placed in 
conservatorship or receivership. Although there are a number of 
criteria that may be used to determine viability, the Board of 
Governors believes that ordinarily an undercapitalized insured 
depository institution is viable if the appropriate federal banking 
agency has accepted a capital restoration plan for the depository 
institution under 12 U.S.C. 1831o(e)(2) and the depository institution 
is complying with that plan.


Sec.  201.3  Extensions of credit generally.

    (a) Advances to and discounts for a depository institution. (1) A 
Federal Reserve Bank may lend to a depository institution either by 
making an advance secured by acceptable collateral under Sec.  201.4 of 
this part or by discounting certain types of paper. A Federal Reserve 
Bank generally extends credit by making an advance.
    (2) An advance to a depository institution must be secured to the 
satisfaction of the Federal Reserve Bank that makes the advance. 
Satisfactory collateral generally includes United States government and 
federal-agency securities, and, if of acceptable quality, mortgage 
notes covering one-to four-family residences, state and local 
government securities, and business, consumer, and other customer 
notes.
    (3) If a Federal Reserve Bank concludes that a discount would meet 
the needs of a depository institution or an institution described in 
section 13A of the Federal Reserve Act (12 U.S.C. 349) more 
effectively, the Reserve Bank may discount any paper indorsed by the 
institution, provided the paper meets the requirements specified in the 
Federal Reserve Act.
    (b) No obligation to make advances or discounts. A Federal Reserve 
Bank shall have no obligation to make, increase, renew, or extend any 
advance or discount to any depository institution.
    (c) Information requirements. (1) Before extending credit to a 
depository institution, a Federal Reserve Bank should determine if the 
institution is an undercapitalized insured depository institution or a 
critically undercapitalized insured depository institution and, if so, 
follow the lending procedures specified in Sec.  201.5.
    (2) Each Federal Reserve Bank shall require any information it 
believes appropriate or desirable to ensure that assets tendered as 
collateral for advances or for discount are acceptable and that the 
borrower uses the credit provided in a manner consistent with this 
part.
    (3) Each Federal Reserve Bank shall:
    (i) Keep itself informed of the general character and amount of the 
loans and investments of a depository institution as provided in 
section 4(8) of the Federal Reserve Act (12 U.S.C. 301); and
    (ii) Consider such information in determining whether to extend 
credit.
    (d) Indirect credit for others. Except for depository institutions 
that receive primary credit as described in Sec.  201.4(a), no 
depository institution shall act as the medium or agent of another 
depository institution in receiving Federal Reserve credit except with 
the permission of the Federal Reserve Bank extending credit.


Sec.  201.4  Availability and terms of credit.

    (a) Primary credit. A Federal Reserve Bank may extend primary 
credit on a very short-term basis, usually overnight, as a backup 
source of funding to a depository institution that is in generally 
sound financial condition in the judgment of the Reserve Bank. Such 
primary credit ordinarily is extended with minimal administrative 
burden on the borrower. A Federal Reserve Bank also may extend primary 
credit with maturities up to a few weeks as a backup source of funding 
to a depository institution if, in the judgment of the Reserve Bank, 
the depository institution is in generally sound financial condition 
and cannot obtain such credit in the market on reasonable terms. Credit 
extended under the primary credit program is granted at the primary 
credit rate.
    (b) Secondary credit. A Federal Reserve Bank may extend secondary 
credit on a very short-term basis, usually overnight, as a backup 
source of funding to a depository institution that is not eligible for 
primary credit if, in the judgment of the Reserve Bank, such a credit 
extension would be consistent with a timely return to a reliance on 
market funding sources. A Federal Reserve Bank also may extend longer-
term secondary credit if the Reserve Bank determines that such credit 
would facilitate the orderly resolution of serious financial 
difficulties of a depository institution. Credit extended under the 
secondary credit program is granted at a rate above the primary credit 
rate.
    (c) Seasonal credit. A Federal Reserve Bank may extend seasonal 
credit for periods longer than those permitted under primary credit to 
assist a smaller depository institution in meeting regular needs for 
funds arising from expected patterns of movement in its deposits and 
loans. An interest rate that varies with the level of short-term market 
interest rates is applied to seasonal credit.
    (1) A Federal Reserve Bank may extend seasonal credit only if:
    (i) The depository institution's seasonal needs exceed a threshold 
that the institution is expected to meet from other sources of 
liquidity (this threshold is calculated as a certain percentage, 
established by the Board of Governors, of the institution's average 
total deposits in the preceding calendar year); and
    (ii) The Federal Reserve Bank is satisfied that the institution's 
qualifying need for funds is seasonal and will persist for at least 
four weeks.
    (2) The Board may establish special terms for seasonal credit when 
depository institutions are experiencing unusual seasonal demands for 
credit in a period of liquidity strain.
    (d) Emergency credit for others. In unusual and exigent 
circumstances and after consultation with the Board of Governors, a 
Federal Reserve Bank may extend credit to an individual, partnership, 
or corporation that is not a depository institution if, in the judgment 
of the Federal Reserve Bank, credit is not available from other sources 
and failure to obtain such credit would adversely affect the economy. 
If

[[Page 67787]]

the collateral used to secure emergency credit consists of assets other 
than obligations of, or fully guaranteed as to principal and interest 
by, the United States or an agency thereof, credit must be in the form 
of a discount and five or more members of the Board of Governors must 
affirmatively vote to authorize the discount prior to the extension of 
credit. Emergency credit will be extended at a rate above the highest 
rate in effect for advances to depository institutions.


Sec.  201.5  Limitations on availability and assessments.

    (a) Lending to undercapitalized insured depository institutions. A 
Federal Reserve Bank may make or have outstanding advances to or 
discounts for a depository institution that it knows to be an 
undercapitalized insured depository institution, only:
    (1) If, in any 120-day period, advances or discounts from any 
Federal Reserve Bank to that depository institution are not outstanding 
for more than 60 days during which the institution is an 
undercapitalized insured depository institution; or
    (2) During the 60 calendar days after the receipt of a written 
certification from the chairman of the Board of Governors or the head 
of the appropriate federal banking agency that the borrowing depository 
institution is viable; or
    (3) After consultation with the Board of Governors. In unusual 
circumstances, when prior consultation with the Board is not possible, 
a Federal Reserve Bank should consult with the Board as soon as 
possible after extending credit that requires consultation under this 
paragraph (a)(3).
    (b) Lending to critically undercapitalized insured depository 
institutions. A Federal Reserve Bank may make or have outstanding 
advances to or discounts for a depository institution that it knows to 
be a critically undercapitalized insured depository institution only:
    (1) During the 5-day period beginning on the date the institution 
became a critically undercapitalized insured depository institution; or
    (2) After consultation with the Board of Governors. In unusual 
circumstances, when prior consultation with the Board is not possible, 
a Federal Reserve Bank should consult with the Board as soon as 
possible after extending credit that requires consultation under this 
paragraph (b)(2).
    (c) Assessments. The Board of Governors will assess the Federal 
Reserve Banks for any amount that the Board pays to the FDIC due to any 
excess loss in accordance with section 10B(b) of the Federal Reserve 
Act. Each Federal Reserve Bank shall be assessed that portion of the 
amount that the Board of Governors pays to the FDIC that is 
attributable to an extension of credit by that Federal Reserve Bank, up 
to 1 percent of its capital as reported at the beginning of the 
calendar year in which the assessment is made. The Board of Governors 
will assess all of the Federal Reserve Banks for the remainder of the 
amount it pays to the FDIC in the ratio that the capital of each 
Federal Reserve Bank bears to the total capital of all Federal Reserve 
Banks at the beginning of the calendar year in which the assessment is 
made, provided, however, that if any assessment exceeds 50 percent of 
the total capital and surplus of all Federal Reserve Banks, whether to 
distribute the excess over such 50 percent shall be made at the 
discretion of the Board of Governors.


Sec. Sec.  201.6-201.9  [Removed]

    3. Sections 201.6, 201.7, 201.8, and 201.9 are removed.

    4. Section 201.51 is revised to read as follows:


Sec.  201.51  Interest rates applicable to credit extended by a Federal 
Reserve Bank.

    (a) Primary credit. The rate for primary credit provided to 
depository institutions under Sec.  201.4(a) is a rate above the target 
federal funds rate of the Federal Open Market Committee.
    (b) Secondary credit. The rate for secondary credit extended to 
depository institutions under Sec.  201.4(c) is a rate above the 
primary credit rate.
    (c) Seasonal credit. The rate for seasonal credit extended to 
depository institutions under Sec.  201.4(b) is a flexible rate that 
takes into account rates on market sources of funds.
    (d) Primary credit rate in a financial emergency. (1) The primary 
credit rate at a Federal Reserve Bank is the target federal funds rate 
of the Federal Open Market Committee if:
    (i) In a financial emergency the Reserve Bank has established the 
primary credit rate at that rate; and
    (ii) The Chairman of the Board of Governors (or, in the Chairman's 
absence, his authorized designee) certifies that a quorum of the Board 
is not available to act on the Reserve Bank's rate establishment.
    (2) For purposes of this paragraph (d), a financial emergency is a 
significant disruption to the U.S. money markets resulting from an act 
of war, military or terrorist attack, natural disaster, or other 
catastrophic event.


Sec.  201.52  [Removed]

    5. Section 201.52 is removed.

PART 204--RESERVE REQUIREMENTS OF DEPOSITORY INSTITUTIONS 
(REGULATION D)

    1. The authority citation for part 204 continues to read as 
follows:

    Authority: 12 U.S.C. 248(a), 248(c), 371a, 461, 601, 611, and 
3105.

    2. Amend Sec.  204.7 by revising the second sentence of paragraph 
(a)(1) to read as follows:


Sec.  204.7  Penalties.

    (a) * * *
    (1) * * * Federal Reserve Banks are authorized to assess charges 
for deficiencies in required reserves at a rate of 1 percentage point 
per year above the primary credit rate, as provided in Sec.  201.51(a) 
of this chapter, in effect for borrowings from the Federal Reserve Bank 
on the first day of the calendar month in which the deficiencies 
occurred. * * *
* * * * *

    By order of the Board of Governors of the Federal Reserve 
System, October 31, 2002.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 02-28115 Filed 11-6-02; 8:45 am]
BILLING CODE 6210-01-P