[Federal Register Volume 75, Number 52 (Thursday, March 18, 2010)]
[Rules and Regulations]
[Pages 12962-12965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5707]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 360

RIN 3064-AD55


Transitional Safe Harbor Protection for Treatment by the Federal 
Deposit Insurance Corporation as Conservator or Receiver of Financial 
Assets Transferred by an Insured Depository Institution in Connection 
With a Securitization or Participation

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (``FDIC'') is 
amending its regulation, Defining Transitional Safe Harbor Protection 
for Treatment By The Federal Deposit Insurance Corporation As 
Conservator Or Receiver Of Financial Assets Transferred In Connection 
With A Securitization Or Participation. The amendment adds a new 
provision in order to continue for a limited time the safe harbor 
provision for securitizations that would be affected by recent changes 
to generally accepted accounting principles. In effect, the Final Rule 
permanently ``grandfathers'' all securitizations for which financial 
assets were transferred or, for revolving trusts, for which securities 
were issued prior to September 30, 2010 so long as those 
securitizations complied with the preexisting requirements under 
generally accepted accounting principles in effect prior to November 
15, 2009. The transitional safe harbor will apply irrespective of 
whether or not the securitization satisfies all of the conditions for 
sale accounting treatment under generally accepted accounting 
principles as effective for reporting periods after November 15, 2009. 
In

[[Page 12963]]

addition, the Final Rule confirms that section 360.6 will continue to 
protect participations.

DATES: Effective March 18, 2010, the Board of Directors of the Federal 
Deposit Insurance Corporation confirms as final with changes, the 
interim rule published on November 17, 2010 (74 FR 59066) .

FOR FURTHER INFORMATION CONTACT: Michael Krimminger, Office of the 
Chairman, 202-898-8950; George Alexander, Division of Resolutions and 
Receiverships, 202 898-3718; or R. Penfield Starke, Legal Division, 
703-562-2422, Federal Deposit Insurance Corporation, 550 17th Street, 
NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

    In 2000, the FDIC clarified the scope of its statutory authority as 
conservator or receiver to disaffirm or repudiate contracts of an 
insured depository institution (``IDI'') with respect to transfers of 
financial assets by an IDI in connection with a securitization or 
participation when it adopted a regulation codified at 12 CFR section 
360.6 (``the Securitization Rule''). This rule provides that the FDIC 
as conservator or receiver will not use its statutory authority to 
disaffirm or repudiate contracts to reclaim, recover, or recharacterize 
as property of the institution or the receivership any financial assets 
transferred by an IDI in connection with a securitization or 
participation or in the form of a participation, provided that such 
transfer meets all conditions for sale accounting treatment under 
generally accepted accounting principles (``GAAP''). The rule was a 
clarification, rather than a limitation, of the repudiation power 
because such power authorizes the conservator or receiver to breach a 
contract or lease entered into by an IDI and be legally excused from 
further performance but it is not an avoiding power enabling the 
conservator or receiver to recover assets that were previously 
transferred by the IDI in connection with the contract. The 
Securitization Rule provided a ``safe harbor'' to permit transfers of 
financial assets by IDIs to an issuing entity in connection with a 
securitization or in the form of a participation to satisfy the ``legal 
isolation'' condition of GAAP as it applies to institutions for which 
the FDIC may be appointed as conservator or receiver. To satisfy the 
legal isolation condition, the transferred financial asset must have 
been presumptively placed beyond the reach of the transferor, its 
creditors, a bankruptcy trustee, or in the case of an IDI, the FDIC as 
conservator or receiver. Since its adoption, the Securitization Rule 
has been relied on by securitization participants, including rating 
agencies, as assurance that investors could look to securitized 
financial assets for payment without concern that the financial assets 
would be interfered with by the FDIC as conservator or receiver.
    Recently, the implementation of new accounting rules has created 
uncertainty for securitization participants. On June 12, 2009, the 
Financial Accounting Standards Board (``FASB'') finalized modifications 
to GAAP through Statement of Financial Accounting Standards No. 166, 
Accounting for Transfers of Financial Assets, an Amendment of FASB 
Statement No. 140 (``FAS 166'') and Statement of Financial Accounting 
Standards No. 167, Amendments to FASB Interpretation No. 46(R) (``FAS 
167'') (the ``2009 GAAP Modifications''). The 2009 GAAP Modifications 
are effective for annual financial statement reporting periods that 
begin after November 15, 2009. For most IDIs, the 2009 GAAP 
Modifications were effective for reporting periods beginning after 
January 1, 2010. The 2009 GAAP Modifications made changes that affect 
whether a special purpose entity (``SPE'') must be consolidated for 
financial reporting purposes, thereby subjecting many SPEs to GAAP 
consolidation requirements. These accounting changes will require some 
IDIs to consolidate an issuing entity to which financial assets have 
been transferred for securitization on to their balance sheets for 
financial reporting purposes. Given the likely accounting treatment, 
securitizations could be considered to be an alternative form of 
secured borrowing. As a result, the safe harbor provision of the 
Securitization Rule may not apply to the transfer.
    FAS 166 also affects the treatment of participations issued by an 
IDI, in that it defines a participating interest essentially as a pari-
passu pro-rata interest in a financial asset and subjects the sale of a 
participation interest to the same conditions that are imposed on the 
sale of a financial asset. FAS 166 provides that a transfer of a 
participation interest that does not qualify for sale treatment will be 
viewed as a secured borrowing. While the GAAP modifications have some 
effect on participations, most participations are likely to continue to 
meet the conditions for sale accounting treatment under GAAP.
    The 2009 GAAP Modifications affect the way securitizations are 
viewed by the rating agencies and whether they can achieve ratings that 
are based solely on the credit quality of the financial assets, 
independent from the rating of the IDI. Rating agencies are concerned 
with several issues, including the ability of a securitization 
transaction to pay timely principal and interest in the event the FDIC 
is appointed receiver or conservator of the IDI. Moody's, Standard & 
Poor's, and Fitch have expressed the view that because of the 2009 GAAP 
modifications and the extent of the FDIC's rights and powers as 
conservator or receiver, bank securitization transactions are unlikely 
to receive AAA ratings and would have to be linked to the rating of the 
IDI. Because of these uncertainties, securitization practitioners asked 
the FDIC to provide assurances regarding the position of the 
conservator or receiver as to the treatment of both existing and future 
securitization transactions. In response to industry concerns, the FDIC 
published an Interim Final Rule on November 17, 2010 (74 FR 59066) that 
addressed securitizations (and participations) issued before March 31, 
2010.

II. The Interim Rule

    The Interim Rule amended the Securitization Rule by renumbering 
existing paragraph (b) as clause (b)(1) of paragraph (b). The Interim 
Rule inserted a new clause (b)(2) of the Securitization Rule that 
addresses any securitization (i) for which transfers of financial 
assets were made or (ii), for revolving trusts, for which beneficial 
interests were issued on or before March 31, 2010. The interim rule 
provided that, for these securitizations, the FDIC as conservator or 
receiver shall not, in the exercise of its statutory authority to 
disaffirm or repudiate contracts, reclaim, recover, or recharacterize 
as property of the institution or the receivership any such transferred 
financial assets notwithstanding that such transfer does not satisfy 
all conditions for sale accounting treatment under generally accepted 
accounting principles as effective for reporting periods after November 
15, 2009, if such transfer satisfied the conditions for sale accounting 
treatment set forth by generally accepted accounting principles in 
effect for reporting periods before November 15, 2009, except for the 
``legal isolation'' condition that is addressed by the rule.

III. Summary of Comments Received

    The FDIC requested comments on all aspects of the Interim Final 
Rule. The FDIC specifically requested that commenters respond to the 
following:

[[Page 12964]]

    1. Do the changes to the accounting rules affect the application of 
the Securitization Rule to participations? If so, are there changes to 
the Interim Rule that are needed to protect different types of 
participations issued by IDIs more broadly?
    2. Does the Interim Rule adequately encompass all transactions that 
should be included within its transitional safe harbor?
    3. Is the transition period to March 31, 2010 sufficient to 
implement changes required by the Proposed Rule and to structure 
transactions to comply with the new generally accepted accounting 
principles?
    In response to the request, the FDIC received two (2) comments from 
industry associations. A summary of the comments received follows.
    The American Bankers Association (ABA) and the American Bankers 
Association Securities Association (ABASA) provided a joint comment 
letter to the FDIC and one other comment letter was received from the 
American Securitization Forum (ASF). Both comment letters stressed that 
loan securitization and participations are important mechanisms that 
facilitate financial intermediation and the provision of credit and 
therefore, market participants need to have certainty regarding the 
treatment of these transactions in a conservatorship or receivership of 
the issuer.
    In specific reference to the first question posed in the interim 
rule, the ABA/ABASA commented that FAS 166 would prospectively affect 
the application of the Securitization Rule to participations. 
Therefore, it is important that the FDIC include participations in the 
protections afforded by the Interim rule. In addition, the ABA/ABASA 
suggested that the accounting treatment of a participation should not 
control its treatment by the FDIC in a receivership or conservatorship 
of the originating lender.
    In response to question 2, the ABA/ABASA responded that it 
is possible that the changes to GAAP might impact other types of 
variable interest entities and other entities, such as pooled funds and 
joint ventures. Participations or securities held by these entities may 
be consolidated and recorded on bank balance sheets under certain 
circumstances and therefore, such entities should also be protected 
under the final rule. Participations are protected under the final 
rule's transitional safe harbor until September 30, 2010 to the extent 
that they would have received sale accounting treatment but for the 
GAAP Modifications. The FDIC will be addressing whether other types of 
entities should receive protection under the safe harbor in a separate 
rulemaking (see Advanced Notice of Proposed Rulemaking Treatment by the 
Federal Deposit Insurance Corporation as Conservator or Receiver of 
Financial Assets Transferred by an Insured Depository Institution in 
Connection With a Securitization or Participation After March 31, 2010, 
75 FR 934, January 7, 2010).
    In response to question 3, both the ABA/ABASA and ASF 
commented that the permanent grandfathering of securitization and 
participation issuances in process through March 31, 2010 does not 
provide an adequate period of time for issuers to adapt to new 
regulatory requirements relating to the securitization process, 
particularly if changes to the terms of the transactions are necessary. 
The ASF suggested that the grandfathering period be extended for 
another 12-18 months after March 31, 2010.
    In light of the comments received, the FDIC has decided to extend 
the transitional safe harbor until September 30, 2010, so long as those 
securitizations and participations issued would have complied with the 
preexisting section 360.6 under generally accepted accounting 
principles in effect prior to November 15, 2009.

IV. The Final Rule

    The Final Rule amends the Securitization Rule by renumbering 
existing paragraph (b) as clause (b)(1) of paragraph (b). The Final 
Rule inserts a new clause (b)(2) of the Securitization Rule that 
addresses any securitization (i) for which transfers of financial 
assets were made or (ii), for revolving trusts, for which beneficial 
interests were issued on or before September 30, 2010. The rule 
provides that, for these securitizations, the FDIC as conservator or 
receiver shall not, in the exercise of its statutory authority to 
disaffirm or repudiate contracts, reclaim, recover, or recharacterize 
as property of the institution or the receivership any such transferred 
financial assets notwithstanding that such transfer does not satisfy 
all conditions for sale accounting treatment under generally accepted 
accounting principles as effective for reporting periods after November 
15, 2009, if such transfer satisfied the conditions for sale accounting 
treatment set forth by generally accepted accounting principles in 
effect for reporting periods before November 15, 2009, except for the 
``legal isolation'' condition that is addressed by the rule.

V. Regulatory Procedure

A. Administrative Procedure Act

    The Administrative Procedure Act (``APA'') provides that general 
notice of a proposed rulemaking shall be published and that interested 
persons shall have an opportunity to participate in the rulemaking by 
submitting written data, views, or arguments, except where the agency 
finds for good cause that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest. The 
FDIC has previously solicited and received comments regarding the 
Interim Final Rule. The FDIC for good cause finds that notice and 
public procedure with respect to this Final Rule would be 
impracticable, unnecessary, or contrary to the public interest because 
the 2009 GAAP Modifications become effective as of the financial 
reporting period starting on or after November 15, 2009 and 
retroactively apply to existing securitizations. The FDIC believes that 
it is in the best interest of the U.S. banking industry and economic 
for the FDIC to provide assurances with respect to the treatment of 
existing securitizations that will be affected by the 2009 GAAP 
Modifications.
    The APA also provides that publication of a substantive rule shall 
be made not less than 30 days before its effective date except as 
otherwise provided by the agency for good cause found and published 
with the rule. Because of the retroactive application of the 2009 GAAP 
Modifications and the immediate need for assurances for securitization 
participants and the banking industry with respect to existing 
securitizations and participations, the FDIC invokes this good cause 
exception to make this Final Rule effective as of March 18, 2010.

B. Community Development and Regulatory Improvement Act

    The Riegle Community Development and Regulatory Improvement Act 
(CDRIA) requires that any new rule prescribed by a Federal banking 
agency that imposes additional reporting, disclosures, or other new 
requirements on insured depository institutions take effect on the 
first day of a calendar quarter. 12 U.S.C. section 4802. This 
requirement does not apply because the Final Rule does not impose 
additional reporting, disclosures, or other new requirements on insured 
depository institution.

C. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. section 601 et seq.), it is certified that

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the Interim Rule will not have a significant economic impact on a 
substantial number of small business entities. The Final Rule merely 
extends the safe harbor of section 360.6(b) to securitizations issued 
before September 30, 2010 and does not represent a change in the law.

E. Small Business Regulatory Enforcement Fairness Act

    The Office of Management and Budget has determined that the rule is 
not a ``major rule'' within the meaning of the relevant sections of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 
U.S.C. 801 et seq.). As required by SBREFA, the FDIC will file the 
appropriate reports with Congress and the General Accounting Office so 
that the final rule may be reviewed.

F. Paperwork Reduction Act

    No collection of information pursuant to section 3504(h) of the 
Paperwork Reduction Act (44 U.S.C. section 3501 et seq.) is contained 
in the final rule. Consequently, no information was submitted to the 
Office of Management and Budget for review.

List of Subjects in 12 CFR Part 360

    Banks, Banking, Bank deposit insurance, Holding companies, National 
banks, Participations, Reporting and recordkeeping requirements, 
Savings associations, Securitizations.

0
For the reasons stated above, the Board of Directors of the Federal 
Deposit Insurance Corporation confirms as final, the interim rule 
amending chapter III of title 12 of the Code of Federal Regulations by 
amending Part 360 published on November 17, 2010 (74 FR 59066) with the 
following changes:

PART 360--RESOLUTION AND RECEIVERSHIP RULES

0
1. The authority citation for part 360 continues to read as follows:

    Authority:  12 U.S.C. 1821(d)(1), 1821(d)(10)(C), 1821(d)(11), 
1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), 
Pub.L. 101-73, 103 Stat. 357.


0
2. Amend Sec.  360.6 by revising paragraph (b)(2) to read as follows:


Sec.  360.6  Treatment by the Federal Deposit Insurance Corporation as 
conservator or receiver of financial assets transferred in connection 
with a securitization or participation.

* * * * *
    (b) * * *
    (2) With respect to any securitization for which transfers of 
financial assets were made, or for revolving trusts for which 
beneficial interests were issued, on or before September 30, 2010, the 
FDIC as conservator or receiver shall not, in the exercise of its 
statutory authority to disaffirm or repudiate contracts, reclaim, 
recover, or recharacterize as property of the institution or the 
receivership any such transferred financial assets notwithstanding that 
such transfer does not satisfy all conditions for sale accounting 
treatment under generally accepted accounting principles as effective 
for reporting periods after November 15, 2009, provided that such 
transfer satisfied the conditions for sale accounting treatment set 
forth by generally accepted accounting principles in effect for 
reporting periods before November 15, 2009, except for the ``legal 
isolation'' condition that is addressed by this rule.
* * * * *

    Dated at Washington, DC, this 10th day of March 2010.

    By Order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2010-5707 Filed 3-18-10; 8:45 am]
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