[Federal Register Volume 68, Number 73 (Wednesday, April 16, 2003)]
[Rules and Regulations]
[Pages 18532-18535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9320]


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FARM CREDIT ADMINISTRATION

12 CFR Part 615

RIN 3052-AC05


Funding and Fiscal Affairs, Loan Policies and Operations, and 
Funding Operations; Capital Adequacy

AGENCY: Farm Credit Administration.

ACTION: Final rule.

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SUMMARY: The Farm Credit Administration (FCA or agency) amends its 
capital adequacy regulations to add a definition of total liabilities 
for the net collateral ratio calculation, limit the amount of term 
preferred stock that may count as total surplus, clarify the 
circumstances in which we may waive disclosure requirements for an 
issuance of equities by a Farm Credit System (FCS, Farm Credit or 
System) institution, and make several nonsubstantive technical changes. 
These amendments update, modify, and clarify certain capital 
requirements.

EFFECTIVE DATE: This regulation will become effective 30 days after 
publication in the Federal Register during which either or both houses 
of

[[Page 18533]]

Congress are in session. We will publish a notice of the effective date 
in the Federal Register.

FOR FURTHER INFORMATION CONTACT: 
Alan Markowitz, Senior Policy Analyst, Office of Policy and Analysis, 
Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4479; TTY 
(703) 883-4434;
     or
Rebecca S. Orlich, Senior Attorney, Office of General Counsel, Farm 
Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY (703) 
883-2020.

SUPPLEMENTARY INFORMATION: 

I. Objectives

    The objectives of our rule are to:
    [sbull] Limit the effect of Statement of Financial Accounting 
Standards No. 133, Accounting for Derivative Instruments and Hedging 
Activities (SFAS 133), on the net collateral ratio;
    [sbull] Ensure that Farm Credit institutions do not overly rely on 
term preferred stock to meet regulatory capital requirements;
    [sbull] Explain how the FCA may include other debt or equity in the 
definition of permanent capital;
    [sbull] Clarify the requirements for the FCA to consider waiving 
disclosure requirements for issuances of stock to more than a single 
sophisticated investor; and
    [sbull] Make several nonsubstantive technical changes to our 
capital regulations.

II. Introduction

    The FCA proposed amendments to the capital adequacy regulations on 
October 22, 2002. (See 67 FR 64833.) We now adopt the final amendments 
without changes from the proposed rule. The amendments will update, 
modify, and clarify certain capital requirements, as follows:
    [sbull] Revisions to the net collateral ratio calculation will 
limit the effect of new accounting requirements for derivatives. This 
revision is in response to a petition we received in May 2001, from two 
System banks.
    [sbull] There will be a limit on the amount of term preferred stock 
that can be counted in total surplus.
    [sbull] Term preferred stock will be excluded from liabilities in 
the calculation of the net collateral ratio for System banks to the 
extent that the stock is counted as total surplus.
    [sbull] We also clarify certain requirements and make additional 
technical corrections.
    The amendments are more fully described in the section-by-section 
analysis below.

III. Comments

    We received one comment letter on the proposed rule. The comment 
was submitted on behalf of two Farm Credit banks. The banks commended 
the agency for developing the proposed rule, stated their agreement 
with the objectives set out in the proposed rule, and expressed support 
for the rule ``in its entirety.''

IV. Section-by-Section Analysis

Section 615.5201(e)--Definition of Direct Lender Institution

    We amend Sec.  615.5201(e) by removing the phrase ``loan of lease'' 
and adding, in its place, the phrase ``loan or lease'' to correct a 
typographical error.

Section 615.5201(l)--Definition of Permanent Capital

    We add a new paragraph (8) to the definition of permanent capital 
in Sec.  615.5201(l). This amendment reflects a statutory change to 
section 4.3A of the Farm Credit Act of 1971, as amended, by the Farm 
Credit Banks and Associations Safety and Soundness Act of 1992 (1992 
Act). The 1992 Act added section 4.3A(a)(1)(E), which includes in 
permanent capital any debt or equity instrument or other account that 
the FCA determines appropriate to be considered as permanent capital. 
The amendment states that we may include a debt or equity instrument or 
other account in permanent capital in whole or in part, and on a 
permanent or temporary basis. The language of this amendment is similar 
to language in existing Sec.  615.5301(b)(1)(iv) and (i)(5), which 
states that we may include additional items in core or total surplus 
when we deem their inclusion to be appropriate. The inclusion of 
additional items gives institutions more flexibility in meeting their 
capital requirements.

Section 615.5250(c)(5)--Waiver of Disclosure Requirements

    We amend Sec.  615.5250(c)(5) to clarify the circumstances in which 
we may waive any or all of the disclosures we require institutions to 
make to potential investors in stock issuances. The existing waiver 
language was interpreted by some institutions to apply only when a 
single investor acquires all the equities of an entire class issued by 
an institution. Our revision clarifies that we may waive disclosure 
requirements when the following conditions are met: (1) Equities are 
sold only to sophisticated investors; (2) equities are sold in blocks 
of $100,000 or more; and (3) purchasers of equities agree that any 
subsequent sale or transfer must be in blocks of $100,000 or more. Any 
subsequent sale or transfer of equities that is less than $100,000 must 
receive our prior written approval.
    We also correct the reference to paragraph (b) in existing 
paragraph (c)(5). The reference should have been to the disclosure 
requirements in paragraph (c)(1).

Section 615.5301(i)--Definition of Total Surplus

    We add a new paragraph (4) to the definition of total surplus in 
Sec.  615.5301(i) to limit the amount of term preferred stock that may 
be included in total surplus to 25 percent of permanent capital. 
Conforming changes are made to paragraph (3).
    Our existing regulations have included term preferred stock in 
total surplus without limit. The final rule contains a limitation equal 
to 25 percent of permanent capital, to ensure that System institutions 
do not overly rely on this type of capital to meet regulatory capital 
requirements. This limitation is generally comparable to the treatment 
of intermediate-term preferred stock in the regulatory capital 
requirements for commercial banks. Commercial banks' Federal financial 
regulators exclude term preferred stock from Tier 1 capital and limit 
the amount of intermediate-term preferred stock that can count as Tier 
2 capital to an amount equal to 50 percent of Tier 1 capital.\1\ In 
addition, the amount a commercial bank may count as Tier 2 capital can 
be no greater than its Tier 1 capital. This means, in effect, that no 
more than 25 percent of a commercial bank's minimum total regulatory 
(Tier 1 + Tier 2) capital may consist of intermediate-term preferred 
stock.\2\ We believe a similar limit to that imposed on commercial 
banks is also appropriate for System institutions and, therefore, 
impose a limitation on the total surplus ratio.
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    \1\ See 12 CFR Part 325, App. A (I.A.2(d)) (Federal Deposit 
Insurance Corporation); 12 CFR part 3, App. A (2(b)(4)) (Comptroller 
of the Currency); and 12 CFR part 208, App. A (II.A.2(iv)) (Board of 
Governors of the Federal Reserve System).
    \2\ This example assumes that a commercial bank has Tier 2 
capital equal in amount to its Tier 1 capital.
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    We note that the limitation will not prohibit System institutions 
from issuing preferred stock in excess of what may be counted as total 
surplus, but such excess amounts will not qualify as total surplus. The 
preferred stock will, however, be treated as permanent capital to the 
extent permitted in the permanent capital calculation.

[[Page 18534]]

New Section 615.5301(j)--Definition of Total Liabilities

    We add a new Sec.  615.5301(j) to define ``total liabilities'' for 
the purpose of calculating the net collateral ratio. This new 
definition limits the effect of the new accounting requirements for 
derivatives in SFAS 133, as promulgated by the Financial Accounting 
Standards Board. The net collateral ratio is a bank's net collateral, 
as defined in Sec.  615.5301(c), divided by the bank's total 
liabilities. Section 615.5301(j)(1) specifies that total liabilities 
are valued in accordance with generally accepted accounting principles 
(GAAP), with the following exclusions for the effects of SFAS 133: (1) 
Adjustments to the carrying amount \3\ of any liability that is 
designated as being hedged; and (2) any derivative recognized as a 
liability that is designated as a hedging instrument.
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    \3\ GAAP defines the carrying amount of a liability as the face 
amount of a liability increased or decreased by any applicable 
accrued interest payable and any applicable unamortized premium, 
discount, finance charges, or issue costs.
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    Prior to SFAS 133, GAAP allowed many derivative instruments to be 
treated by System banks as off-balance sheet items. However, with the 
adoption of SFAS 133, System banks must now recognize all derivative 
instruments at their fair value as either an asset or a liability on 
the balance sheet. If a derivative instrument qualifies as a designated 
hedge,\4\ System banks may be required to adjust the carrying value of 
certain assets or liabilities.
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    \4\ Under SFAS 133, derivative instruments designated as hedges 
routinely reduce an entity's exposure to changes in the fair value 
of an asset or liability (i.e., fair value hedge) or changes in 
expected future cash flows (i.e., cash flow hedge) attributable to a 
particular risk. For Farm Credit banks, derivative instruments are 
routinely used to reduce their exposure to (hedge against) changes 
in interest rates or other types of market risks.
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    As a result of SFAS 133, System banks that use derivatives may have 
to recognize an increase in the amount of total liabilities when 
calculating their net collateral ratios. These increases in total 
liabilities have resulted in lower net collateral ratios than what the 
banks would have had under the previous accounting requirements for 
derivative instruments.
    Under SFAS 133, a System bank's total liabilities will often 
increase for a derivative instrument designated as hedged. This 
resulting increase in the bank's liabilities from a derivative 
instrument designated as a hedge has no offsetting equivalent increase 
in the collateral amount used in the computation of its net collateral 
ratio because of the way net collateral is defined in Sec.  
615.5301(c). Thus, a derivative instrument used by a bank to hedge 
against interest rate risk can often result in an unintended decline in 
the bank's net collateral ratio.
    We believe a bank's net collateral ratio should not be negatively 
affected by derivative instruments appropriately used to hedge against 
interest rate risk or other types of market risks. Appropriate use of 
derivatives as hedges protects System banks against a true economic 
decline in their net collateral. Accordingly, our amendment excludes 
the effect of SFAS 133 on the calculation of the net collateral ratio 
for derivative instruments that qualify as hedges under SFAS 133.
    Conversely, we believe derivative instruments that are not 
designated to hedge specific assets or liabilities do not provide 
adequate protections for interest rate or other market risks. 
Therefore, our definition of total liabilities includes derivative 
instruments that do not qualify as designated hedges.
    Section 615.5301(j)(2) also excludes from total liabilities the 
amount of term preferred stock that is eligible to be counted as total 
surplus in the numerator of a bank's calculation of its total surplus 
ratio. In the absence of such exclusion, the existing rule could have 
required certain forms of term preferred stock to be considered 
liabilities. The exclusion eliminates the potential inconsistency of 
treating a particular balance sheet item as a liability for net 
collateral purposes but as capital for the total surplus ratio.

IV. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the FCA hereby certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Each of the banks in the System, considered together with its 
affiliated associations, has assets and annual income in excess of the 
amounts that would qualify them as small entities. Therefore, System 
institutions are not ``small entities'' as defined in the Regulatory 
Flexibility Act.

List of Subjects in 12 CFR Part 615

    Accounting, Agriculture, Banks, banking, Government securities, 
Investments, Rural areas.


0
For the reasons stated in the preamble, we amend part 615 of chapter 
VI, title 12 of the Code of Federal Regulations as follows:

PART 615--FUNDING AND FISCAL AFFAIRS, LOAN POLICIES AND OPERATIONS, 
AND FUNDING OPERATIONS

0
1. The authority citation for part 615 continues to read as follows:

    Authority: Secs. 1.5, 1.7, 1.10, 1.11, 1.12, 2.2, 2.3, 2.4, 2.5, 
2.12, 3.1, 3.7, 3.11, 3.25, 4.3, 4.3A, 4.9, 4.14B, 4.25, 5.9, 5.17, 
6.20, 6.26, 8.0, 8.3, 8.4, 8.6, 8.7, 8.8, 8.10, 8.12 of the Farm 
Credit Act (12 U.S.C. 2013, 2015, 2018, 2019, 2020, 2073, 2074, 
2075, 2076, 2093, 2122, 2128, 2132, 2146, 2154, 2154a, 2160, 2202b, 
2211, 2243, 2252, 2278b, 2278b-6, 2279aa, 2279aa-3, 2279aa-4, 
2279aa-6, 2279aa-7, 2279aa-8, 2279aa-10, 2279aa-12); sec. 301(a) of 
Pub. L. 100-233, 101 Stat. 1568, 1608.

Subpart H--Capital Adequacy

0
2. Amend Sec.  615.5201 as follows:

0
a. Remove the words ``loan of lease'' in paragraph (e) and add in their 
place, the words ``loan or lease''; and
0
b. Add a new paragraph (l)(8).


Sec.  615.5201  Definitions.

    (1) * * *
    (8) Any other debt or equity instruments or other accounts the FCA 
has determined are appropriate to be considered permanent capital. The 
FCA may permit one or more institutions to include all or a portion of 
such instrument, entry, or account as permanent capital, permanently or 
on a temporary basis, for purposes of this part.
* * * * *

Subpart I--Issuance of Equities

0
3. Amend Sec.  615.5250 by revising paragraph (c)(5) to read as 
follows:


Sec.  615.5250  Disclosure requirements.

    (c) * * *
    (5) For a class of stock, the FCA may waive any or all of the 
disclosure requirements of paragraph (c)(1) of this section when each 
investor acquires at least $100,000 of the stock if the sophistication 
of the purchaser warrants, provided that subsequent transfers of the 
stock in amounts of less than $100,000 must receive the prior written 
approval of the FCA.
* * * * *

Subpart K--Surplus and Collateral Requirements

0
4. Amend Sec.  615.5301 as follows:
0
a. Redesignate paragraphs (i)(4) through (i)(7) as paragraphs (i)(5) 
through (i)(8);
0
b. Remove the reference ``Sec.  615.5201(j)(4)(iv)'' in paragraph 
(i)(2)

[[Page 18535]]

and add in its place, the reference ``Sec.  615.5201(l)(4)(iv)'';
0
c. Revise paragraph (i)(3);
0
d. Add a new paragraph (i)(4); and
0
e. Add a new paragraph (j).


Sec.  615.5301  Definitions.

    (i) * * *
    (3) Common and perpetual preferred stock (other than allocated 
stock) that is not purchased or held as a condition of obtaining a 
loan, provided that the institution has no established plan or practice 
of retiring such stock;
    (4) Term preferred stock that is not purchased or held as a 
condition of obtaining a loan, up to a maximum of 25 percent of the 
institution's permanent capital (as calculated after deductions 
required in the permanent capital ratio computation). The amount of 
includible term stock must be reduced by 20 percent (net of 
redemptions) at the beginning of each of the last 5 years of the term 
of the instrument;
* * * * *
    (j) Total liabilities means liabilities valued in accordance with 
generally accepted accounting principles (GAAP), except that total 
liabilities shall exclude the following:
    (1) As set forth in Statement of Financial Accounting Standards No. 
133, Accounting for Derivative Instruments and Hedging Activities, as 
promulgated by the Financial Accounting Standards Board--
    (i) Adjustments to the carrying amount of any liability designated 
as being hedged; and
    (ii) Any derivative recognized as a liability that is designated as 
a hedging instrument.
    (2) Term preferred stock to the extent such stock is included as 
total surplus in the computation of the bank's total surplus ratio 
pursuant to Sec.  615.5301(i).

    Dated: April 10, 2003.
Jeanette C. Brinkley,
Secretary, Farm Credit Administration Board.
[FR Doc. 03-9320 Filed 4-15-03; 8:45 am]
BILLING CODE 6705-01-P