98-31673. Financial Management Policies; Financial Derivatives  

  • [Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
    [Rules and Regulations]
    [Pages 66348-66350]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-31673]
    
    
    
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    _______________________________________________________________________
    
    Part IV
    
    
    
    
    
    Department of the Treasury
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Office of Thrift Management
    
    
    
    _______________________________________________________________________
    
    
    
    12 CFR Part 563
    
    
    
    Financial Management Policies: Financial Derivatives; Final Rule and 
    Thrift Bulletin 13a; Notice
    
    Federal Register / Vol. 63, No. 230 / Tuesday, December 1, 1998 / 
    Rules and Regulations
    
    [[Page 66348]]
    
    
    
    DEPARTMENT OF THE TREASURY
    
    Office of Thrift Supervision
    
    12 CFR Part 563
    
    [No. 98-116]
    RIN 1550-AB13
    
    
    Financial Management Policies; Financial Derivatives
    
    ACTION: Final rule.
    
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    SUMMARY: The Office of Thrift Supervision (OTS) is issuing a final rule 
    on financial derivatives. The final rule permits savings associations 
    to engage in transactions involving financial derivatives to the extent 
    that these transactions are authorized under applicable law and are 
    otherwise safe and sound. In addition, the final rule describes the 
    responsibilities of a savings association's board of directors and 
    management with respect to financial derivatives. Elsewhere in today's 
    Federal Register, OTS is publishing a Thrift Bulletin that provides 
    supplemental supervisory guidance on the use of financial derivatives.
    
    EFFECTIVE DATE: This final rule is effective January 1, 1999. OTS will 
    not object if an institution wishes to apply this final rule beginning 
    December 1, 1998.
    
    FOR FURTHER INFORMATION CONTACT: Anthony G. Cornyn, Director of Risk 
    Management, (202/906-5727), Ed Irmler, Senior Project Manager, (202/
    906-5730), Jonathan D. Jones, Senior Economist (202/906-5729), Risk 
    Management; or Vern McKinley, Senior Attorney (202/906-6241), 
    Regulations and Legislation Division, Office of the Chief Counsel, 
    Office of Thrift Supervision, 1700 G Street, N.W., Washington, DC 
    20552.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
        OTS's current regulations on financial derivatives were first 
    adopted over fifteen years ago.1 These regulations have 
    remained virtually unchanged, notwithstanding the development of new 
    financial derivative instruments. On April 23, 1998, OTS proposed a 
    comprehensive revision of these outmoded regulations.2
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        \1\ 44 FR 29870 (May 23, 1979) (Forward commitments); 46 FR 
    36832 (July 16, 1981) (Futures transactions); 47 FR 36625 (August 
    23, 1982) (Financial options).
        \2\ 63 FR 20252 (April 23, 1998).
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        One of the goals of the proposed rule was to address the broad 
    range of financial derivative transactions in which thrifts may 
    currently engage. The current regulations address three types of 
    financial derivatives: forward commitments, futures transactions and 
    financial options transactions. See 12 CFR 563.173, 563.174 and 
    563.175. The current rules, thus, do not address all of the derivative 
    instruments that have been developed over the past twenty years. 
    Significantly, these rules do not address interest rate swaps, a 
    derivative instrument that thrifts commonly use to address interest 
    rate risk.
        The overriding goal of the proposed rule, however, was to ensure 
    the safe and sound management of the risks associated with financial 
    derivatives. Accordingly, the proposed regulation emphasized that 
    derivatives activities must be conducted in a safe and sound manner, 
    and set forth the responsibilities of the board of directors and 
    management with respect to financial derivatives.
        The proposed rule was also intended to reduce regulatory burden 
    consistent with statutory requirements for safe and sound operations. 
    Accordingly, OTS proposed to delete regulatory requirements that were 
    no longer considered to be essential for safety and soundness, 
    redrafted other requirements as guidance, and revised the remaining 
    existing requirements as broader and more flexible regulatory 
    requirements for all types of financial derivative transactions. OTS's 
    proposed approach, which relied more on guidance than detailed 
    regulations, more closely resembled the bank regulatory agencies' 
    approach with regard to banks' use of financial 
    derivatives.3
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        \3\ See e.g., OCC Banking Circular 277 (October 27, 1993).
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        At the same time it issued the proposed rule, OTS proposed 
    comprehensive guidance regarding savings associations' risk management 
    practices, including those pertaining to derivatives 
    transactions.4 Proposed Thrift Bulletin 13a (TB 13a) 
    (``Management of Interest Rate Risk, Investment Securities, and 
    Derivatives Activities'') included specific guidance on how thrifts 
    should implement the Federal Financial Institutions Examination 
    Council's ``Supervisory Policy Statement on Investment Securities and 
    End-User Derivatives Activities'' (FFIEC policy statement).5
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        \4\ 63 FR 20257 (April 23, 1998).
        \5\ 63 FR 20191 (April 23, 1998). The FFIEC policy statement 
    provides general guidance on sound practices for managing the risks 
    of investment securities and derivatives activities.
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    II. Summary of Public Comments
    
        The public comment period on the proposed rule and the proposed 
    thrift bulletin closed on June 22, 1998. One commenter, a savings 
    association, filed a comment supporting the proposed rule.
        The OTS received twenty-seven comments on proposed TB 13a. The 
    substance of these comments is addressed in connection with the related 
    TB 13a. Some of the commenters also addressed issues related to the 
    proposed rule.
        Several commenters suggested that the proposed thrift bulletin and 
    the proposed regulation on financial derivatives should be finalized 
    simultaneously. The OTS believes that TB 13a provides important and 
    necessary guidance on the management of interest rate risk, investment 
    securities and derivatives activities. Accordingly, it has made this 
    guidance effective on the date of publication in the Federal Register. 
    Subject to certain exceptions, however, 12 U.S.C. 4802(b) provides that 
    new regulations and amendments to regulations prescribed by a Federal 
    banking agency which impose additional reporting, disclosures, or other 
    new requirements on an insured depository institution shall take effect 
    on the first day of a calendar quarter which begins on or after the 
    date on which the regulations are published in final form. Section 
    4802(b) also permits persons who are subject to such regulations to 
    comply with the regulation before its effective date. Accordingly, OTS 
    will not object if an institution wishes to apply the provisions of 
    this final rule beginning with the date it is published in the Federal 
    Register.
        One commenter, a law firm representing numerous savings 
    associations, noted that the proposed rule text would incorporate TB 
    13a in several places. Proposed Sec. 563.172(c)(2), for example, states 
    that the savings association's board of directors should review TB 13a 
    and other applicable agency guidance on establishing a sound risk 
    management program. Similarly, proposed Sec. 563.172(d)(2) states that 
    management should review the thrift bulletin and other applicable 
    agency guidance on implementing a sound risk management program. The 
    commenter also noted that OTS sought public comment on TB 13a, a 
    procedural step that it does not generally follow for thrift bulletins. 
    The commenter asked OTS to clarify whether the cross-references in the 
    rule text and the procedures followed in promulgating the thrift 
    bulletin were intended to change the legal status of guidance in the 
    bulletin.
        The inclusion of cross-references to TB 13a and other agency 
    guidance in
    
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    the rule text merely serves as a reference point to the board of 
    directors and management in establishing and implementing written 
    policy and procedures on financial derivatives. As such, the cross-
    references to TB 13a only provide guidance on how financial derivatives 
    activities may be conducted in a safe and sound manner.6 
    They do not alter the legal status of the guidance contained in the 
    bulletin. Similarly, publication of TB 13a for public comment does not 
    change its legal status as a thrift bulletin. Rather, the bulletin 
    represents the Agency's best judgment in interpreting regulations and 
    statutes which it administers. The administrative procedures used 
    specifically to develop TB 13a were intended to provide OTS with public 
    comment on all possible aspects of the management of interest rate 
    risk, investment securities and derivative activities.
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        \6\ OTS has incorporated other similar cross-references into its 
    regulations. See 12 CFR 562.2(b) which cross-references guidance in 
    OTS bulletins, and examination handbooks.
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        One commenter on the Thrift Bulletin urged the OTS to amend its 
    capital regulations to eliminate the interest rate risk component at 12 
    CFR 567.7. The agency believes that a review of Sec. 567.7 may have 
    merit. However, neither the proposed Thrift Bulletin nor the notice of 
    proposed rulemaking suggested that the OTS was considering any revision 
    to its capital rules.
        In order to get the full benefit of public comment on this issue, 
    the OTS will shortly initiate a rulemaking that will examine the need 
    to retain Sec. 567.7 in light of the tools that are currently available 
    to measure and control interest rate risk.
    
    III. Final Rule
    
        Since no commenter suggested substantive changes to the proposed 
    rule and OTS has identified no other reasons to modify the text, OTS 
    has adopted the proposed rule without substantive change. Elsewhere in 
    today's Federal Register, OTS is also publishing a final TB 13a, which 
    provides supplemental supervisory guidance on the use of financial 
    derivatives.
    
    IV. Executive Order 12866
    
        OTS has determined that this final rule does not constitute a 
    ``significant regulatory action'' for the purposes of Executive Order 
    12866.
    
    V. Regulatory Flexibility Act Analysis
    
        Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS 
    has determined that this final rule does not have a significant 
    economic impact on a substantial number of small entities. The final 
    rule reduces the burden of complying with detailed regulations and 
    allows for more flexible treatment of derivatives activities for all 
    institutions, including small institutions.
    
    VI. Paperwork Reduction Act
    
        The recordkeeping requirements contained in this final rule have 
    been submitted to and approved by the Office of Management and Budget 
    in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
    3507(d)) under OMB Control No. 1550-0094. Comments on all aspects of 
    this information collection should be sent to Office of Management and 
    Budget, Paperwork Reduction Project (1550), Washington, D.C. 20503 with 
    copies to the Office of Thrift Supervision, Regulations and Legislation 
    Division, Chief Counsel's Office, 1700 G Street, NW., Washington, D.C. 
    20552.
        The information collection requirements contained in this rule are 
    found in 12 CFR 563.172. OTS requires this information for the proper 
    supervision of interest rate risk for its regulated savings 
    associations. The likely respondents/recordkeepers are OTS-regulated 
    savings associations.
        Respondents/recordkeepers are not required to respond to the 
    collections of information unless the collection displaces a current 
    valid OMB control number.
    
    VII. Unfunded Mandates Reform Act of 1995
    
        Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
    104-4 (Unfunded Mandates Act) requires that an agency prepare a 
    budgetary impact statement before promulgating a rule that includes a 
    Federal mandate that may result in expenditure by State, local, and 
    tribal governments, in the aggregate, or by the private sector, of $100 
    million or more in any one year. If a budgetary impact statement is 
    required, section 205 of the Unfunded Mandates Act also requires an 
    agency to identify and consider a reasonable number of regulatory 
    alternatives before promulgating a rule. As discussed above, this final 
    rule reduces regulatory burden by eliminating unnecessarily restrictive 
    regulations. OTS has, therefore, determined that the effect of the 
    final rule will not result in expenditures by State, local, or tribal 
    governments or by the private sector of $100 million or more. 
    Accordingly, OTS has not prepared a budgetary impact statement or 
    specifically addressed the regulatory alternatives considered.
    
    List of Subjects in 12 CFR Part 563
    
        Accounting, Advertising, Crime, Currency, Investments, Reporting 
    and recordkeeping requirements, Savings associations, Securities, 
    Surety bonds.
    
        Accordingly, the Office of Thrift Supervision amends part 563, 
    chapter V, title 12, Code of Federal Regulations as set forth below:
    
    PART 563--OPERATIONS
    
        1. The authority citation for part 563 continues to read as 
    follows:
    
        Authority: 12 U.S.C. 375b, 1462, 1462a, 1463, 1464, 1467a, 1468, 
    1817, 1820, 1828, 3806, 42 U.S.C. 4106.
    
    
    Secs. 563.173, 563.174, 563.175  [Removed]
    
        2. Sections 563.173, 563.174, and 563.175 are removed.
        3. Section 563.172 is added to read as follows:
    
    
    Sec. 563.172  Financial derivatives.
    
        (a) What is a financial derivative? A financial derivative is a 
    financial contract whose value depends on the value of one or more 
    underlying assets, indices, or reference rates. The most common types 
    of financial derivatives are futures, forward commitments, options, and 
    swaps. A mortgage derivative security, such as a collateralized 
    mortgage obligation or a real estate mortgage investment conduit, is 
    not a financial derivative under this section.
        (b) May I engage in transactions involving financial derivatives? 
    (1) If you are a federal savings association, you may engage in a 
    transaction involving a financial derivative if you are authorized to 
    invest in the assets underlying the financial derivative, the 
    transaction is safe and sound, and you otherwise meet the requirements 
    in this section.
        (2) If you are a state-chartered savings association, you may 
    engage in a transaction involving a financial derivative if your 
    charter or applicable state law authorizes you to engage in such 
    transactions, the transaction is safe and sound, and you otherwise meet 
    the requirements in this section.
        (3) In general, if you engage in a transaction involving a 
    financial derivative, you should do so to reduce your risk exposure.
        (c) What are my board of directors' responsibilities with respect 
    to financial derivatives? (1) Your board of directors is responsible 
    for effective oversight of financial derivatives activities.
        (2) Before you may engage in any transaction involving a financial 
    derivative, your board of directors must establish written policies and
    
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    procedures governing authorized financial derivatives. Your board of 
    directors should review Thrift Bulletin 13a, ``Management of Interest 
    Rate Risk, Investment Securities, and Derivatives Activities,'' and 
    other applicable agency guidance on establishing a sound risk 
    management program.
        (3) Your board of directors must periodically review:
        (i) Compliance with the policies and procedures established under 
    paragraph (c)(2) of this section; and
        (ii) The adequacy of these policies and procedures to ensure that 
    they continue to be appropriate to the nature and scope of your 
    operations and existing market conditions.
        (4) Your board of directors must ensure that management establishes 
    an adequate system of internal controls for transactions involving 
    financial derivatives.
        (d) What are management's responsibilities with respect to 
    financial derivatives? (1) Management is responsible for daily 
    oversight and management of financial derivatives activities. 
    Management must implement the policies and procedures established by 
    the board of directors and must establish a system of internal 
    controls. This system of internal controls should, at a minimum, 
    provide for periodic reporting to the board of directors and 
    management, segregation of duties, and internal review procedures.
        (2) Management must ensure that financial derivatives activities 
    are conducted in a safe and sound manner and should review Thrift 
    Bulletin 13a, ``Management of Interest Rate Risk, Investment 
    Securities, and Derivatives Activities'' (available at the address 
    listed at Sec. 516.1 of this chapter), and other applicable agency 
    guidance on implementing a sound risk management program.
        (e) What records must I keep on financial derivative transactions? 
    You must maintain records adequate to demonstrate compliance with this 
    section and with your board of directors' policies and procedures on 
    financial derivatives.
    
        Dated: November 20, 1998.
    
        By the Office of Thrift Supervision.
    Ellen Seidman,
    Director.
    [FR Doc. 98-31673 Filed 11-30-98; 8:45 am]
    BILLING CODE 6720-01-P
    
    
    

Document Information

Effective Date:
1/1/1999
Published:
12/01/1998
Department:
Thrift Supervision Office
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-31673
Dates:
This final rule is effective January 1, 1999. OTS will not object if an institution wishes to apply this final rule beginning December 1, 1998.
Pages:
66348-66350 (3 pages)
Docket Numbers:
No. 98-116
RINs:
1550-AB13: Financial Management Policies; Derivative Instruments
RIN Links:
https://www.federalregister.gov/regulations/1550-AB13/financial-management-policies-derivative-instruments
PDF File:
98-31673.pdf
CFR: (1)
12 CFR 563.172