FRN for Final Statementy

1372

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

as fixed guideway miles for purposes of
FTA’s funding formulas.
Issued on January 8, 2007.
James S. Simpson,
Administrator.
[FR Doc. E7–263 Filed 1–10–07; 8:45 am]
BILLING CODE 4910–57–P

DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
[Docket No. 06–17]

Office of Thrift Supervision
[Docket No. 2006–55]

FEDERAL RESERVE SYSTEM
[Docket No. OP–1254]

FEDERAL DEPOSIT INSURANCE
CORPORATION
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–55043; File No. S7–08–06]

Interagency Statement on Sound
Practices Concerning Elevated Risk
Complex Structured Finance Activities
Office of the Comptroller of
the Currency, Treasury (‘‘OCC’’); Office
of Thrift Supervision, Treasury (‘‘OTS’’);
Board of Governors of the Federal
Reserve System (‘‘Board’’); Federal
Deposit Insurance Corporation
(‘‘FDIC’’); and Securities and Exchange
Commission (‘‘SEC’’) (collectively, the
‘‘Agencies’’).
ACTION: Notice of final interagency
statement.

cprice-sewell on PROD1PC66 with NOTICES

AGENCIES:

SUMMARY: The Agencies are adopting an
Interagency Statement on Sound
Practices Concerning Elevated Risk
Complex Structured Finance Activities
(‘‘Final Statement’’). The Final
Statement pertains to national banks,
state banks, bank holding companies
(other than foreign banks), federal and
state savings associations, savings and
loan holding companies, U.S. branches
and agencies of foreign banks, and SECregistered broker-dealers and
investment advisers (collectively,
‘‘financial institutions’’ or
‘‘institutions’’) engaged in complex
structured finance transactions
(‘‘CSFTs’’). In May 2004, the Agencies
issued and requested comment on a
proposed interagency statement (‘‘Initial
Proposed Statement’’). After reviewing
the comments received on the Initial
Proposed Statement, the Agencies in
May 2006 issued and requested

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

comment on a revised proposed
interagency statement (‘‘Revised
Proposed Statement’’). The
modifications to the Revised Proposed
Statement, among other things, made
the statement more principles-based and
focused on the identification, review
and approval process for those CSFTs
that may pose heightened levels of legal
or reputational risk to the relevant
institution (referred to as ‘‘elevated risk
CSFTs’’). After carefully reviewing the
comments on the Revised Proposed
Statement, the Agencies have adopted
the Final Statement with minor
modifications designed to clarify, but
not alter, the principles set forth in the
Revised Proposed Statement. The Final
Statement describes some of the internal
controls and risk management
procedures that may help financial
institutions identify, manage, and
address the heightened reputational and
legal risks that may arise from elevated
risk CSFTs. As discussed further below,
the Final Statement will not affect or
apply to the vast majority of financial
institutions, including most small
institutions, nor does it create any
private rights of action.
The Final Statement is
effective January 11, 2007.

EFFECTIVE DATE:

FOR FURTHER INFORMATION CONTACT:

OCC: Kathryn E. Dick, Deputy
Comptroller, Credit and Market Risk,
(202) 874–4660; Grace E. Dailey, Deputy
Comptroller, Large Bank Supervision,
(202) 874–4610; or Ellen Broadman,
Director, Securities and Corporate
Practices Division, (202) 874–5210,
Office of the Comptroller of the
Currency, 250 E Street, SW.,
Washington, DC 20219.
OTS: Fred J. Phillips-Patrick, Director,
Credit Policy, (202) 906–7295, and
Deborah S. Merkle, Project Manager,
Credit Policy, (202) 906–5688,
Examinations and Supervision Policy;
or David A. Permut, Senior Attorney,
Business Transactions Division, (202)
906–7505, Office of Thrift Supervision,
1700 G Street, NW., Washington, DC
20552.
Board: Sabeth I. Siddique, Assistant
Director, (202) 452–3861, or Virginia
Gibbs, Senior Supervisory Financial
Analyst, (202) 452–2521, Division of
Banking Supervision and Regulation; or
Kieran J. Fallon, Assistant General
Counsel, (202) 452–5270, or Anne B.
Zorc, Senior Attorney, (202) 452–3876,
Legal Division, Board of Governors of
the Federal Reserve System, 20th Street
and Constitution Avenue, NW.,
Washington, DC 20551. Users of
Telecommunication Device for Deaf
(TTD) only, call (202) 263–4869.

PO 00000

Frm 00064

Fmt 4703

Sfmt 4703

FDIC: Jason C. Cave, Associate
Director, (202) 898–3548; Division of
Supervision and Consumer Protection;
or Mark G. Flanigan, Counsel,
Supervision and Legislation Branch,
Legal Division, (202) 898–7426, Federal
Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
SEC: Mary Ann Gadziala, Associate
Director, Office of Compliance
Inspections and Examinations, (202)
551–6207; Catherine McGuire, Chief
Counsel, Linda Stamp Sundberg, Senior
Special Counsel (Banking and
Derivatives), or Randall W. Roy, Branch
Chief, Division of Market Regulation,
(202) 551–5550, Securities and
Exchange Commission, 100 F Street,
NE., Washington, DC 20549.
SUPPLEMENTARY INFORMATION:
I. Background
Financial markets have grown rapidly
over the past decade, and innovations in
financial instruments have facilitated
the structuring of cash flows and
allocation of risk among creditors,
borrowers, and investors in more
efficient ways. Financial derivatives for
market and credit risk, asset-backed
securities with customized cash flow
features, specialized financial conduits
that manage pools of assets, and other
types of structured finance transactions
serve important purposes, such as
diversifying risk, allocating cash flows
and reducing cost of capital. As a result,
structured finance transactions,
including the more complex variations
of these transactions, now are an
essential part of U.S. and international
capital markets.
When a financial institution
participates in a CSFT, it bears the usual
market, credit, and operational risks
associated with the transaction. In some
circumstances, a financial institution
also may face heightened legal or
reputational risks due to its involvement
in a CSFT. For example, a financial
institution involved in a CSFT may face
heightened legal or reputational risk if
the customer’s regulatory, tax or
accounting treatment for the CSFT, or
disclosures concerning the CSFT in its
public filings or financial statements, do
not comply with applicable laws,
regulations or accounting principles.1
In some cases, certain CSFTs appear
to have been used in illegal schemes
1 For a memorandum on the potential liability of
a financial institution for securities laws violations
arising from participation in a CSFT, see Letter from
Annette L. Nazareth, Director, Division of Market
Regulation, Securities and Exchange Commission,
to Richard Spillenkothen and Douglas W. Roeder,
dated December 4, 2003 (available at http://
www.federalreserve.gov/boarddocs/srletters/2004/
and http://www.occ.treas.gov).

E:\FR\FM\11JAN1.SGM

11JAN1

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices
that misrepresented the financial
condition of public companies to
investors and regulatory authorities.
After conducting investigations, the
OCC, Federal Reserve System and SEC
took strong and coordinated civil and
administrative enforcement actions
against certain financial institutions that
engaged in CSFTs that appeared to have
been designed or used to shield their
customers’ true financial health from
the public. These actions involved the
assessment of significant financial
penalties on the institutions and
required the institutions to take several
measures to strengthen their risk
management procedures for CSFTs.2
The complex structured finance
relationships involving these financial
institutions also sparked an
investigation by the Permanent
Subcommittee on Governmental Affairs
of the United States Senate,3 as well as
numerous lawsuits by private litigants.
The OCC, Federal Reserve System and
SEC also conducted special reviews of
several large financial institutions
engaged in CSFTs, and the Agencies
have focused attention on the CSFT
activities of financial institutions in the
normal course of the supervisory
process. These reviews and activities
indicate that many of the large financial
institutions engaged in CSFTs have
taken meaningful steps in recent years
to improve their control infrastructure
relating to CSFTs.
II. Initial and Revised Proposed
Statements

cprice-sewell on PROD1PC66 with NOTICES

To assist financial institutions in
identifying, managing, and addressing
the risks that may be associated with
CSFTs, the Agencies developed and
requested public comment on the Initial
Proposed Statement.4 The Initial
Proposed Statement described the types
2 See, e.g., In the Matter of Citigroup, Inc.,
Securities Exchange Act Release No. 48230 (July 28,
2003), Written Agreement by and between Citibank,
N.A. and the Office of the Comptroller of the
Currency, No. 2003–77 (July 28, 2003) (pertaining
to transactions entered into by Citibank, N.A. with
Enron Corp.) and Written Agreement by and
between Citigroup, Inc. and the Federal Reserve
Bank of New York, dated July 28, 2003 (pertaining
to transactions involving Citigroup Inc. and its
subsidiaries and Enron Corp. and Dynegy Inc.); SEC
v. J.P. Morgan Chase, SEC Litigation Release No.
18252 (July 28, 2003) and Written Agreement by
and among J.P. Morgan Chase & Co., the Federal
Reserve Bank of New York, and the New York State
Banking Department, dated July 28, 2003
(pertaining to transactions involving J.P. Morgan
Chase & Co. and its subsidiaries and Enron Corp.).
3 See Fishtail, Bacchus, Sundance, and Slapshot:
Four Enron Transactions Funded and Facilitated by
U.S. Financial Institutions, Report Prepared by the
Permanent Subcomm. on Investigations, Comm. on
Governmental Affairs, United States Senate, S. Rpt.
107–82 (2003).
4 See 69 FR 28980, May 19, 2004.

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

of policies and procedures that a
financial institution engaged in CSFTs
should have in place to allow the
institution to identify, document,
evaluate, and control the full range of
credit, market, operational, legal, and
reputational risks that may arise from
CSFTs. The agencies collectively
received comments from more than 40
commenters on the Initial Proposed
Statement. Although commenters
generally supported the Agencies’
efforts to describe the types of risk
management procedures and internal
controls that may help institutions
manage the risks associated with CSFTs,
virtually all of the commenters
recommended changes to the Initial
Proposed Statement.
After carefully reviewing the
comments on the Initial Proposed
Statement, the Agencies issued and
requested comment on a Revised
Proposed Statement.5 The Revised
Proposed Statement was modified in
numerous respects to clarify the
purpose, scope and effect of the
statement; make the statement more
risk-focused and principles based; and
focus the statement on those CSFTs that
may pose elevated levels of legal or
reputational risk to the relevant
institution.6
III. Overview of Comments on the
Revised Proposed Statement
The Agencies collectively received
written comments from 19 commenters
on the Revised Proposed Statement,
although many commenters submitted
identical comments to multiple
Agencies. Commenters included
banking organizations, financial services
trade associations, and individuals.
Commenters generally expressed strong
support for the Revised Proposed
Statement, including its principlesbased structure and focus on elevated
risk CSFTs. Many commenters also
asserted that the Revised Proposed
Statement provides a financial
institution appropriate flexibility to
develop internal controls and risk
management procedures that are
tailored to the institution’s own
business activities and organizational
structure.
Several commenters requested that
the Agencies clarify or revise the
Revised Proposed Statement in certain
respects. For example, some
commenters asked the Agencies to
5 See

71 FR 28326, May 16, 2006.
more detailed summary of the comments on
the Initial Proposed Statement, as well as the
changes made in response to those comments, is
contained in the Federal Register notice
accompanying the Revised Proposed Statement (71
FR 28326, 28328–29 (May 16, 2006)).
6A

PO 00000

Frm 00065

Fmt 4703

Sfmt 4703

1373

further streamline the provisions in the
statement pertaining to documentation
of elevated risk CSFTs, or clarify how
the U.S. branches or agencies of foreign
banks might implement risk
management systems, policies or
controls consistent with the statement’s
principles. In addition, some
commenters asked the Agencies to set
forth or clarify the legal standards
governing the potential liability of
financial institutions for CSFTs or
provide ‘‘safe harbors’’ from such
potential liability. One group of
commenters also argued that the
Revised Proposed Statement should not
be implemented because it allegedly
would encourage or condone illegal
conduct by financial institutions. The
comments received on the Revised
Proposed Statement are further
discussed below.
IV. Overview of Final Statement
After carefully reviewing the
comments on the Revised Proposed
Statement, the Agencies have made
minor modifications to the Revised
Proposed Statement in response to
comments and to clarify the principles,
scope, and intent of the Final Statement.
The Final Statement has been adopted
as supervisory guidance by the Board,
OCC, FDIC and OTS and as a policy
statement by the SEC. The Agencies will
use the Final Statement going forward
in reviewing the internal controls and
risk management policies, procedures
and systems of financial institutions
engaged in CSFTs as part of the
Agencies’ ongoing supervisory process.
The Agencies continue to believe that
it is important for a financial institution
engaged in CSFTs to have policies and
procedures that are designed to allow
the institution to effectively manage and
address the full range of risks associated
with its CSFT activities, including the
elevated legal or reputational risks that
may arise in connection with certain
CSFTs. For this reason, the Final
Statement describes the types of risk
management principles that the
Agencies believe may help a financial
institution to identify elevated risk
CSFTs and to evaluate, manage, and
address these risks within the
institution’s internal control
framework.7 These policies and
procedures should, among other things,
be designed to allow the institution to
identify elevated risk CSFTs during its
7 As noted in the Final Statement, financial
institutions are encouraged to refer to other
supervisory guidance and materials prepared by the
Agencies for further information concerning market,
credit and operational risk, as well as for further
information on legal and reputational risk, internal
audit and internal controls.

E:\FR\FM\11JAN1.SGM

11JAN1

1374

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

cprice-sewell on PROD1PC66 with NOTICES

transaction and new product approval
processes, and should provide for
elevated risk CSFTs to be reviewed by
appropriate levels of control and
management personnel at the
institution, including personnel from
control areas that are independent of the
business line(s) involved in the
transaction.
The Final Statement—like the Revised
Proposed Statement—applies to
financial institutions that are engaged in
CSFT activities and focuses on those
CSFTs that may create heightened levels
of legal or reputational risks for a
participating financial institution.
Because CSFTs typically are conducted
by a limited number of large financial
institutions, the Final Statement will
not affect or apply to the vast majority
of financial institutions, including most
small institutions.
As the Final Statement recognizes,
structured finance transactions
encompass a broad array of products
with varying levels of complexity. Most
structured finance transactions, such as
standard public mortgage-backed
securities and hedging-type transactions
involving ‘‘plain vanilla’’ derivatives or
collateralized debt obligations, are
familiar to participants in the financial
markets, have well-established track
records, and typically would not be
considered CSFTs for purposes of the
Final Statement. Some commenters
requested that the Agencies provide a
more extensive list of structured finance
transactions that typically would not be
considered CSFTs. The Agencies note
that the types of non-complex
transactions listed in the Final
Statement are only examples of the
types of transactions that typically
would not be considered CSFTs and
that any list of examples would not, and
could not, be all inclusive given the
changing nature of the structured
finance market. Consistent with the
principles-based approach of the Final
Statement, the Agencies believe the
statement appropriately highlights the
hallmarks of a non-complex
transaction—i.e., a well established
track record and familiarity to
participants in the financial markets—
that may guide institutions and
examiners in considering whether a
particular type of transaction should be
considered a CSFT now or in the future.
A. Identification, Due Diligence, and
Approval Processes for Elevated Risk
CSFTs
As noted above, a financial institution
should establish and maintain policies,
procedures and systems that are
designed to identify elevated risk CSFTs
as part of the institution’s transaction or

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

new product approval processes, and to
ensure that transactions or new
products identified as elevated risk
CSFTs are subject to heightened
review.8 In general, a financial
institution should conduct the level and
amount of due diligence for an elevated
risk CSFT that is commensurate with
the level of risks identified. A financial
institution’s policies and procedures
should provide that CSFTs identified as
potentially having elevated legal or
reputational risk are reviewed and
approved by appropriate levels of
management. The Agencies continue to
believe that the designated approval
process for elevated risk CSFTs should
include the institution’s representatives
from the relevant business line(s) and/
or client relationship management, as
well as from appropriate control areas
that are independent of the business
line(s) involved in the transaction. An
institution’s policies should provide
that new complex structured finance
products receive the approval of all
relevant control areas that are
independent of the profit center before
the product is offered to customers.9
The Final Statement—like the Revised
Proposed Statement—provides
examples of transactions that may
warrant additional scrutiny by an
institution. These examples include,
among other things, transactions that
appear to the institution to:
• Lack economic substance or
business purpose;
• Be designed or used primarily for
questionable accounting, regulatory, or
tax objectives, particularly when the
transactions are executed at year-end or
8 In response to comments, the Agencies have
modified the Final Statement to clarify that a U.S.
branch or agency of a foreign bank is not necessarily
expected to establish or adopt separate U.S.-based
risk management structures or policies for its CSFT
activities. In addition, the Agencies believe the
Final Statement provides U.S. branches and
agencies of foreign banks sufficient flexibility to
develop controls, risk management and reporting
structures, and lines of authority that are consistent
with the internal management structure of U.S.
branches and agencies. However, the risk
management structure and policies used by a U.S.
branch or agency, whether adopted or implemented
on a group-wide or stand-alone basis, should be
effective in allowing the branch or agency to
manage the risks associated with its CSFT activities.
9 One commenter sought clarification regarding
when during the new product approval process a
new complex structured finance product should
receive the approval of relevant control areas. The
Agencies note that the Final Statement is not
intended to prevent institutions from engaging in
initial or preliminary discussions or negotiations
with potential customers about a new complex
structured finance product. However, an institution
should obtain the necessary approvals for a new
complex structured finance product from
appropriate control areas before the institution
enters into, or becomes obligated to enter into, a
transaction with the customer.

PO 00000

Frm 00066

Fmt 4703

Sfmt 4703

at the end of a reporting period for the
customer; or
• Raise concerns that the client will
report or disclose the transaction in its
public filings or financial statements in
a manner that is materially misleading
or inconsistent with the substance of the
transaction or applicable regulatory or
accounting requirements.
A few commenters contended that the
examples of elevated risk CSFTs
contained in the Revised Proposed
Statement have characteristics that are
signals, if not conclusive proof, of
fraudulent activity, and recommended
that the Agencies inform financial
institutions that transactions or
products with any of these
characteristics should be considered
presumptively prohibited. The
commenters also argued that the
statement encourages or condones
illegal conduct by financial institutions.
The Agencies believe that CSFTs that
initially appear to an institution, during
the ordinary course of its new product
or transaction approval process, to have
one or more of the characteristics
identified in the Final Statement should
generally be identified as an elevated
risk CSFT, and the institution should
conduct due diligence for the
transaction that is commensurate with
the level of identified, potential risks.
The Agencies, however, do not believe
it is appropriate to provide that all
transactions initially identified as
potentially creating elevated legal or
reputational risks for an institution
should be considered presumptively
prohibited. For example, an institution,
after conducting additional due
diligence for a transaction initially
identified as an elevated risk CSFT, may
determine that the transaction does not,
in fact, have the characteristics that
initially triggered the review.
Alternatively, the institution may take
steps to address the legal or reputational
risks that initially triggered the review.
In this regard, the Final Statement
expressly provides that, if after
evaluating an elevated risk CSFT, a
financial institution determines that its
participation in the transaction would
create significant legal or reputational
risks for the institution, the financial
institution should take appropriate steps
to manage and address these risks. Such
steps may include modifying the
transaction or conditioning the
institution’s participation in the
transaction upon the receipt of
representations or assurances from the
customer that reasonably address the
heightened risks presented by the
transaction.
Importantly, the Final Statement
continues to provide that a financial

E:\FR\FM\11JAN1.SGM

11JAN1

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

cprice-sewell on PROD1PC66 with NOTICES

institution should decline to participate
in an elevated risk CSFT if, after
conducting appropriate due diligence
and taking appropriate steps to address
the risks from the transaction, the
institution determines that the
transaction presents unacceptable risks
to the institution or would result in a
violation of applicable laws, regulations
or accounting principles.10 The Final
Statement also expressly notes that
financial institutions must conduct their
activities in accordance with applicable
statutes and regulations. The Agencies
believe the Final Statement should
assist financial institutions engaged in
CSFTs in managing the risks associated
with these activities and complying
with the law, and does not, as some
commenters alleged, encourage or
condone illegal conduct.
Some commenters also requested that
the Agencies enunciate, clarify or
modify the legal standards governing
the potential liability of a financial
institution for participating in a CSFT
that is used for fraudulent or illegal
purposes. For example, some
commenters asked the Agencies to
declare that institutions do not have a
duty to ensure the accuracy of a client’s
public filings or accounting. Other
commenters asked that the Agencies
state that an institution will not be held
liable or responsible for a CSFT if the
institution has a reasonable degree of
confidence that the customer will report
or account for the transactions properly.
Other commenters expressed concern
that the Revised Proposed Statement, or
the comments submitted on that
document, attempted to alter the current
legal standards under which a financial
institution may be held liable for
fraudulent activity or criminally
responsible under the Federal securities
law or other laws.
As events in recent years have
highlighted, institutions may in certain
circumstances bear significant legal or
reputational risk from participating in a
CSFT. In light of these risks, the Final
Statement describes the types of risk
10 Some commenters asked the Agencies to clarify
that the Final Statement does not necessarily
prevent a financial institution from proceeding with
a CSFT simply because there may be some
ambiguity in how the transaction might be viewed
under the law or applicable accounting principles.
The Agencies recognize that in certain
circumstances ambiguities may exist as to how the
law or accounting principles apply to a CSFT,
particularly in light of the inherent complexity and
rapidly evolving nature of CSFTs. Nevertheless, as
discussed in the Final Statement, a financial
institution should maintain strong and effective
processes and controls designed to determine
whether any such ambiguities may create
significant legal or reputational risks for the
institution and to manage and address those risks
as appropriate.

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

management systems and internal
controls that may help a financial
institution engaged in CSFTs to identify
those CSFTs that may pose heightened
legal or reputational risk to the
institution, and to evaluate, manage,
and address those risks. Because the
Final Statement represents guidance on
the part of the Banking Agencies and a
policy statement on the part of the SEC,
it does not, by itself, establish any
legally enforceable requirements or
obligations. Moreover, as the Final
Statement expressly provides, it does
not create any private rights of action,
nor does it alter or expand the legal
duties and obligations that a financial
institution may have to a customer, its
shareholders or other parties under
applicable law. Accordingly, the
Agencies do not believe it is appropriate
or possible to address in the Final
Statement these legal concerns
expressed by commenters.
B. Documentation
The Final Statement states that a
financial institution should create and
collect sufficient documentation to,
among other things, verify that the
institution’s policies and procedures
related to elevated risk CSFTs are being
followed and allow the internal audit
function to monitor compliance with
those policies and procedures. The
Final Statement also provides that,
when an institution’s policies and
procedures require an elevated risk
CSFT to be submitted for approval to
senior management, the institution
should maintain the transaction-related
documentation provided to senior
management as well as other
documentation that reflect
management’s approval (or disapproval)
of the transaction, any conditions
imposed by senior management, and the
reasons for such action.
Several commenters strongly
suggested that the Agencies should
eliminate or modify the portions of the
statement that provide for a financial
institution to maintain certain
documentation related to elevated risk
CSFTs that are submitted to the
institution’s senior management for
approval (or denial). For example, some
commenters argued that institutions
should not be required to maintain any
documentation for declined
transactions. Other commenters
expressed concern that this provision
was inconsistent with the current
practice of financial institutions, would
require financial institutions to create
new and potentially extensive
documentation to memorialize all
aspects of the institution’s analytical
and decision-making process with

PO 00000

Frm 00067

Fmt 4703

Sfmt 4703

1375

respect to an elevated risk CSFT, or
would require institutions to create or
maintain extensive documentation even
for transactions that are approved or
rejected by junior staff.
As an initial matter, the Agencies note
that the Final Statement’s provisions
regarding documentation for elevated
risk CSFTs submitted to senior
management for approval (or
disapproval) do not apply to
transactions that may be reviewed and
acted on by more junior personnel in
accordance with the institution’s
policies and procedures. Rather, these
provisions apply only to those elevated
risk CSFTs that are identified by the
institution as potentially involving the
greatest degree of risk to the institution
and, for this reason, are required to be
reviewed by the institution’s senior
management. The Agencies believe that
it is important for institutions to
maintain documentation for this
category of elevated risk CSFTs,
whether approved or declined, that
reflects the factors considered by senior
management in taking such action. The
Agencies believe this type of
documentation may be of significant
benefit to the institution and to the
Agencies in reviewing the effectiveness
of the institution’s CSFT-related
policies, procedures, and internal
controls. However, to help address the
commenter’s concern about potential
burden, the Agencies have modified the
Final Statement to recognize that the
minutes of an institution’s reviewing
senior management committee may
have the information described and to
clarify that the documentation for a
transaction should reflect the factors
considered by senior management in
taking action, but does not have to detail
every aspect of the institution’s legal or
business analysis of the transaction.11
C. General Risk Management Principles
for Elevated Risk CSFTs
The Final Statement—like the Revised
Proposed Statement—also describes
some of the other key risk management
policies and internal controls that
financial institutions should have in
place for elevated risk CSFTs. For
example, the Final Statement provides
that the board of directors and senior
management of an institution should
establish a ‘‘tone at the top’’ through
both actions and formalized policies
that sends a strong message throughout
11 In light of comments, the Agencies have
modified the Documentation section of the
Statement to clarify that an institution should retain
sufficient documentation to establish that it has
provided the customer any disclosures concerning
an elevated risk CSFT that the institution is
otherwise required to provide to the customer.

E:\FR\FM\11JAN1.SGM

11JAN1

1376

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

cprice-sewell on PROD1PC66 with NOTICES

the financial institution about the
importance of compliance with the law
and overall good business ethics. The
Final Statement also describes the types
of training, reporting mechanisms, and
audit procedures that institutions
should have in place with respect to
elevated risk CSFTs. The Final
Statement also provides that a financial
institution should conduct periodic
independent reviews of its CSFT
activities to verify and monitor that its
policies and controls relating to elevated
risk CSFTs are being implemented
effectively and that elevated risk CSFTs
are accurately identified and receive
proper approvals.
In response to comments, the
Agencies have modified the Final
Statement to clarify that the
independent reviews conducted by a
financial institution may be performed
by the institution’s audit department or
an independent compliance function
within the institution. One commenter
also asked the Agencies to state that the
proper role of an institution’s
independent review function is only to
confirm that the institution’s policies
and procedures for elevated risk CSFTs
are being followed and that the function
should not assess the quality of the
decisions made by institution
personnel. The Agencies believe that an
institution’s audit or compliance
department should have the flexibility,
in appropriate circumstances, to review
the decisions made by institution
personnel during the review and
approval process for elevated risk
CSFTs and for this reason have not
made the recommended change.
V. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3506;
5 CFR Part 1320, Appendix A.1), the
Agencies reviewed the Final Statement.
The Agencies may not conduct or
sponsor, and an organization is not
required to respond to, this information
collection unless it displays a currently
valid OMB control number. The
Agencies previously determined that
certain provisions of the Revised
Proposed Statement contained
information collection requirements.
OMB reviewed and approved the
information collections contained in the
Revised Proposed Statement for the
FDIC, OTS, OCC and SEC; and the
Board reviewed the Revised Proposed
Statement under the authority delegated
to the Board by OMB (5 CFR Part 1320,
Appendix A.1).
OMB control numbers:
OCC: 1557–0229.
OTS: 1550–0111.
FRB: 7100–0311.

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

FDIC: 3064–0148.
SEC: 3235–0622.
Burden Estimates
OCC
Number of Respondents: 21.
Estimated Time per Response: 25
hours.
Total Estimated Annual Burden: 525
hours.
OTS
Number of Respondents: 5.
Estimated Time per Response: 25
hours.
Total Estimated Annual Burden: 125
hours.
Board
Number of Respondents: 20.
Estimated Time per Response: 25
hours.
Total Estimated Annual Burden: 500
hours.
FDIC
Number of Respondents: 5.
Estimated Time per Response: 25
hours.
Total Estimated Annual Burden: 125
hours.
SEC
Number of Respondents: 5.
Estimated Time per Response: 25
hours.
Total Estimated Annual Burden: 125
hours.
No commenters addressed the
Agencies’ information collection
estimates. The Agencies do not believe
that the clarifications included in this
Final Statement impact the burden
estimates previously developed and
approved for these information
collections. The Agencies have a
continuing interest in the public’s
opinions of our collections of
information. At any time, comments
regarding the burden estimate, or any
other aspect of this collection of
information, including suggestions for
reducing the burden, may be sent to:
OCC: You should direct your
comments to:
Communications Division, Office of
the Comptroller of the Currency, Public
Information Room, Mailstop 1–5,
Attention: 1557–0229, 250 E Street,
SW., Washington, DC 20219. In
addition, comments may be sent by fax
to (202) 874–4448, or by electronic mail
to regs.comments@occ.treas.gov. You
can inspect and photocopy the
comments at the OCC’s Public
Information Room, 250 E Street, SW.,
Washington, DC 20219. You can make
an appointment to inspect the
comments by calling (202) 874–5043.

PO 00000

Frm 00068

Fmt 4703

Sfmt 4703

Additionally, you should send a copy of
your comments to OCC Desk Officer,
1557–0229, by mail to U.S. Office of
Management and Budget, 725 17th
Street, NW., #10235, Washington, DC
20503, or by fax to (202) 395–6974.
You can request additional
information or a copy of the collection
from Mary Gottlieb, OCC Clearance
Officer, or Camille Dickerson, (202)
874–5090, Legislative and Regulatory
Activities Division, Office of the
Comptroller of the Currency, 250 E
Street, SW., Washington, DC 20219.
OTS: Information Collection
Comments, Chief Counsel’s Office,
Office of Thrift Supervision, 1700 G
Street, NW., Washington, DC 20552;
send a facsimile transmission to (202)
906–6518; or send an e-mail to
infocollection.comments@ots.treas.gov.
OTS will post comments and the related
index on the OTS Internet site at http://
www.treas.gov. In addition, interested
persons may inspect the comments at
the Public Reading Room, 1700 G Street,
NW., by appointment. To make an
appointment, call (202) 906–5922, send
an e-mail to public.info@ots.treas.gov, or
send a facsimile transmission to (202)
906–7755.
To obtain a copy of the submission to
OMB, contact Marilyn K. Burton at
marilyn.burton@ots.treas.gov, (202)
906–6467, or fax number (202) 906–
6518, Chief Counsel’s Office, Office of
Thrift Supervision, 1700 G Street, NW.,
Washington, DC 20552
Board: You may submit comments,
identified by FR 4022, by any of the
following methods:
• Agency Web site: http://
www.federalreserve.gov. Follow the
instructions for submitting comments at
http://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail:
Regs.comments@federalreserve.gov.
Include docket number in the subject
line of the message.
• Fax: (202) 452–3819 or (202) 452–
3102.
• Mail: Michelle Long, Federal
Reserve Board Clearance Officer (202)
452–3829, Division of Research and
Statistics, Board of Governors of the
Federal Reserve System, Washington,
DC 20551. Telecommunications Device
for the Deaf (TDD) users may contact
(202) 263–4869, Board of Governors of
the Federal Reserve System,
Washington, DC 20551.
All public comments are available
from the Board’s Web site at http://
www.federalreserve.gov/generalinfo/
foia/ProposedRegs.cfm as submitted,

E:\FR\FM\11JAN1.SGM

11JAN1

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices
unless modified for technical reasons.
Accordingly, your comments will not be
edited to remove any identifying or
contact information. Public comments
may also be viewed electronically or in
paper in Room MP–500 of the Board’s
Martin Building (20th and C Streets,
NW.) between 9 a.m. and 5 p.m. on
weekdays.
FDIC: Interested parties are invited to
submit written comments to the FDIC
concerning the Paperwork Reduction
Act implications of this proposal. Such
comments should refer to ‘‘Complex
Structured Finance Transactions, 3064–
0148.’’ Comments may be submitted by
any of the following methods:
• http://www.FDIC.gov/regulations/
laws/federal/propose.html.
• E-mail: comments@FDIC.gov.
Include Complex Structured Financial
Transactions, 3064–0148 in the subject
line of the message.
• Mail: Steven F. Hanft (202) 898–
3907, Federal Deposit Insurance
Corporation, 550 17th Street, NW.,
Washington, DC 20429.
• Hand Delivery: Comments may be
hand-delivered to the guard station at
the rear of the 17th Street Building
(located on F Street), on business days
between 7 a.m. and 5 p.m.
SEC: You should direct your
comments to: Office of Management and
Budget, Attention Desk Officer for the
Securities and Exchange Commission,
Office of Information and Regulatory
Affairs, Room 10102, New Executive
Office Building, Washington, DC 20503,
with a copy sent to Nancy M. Morris,
Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090 with
reference to File No. S7–08–06.
The Final Statement follows:
Interagency Statement on Sound
Practices Concerning Elevated Risk
Complex Structured Finance Activities

cprice-sewell on PROD1PC66 with NOTICES

I. Introduction
Financial markets have grown rapidly
over the past decade, and innovations in
financial instruments have facilitated
the structuring of cash flows and
allocation of risk among creditors,
borrowers and investors in more
efficient ways. Financial derivatives for
market and credit risk, asset-backed
securities with customized cash flow
features, specialized financial conduits
that manage pools of assets and other
types of structured finance transactions
serve important business purposes, such
as diversifying risks, allocating cash
flows, and reducing cost of capital. As
a result, structured finance transactions
now are an essential part of U.S. and
international capital markets. Financial

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

institutions have played and continue to
play an active and important role in the
development of structured finance
products and markets, including the
market for the more complex variations
of structured finance products.
When a financial institution
participates in a complex structured
finance transaction (‘‘CSFT’’), it bears
the usual market, credit, and operational
risks associated with the transaction. In
some circumstances, a financial
institution also may face heightened
legal or reputational risks due to its
involvement in a CSFT. For example, in
some circumstances, a financial
institution may face heightened legal or
reputational risk if a customer’s
regulatory, tax or accounting treatment
for a CSFT, or disclosures to investors
concerning the CSFT in the customer’s
public filings or financial statements, do
not comply with applicable laws,
regulations or accounting principles.
Indeed, in some instances, CSFTs have
been used to misrepresent a customer’s
financial condition to investors,
regulatory authorities and others. In
these situations, investors have been
harmed, and financial institutions have
incurred significant legal and
reputational exposure. In addition to
legal risk, reputational risk poses a
significant threat to financial
institutions because the nature of their
business requires them to maintain the
confidence of customers, creditors and
the general marketplace.
The Office of the Comptroller of the
Currency, the Office of Thrift
Supervision, the Board of Governors of
the Federal Reserve System, the Federal
Deposit Insurance Corporation, and the
Securities and Exchange Commission
(the ‘‘Agencies’’) have long expected
financial institutions to develop and
maintain robust control infrastructures
that enable them to identify, evaluate
and address the risks associated with
their business activities. Financial
institutions also must conduct their
activities in accordance with applicable
statutes and regulations.
II. Scope and Purpose of Statement
The Agencies are issuing this
Statement to describe the types of risk
management principles that we believe
may help a financial institution to
identify CSFTs that may pose
heightened legal or reputational risks to
the institution (‘‘elevated risk CSFTs’’)
and to evaluate, manage and address
these risks within the institution’s
internal control framework.12
12 As used in this Statement, the term ‘‘financial
institution’’ or ‘‘institution’’ refers to national banks
in the case of the Office of the Comptroller of the

PO 00000

Frm 00069

Fmt 4703

Sfmt 4703

1377

Structured finance transactions
encompass a broad array of products
with varying levels of complexity. Most
structured finance transactions, such as
standard public mortgage-backed
securities transactions, public
securitizations of retail credit cards,
asset-backed commercial paper conduit
transactions, and hedging-type
transactions involving ‘‘plain vanilla’’
derivatives and collateralized loan
obligations, are familiar to participants
in the financial markets, and these
vehicles have a well-established track
record. These transactions typically
would not be considered CSFTs for the
purpose of this Statement.
Because this Statement focuses on
sound practices related to CSFTs that
may create heightened legal or
reputational risks—transactions that
typically are conducted by a limited
number of large financial institutions—
it will not affect or apply to the vast
majority of financial institutions,
including most small institutions. As in
all cases, a financial institution should
tailor its internal controls so that they
are appropriate in light of the nature,
scope, complexity and risks of its
activities. Thus, for example, an
institution that is actively involved in
structuring and offering CSFTs that may
create heightened legal or reputational
risk for the institution should have a
more formalized and detailed control
framework than an institution that
participates in these types of
transactions less frequently. The
internal controls and procedures
discussed in this Statement are not all
inclusive, and, in appropriate
circumstances, an institution may find
that other controls, policies, or
procedures are appropriate in light of its
particular CSFT activities.
Because many of the core elements of
an effective control infrastructure are
the same regardless of the business line
involved, this Statement draws heavily
on controls and procedures that the
Agencies previously have found to be
effective in assisting a financial
institution to manage and control risks
and identifies ways in which these
controls and procedures can be
Currency; federal and state savings associations and
savings and loan holding companies in the case of
the Office of Thrift Supervision; state member
banks and bank holding companies (other than
foreign banking organizations) in the case of the
Federal Reserve Board; state nonmember banks in
the case of the Federal Deposit Insurance
Corporation; and registered broker-dealers and
investment advisers in the case of the Securities
and Exchange Commission. The U.S. branches and
agencies of foreign banks supervised by the Office
of the Comptroller, the Federal Reserve Board and
the Federal Deposit Insurance Corporation also are
considered to be financial institutions for purposes
of this Statement.

E:\FR\FM\11JAN1.SGM

11JAN1

1378

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

effectively applied to elevated risk
CSFTs. Although this Statement
highlights some of the most significant
risks associated with elevated risk
CSFTs, it is not intended to present a
full exposition of all risks associated
with these transactions. Financial
institutions are encouraged to refer to
other supervisory guidance prepared by
the Agencies for further information
concerning market, credit, operational,
legal and reputational risks as well as
internal audit and other appropriate
internal controls.
This Statement does not create any
private rights of action, and does not
alter or expand the legal duties and
obligations that a financial institution
may have to a customer, its shareholders
or other third parties under applicable
law. At the same time, adherence to the
principles discussed in this Statement
would not necessarily insulate a
financial institution from regulatory
action or any liability the institution
may have to third parties under
applicable law.

cprice-sewell on PROD1PC66 with NOTICES

III. Identification and Review of
Elevated Risk Complex Structured
Finance Transactions
A financial institution that engages in
CSFTs should maintain a set of formal,
written, firm-wide policies and
procedures that are designed to allow
the institution to identify, evaluate,
assess, document, and control the full
range of credit, market, operational,
legal and reputational risks associated
with these transactions. These policies
may be developed specifically for
CSFTs, or included in the set of broader
policies governing the institution
generally. A financial institution
operating in foreign jurisdictions may
tailor its policies and procedures as
appropriate to account for, and comply
with, the applicable laws, regulations
and standards of those jurisdictions.13
A financial institution’s policies and
procedures should establish a clear
framework for the review and approval
of individual CSFTs. These policies and
procedures should set forth the
responsibilities of the personnel
involved in the origination, structuring,
trading, review, approval,
documentation, verification, and
execution of CSFTs. Financial
institutions may find it helpful to
13 In the case of U.S. branches and agencies of
foreign banks, these policies, including
management, review and approval requirements,
should be coordinated with the foreign bank’s
group-wide policies developed in accordance with
the rules of the foreign bank’s home country
supervisor and should be consistent with the
foreign bank’s overall corporate and management
structure as well as its framework for risk
management and internal controls.

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

incorporate the review of new CSFTs
into their existing new product policies.
In this regard, a financial institution
should define what constitutes a ‘‘new’’
complex structured finance product and
establish a control process for the
approval of such new products. In
determining whether a CSFT is new, a
financial institution may consider a
variety of factors, including whether it
contains structural or pricing variations
from existing products, whether the
product is targeted at a new class of
customers, whether it is designed to
address a new need of customers,
whether it raises significant new legal,
compliance or regulatory issues, and
whether it or the manner in which it
would be offered would materially
deviate from standard market practices.
An institution’s policies should require
new complex structured finance
products to receive the approval of all
relevant control areas that are
independent of the profit center before
the product is offered to customers.
A. Identifying Elevated Risk CSFTs
As part of its transaction and new
product approval controls, a financial
institution should establish and
maintain policies, procedures and
systems to identify elevated risk CSFTs.
Because of the potential risks they
present to the institution, transactions
or new products identified as elevated
risk CSFTs should be subject to
heightened reviews during the
institution’s transaction or new product
approval processes. Examples of
transactions that an institution may
determine warrant this additional
scrutiny are those that (either
individually or collectively) appear to
the institution during the ordinary
course of its transaction approval or
new product approval process to:
• Lack economic substance or
business purpose;
• Be designed or used primarily for
questionable accounting, regulatory, or
tax objectives, particularly when the
transactions are executed at year end or
at the end of a reporting period for the
customer;
• Raise concerns that the client will
report or disclose the transaction in its
public filings or financial statements in
a manner that is materially misleading
or inconsistent with the substance of the
transaction or applicable regulatory or
accounting requirements;
• Involve circular transfers of risk
(either between the financial institution
and the customer or between the
customer and other related parties) that
lack economic substance or business
purpose;

PO 00000

Frm 00070

Fmt 4703

Sfmt 4703

• Involve oral or undocumented
agreements that, when taken into
account, would have a material impact
on the regulatory, tax, or accounting
treatment of the related transaction, or
the client’s disclosure obligations; 14
• Have material economic terms that
are inconsistent with market norms
(e.g., deep ‘‘in the money’’ options or
historic rate rollovers); or
• Provide the financial institution
with compensation that appears
substantially disproportionate to the
services provided or investment made
by the financial institution or to the
credit, market or operational risk
assumed by the institution.
The examples listed previously are
provided for illustrative purposes only,
and the policies and procedures
established by financial institutions may
differ in how they seek to identify
elevated risk CSFTs. The goal of each
institution’s policies and procedures,
however, should remain the same—to
identify those CSFTs that warrant
additional scrutiny in the transaction or
new product approval process due to
concerns regarding legal or reputational
risks.
Financial institutions that structure or
market, act as an advisor to a customer
regarding, or otherwise play a
substantial role in a transaction may
have more information concerning the
customer’s business purpose for the
transaction and any special accounting,
tax or financial disclosure issues raised
by the transaction than institutions that
play a more limited role. Thus, the
ability of a financial institution to
identify the risks associated with an
elevated risk CSFT may differ
depending on its role.
B. Due Diligence, Approval and
Documentation Process for Elevated
Risk CSFTs
Having developed a process to
identify elevated risk CSFTs, a financial
institution should implement policies
and procedures to conduct a heightened
level of due diligence for these
transactions. The financial institution
should design these policies and
procedures to allow personnel at an
appropriate level to understand and
evaluate the potential legal or
reputational risks presented by the
transaction to the institution and to
manage and address any heightened
14 This item is not intended to include traditional,
non-binding ‘‘comfort’’ letters or assurances
provided to financial institutions in the loan
process where, for example, the parent of a loan
customer states that the customer states that the
customer (i.e., the parent’s subsidiary) is an integral
and important part of the parent’s operations.

E:\FR\FM\11JAN1.SGM

11JAN1

cprice-sewell on PROD1PC66 with NOTICES

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices
legal or reputational risks ultimately
found to exist with the transaction.
Due Diligence. If a CSFT is identified
as an elevated risk CSFT, the institution
should carefully evaluate and take
appropriate steps to address the risks
presented by the transaction with a
particular focus on those issues
identified as potentially creating
heightened levels of legal or
reputational risk for the institution. In
general, a financial institution should
conduct the level and amount of due
diligence for an elevated risk CSFT that
is commensurate with the level of risks
identified. A financial institution that
structures or markets an elevated risk
CSFT to a customer, or that acts as an
advisor to a customer or investors
concerning an elevated risk CSFT, may
have additional responsibilities under
the federal securities laws, the Internal
Revenue Code, state fiduciary laws or
other laws or regulations and, thus, may
have greater legal and reputational risk
exposure with respect to an elevated
risk CSFT than a financial institution
that acts only as a counterparty for the
transaction. Accordingly, a financial
institution may need to exercise a
higher degree of care in conducting its
due diligence when the institution
structures or markets an elevated risk
CSFT or acts as an advisor concerning
such a transaction than when the
institution plays a more limited role in
the transaction.
To appropriately understand and
evaluate the potential legal and
reputational risks associated with an
elevated risk CSFT that a financial
institution has identified, the institution
may find it useful or necessary to obtain
additional information from the
customer or to obtain specialized advice
from qualified in-house or outside
accounting, tax, legal, or other
professionals. As with any transaction,
an institution should obtain satisfactory
responses to its material questions and
concerns prior to consummation of a
transaction.15
In conducting its due diligence for an
elevated risk CSFT, a financial
institution should independently
analyze the potential risks to the
institution from both the transaction
and the institution’s overall relationship
with the customer. Institutions should
not conclude that a transaction
identified as being an elevated risk
CSFT involves minimal or manageable
risks solely because another financial
institution will participate in the
15 Of course, financial institutions also should
ensure that their own accounting for transactions
complies with applicable accounting standards,
consistently applied.

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

transaction or because of the size or
sophistication of the customer or
counterparty. Moreover, a financial
institution should carefully consider
whether it would be appropriate to rely
on opinions or analyses prepared by or
for the customer concerning any
significant accounting, tax or legal
issues associated with an elevated risk
CSFT.
Approval Process. A financial
institution’s policies and procedures
should provide that CSFTs identified as
having elevated legal or reputational
risk are reviewed and approved by
appropriate levels of control and
management personnel. The designated
approval process for such CSFTs should
include representatives from the
relevant business line(s) and/or client
management, as well as from
appropriate control areas that are
independent of the business line(s)
involved in the transaction. The
personnel responsible for approving an
elevated risk CSFT on behalf of a
financial institution should have
sufficient experience, training and
stature within the organization to
evaluate the legal and reputational risks,
as well as the credit, market and
operational risks to the institution.
The institution’s control framework
should have procedures to deliver the
necessary or appropriate information to
the personnel responsible for reviewing
or approving an elevated risk CSFT to
allow them to properly perform their
duties. Such information may include,
for example, the material terms of the
transaction, a summary of the
institution’s relationship with the
customer, and a discussion of the
significant legal, reputational, credit,
market and operational risks presented
by the transaction.
Some institutions have established a
senior management committee that is
designed to involve experienced
business executives and senior
representatives from all of the relevant
control functions within the financial
institution (including such groups as
independent risk management, tax,
accounting, policy, legal, compliance,
and financial control) in the oversight
and approval of those elevated risk
CSFTs that are identified by the
institution’s personnel as requiring
senior management review and approval
due to the potential risks associated
with the transactions. While this type of
management committee may not be
appropriate for all financial institutions,
a financial institution should establish
processes that assist the institution in
consistently managing the review and

PO 00000

Frm 00071

Fmt 4703

Sfmt 4703

1379

approval of elevated risk CSFTs on a
firm-wide basis.16
If, after evaluating an elevated risk
CSFT, the financial institution
determines that its participation in the
CSFT would create significant legal or
reputational risks for the institution, the
institution should take appropriate steps
to address those risks. Such actions may
include declining to participate in the
transaction, or conditioning its
participation upon the receipt of
representations or assurances from the
customer that reasonably address the
heightened legal or reputational risks
presented by the transaction. Any
representations or assurances provided
by a customer should be obtained before
a transaction is executed and be
received from, or approved by, an
appropriate level of the customer’s
management. A financial institution
should decline to participate in an
elevated risk CSFT if, after conducting
appropriate due diligence and taking
appropriate steps to address the risks
from the transaction, the institution
determines that the transaction presents
unacceptable risk to the institution or
would result in a violation of applicable
laws, regulations or accounting
principles.
Documentation. The documentation
that financial institutions use to support
CSFTs is often highly customized for
individual transactions and negotiated
with the customer. Careful generation,
collection and retention of documents
associated with elevated risk CSFTs are
important control mechanisms that may
help an institution monitor and manage
the legal, reputational, operational,
market, and credit risks associated with
the transactions. In addition, sound
documentation practices may help
reduce unwarranted exposure to the
financial institution’s reputation.
A financial institution should create
and collect sufficient documentation to
allow the institution to:
• Document the material terms of the
transaction;
• Enforce the material obligations of
the counterparties;
• Confirm that the institution has
provided the customer any disclosures
concerning the transaction that the
institution is otherwise required to
provide; and
• Verify that the institution’s policies
and procedures are being followed and
allow the internal audit function to
16 The control processes that a financial
institution establishes for CSFTs should take
account of, and be consistent with, any
informational barriers established by the institution
to manage potential conflicts of interest, insider
trading or other concerns.

E:\FR\FM\11JAN1.SGM

11JAN1

1380

Federal Register / Vol. 72, No. 7 / Thursday, January 11, 2007 / Notices

monitor compliance with those policies
and procedures.
When an institution’s policies and
procedures require an elevated risk
CSFT to be submitted for approval to
senior management, the institution
should maintain the transaction-related
documentation provided to senior
management as well as other
documentation, such as minutes of the
relevant senior management committee,
that reflect senior management’s
approval (or disapproval) of the
transaction, any conditions imposed by
senior management, and the factors
considered in taking such action. The
institution should retain documents
created for elevated risk CSFTs in
accordance with its record retention
policies and procedures as well as
applicable statutes and regulations.

cprice-sewell on PROD1PC66 with NOTICES

C. Other Risk Management Principles
for Elevated Risk CSFTs
General Business Ethics. The board
and senior management of a financial
institution also should establish a ‘‘tone
at the top’’ through both actions and
formalized policies that sends a strong
message throughout the financial
institution about the importance of
compliance with the law and overall
good business ethics. The board and
senior management should strive to
create a firm-wide corporate culture that
is sensitive to ethical or legal issues as
well as the potential risks to the
financial institution that may arise from
unethical or illegal behavior. This kind
of culture coupled with appropriate
procedures should reinforce businessline ownership of risk identification,
and encourage personnel to move
ethical or legal concerns regarding
elevated risk CSFTs to appropriate
levels of management. In appropriate
circumstances, financial institutions
may also need to consider implementing
mechanisms to protect personnel by
permitting the confidential disclosure of
concerns.17 As in other areas of
financial institution management,
compensation and incentive plans
should be structured, in the context of
elevated risk CSFTs, so that they
provide personnel with appropriate
incentives to have due regard for the
legal, ethical and reputational risk
interests of the institution.
Reporting. A financial institution’s
policies and procedures should provide
17 The agencies note that the Sarbanes-Oxley Act
of 2002 requires companies listed on a national
securities exchange or inter-dealer quotation system
of a national securities association to establish
procedures that enable employees to submit
concerns regarding questionable accounting or
auditing matters on a confidential, anonymous
basis. See 15 U.S.C. 78j–1(m).

VerDate Aug<31>2005

15:52 Jan 10, 2007

Jkt 211001

for the appropriate levels of
management and the board of directors
to receive sufficient information and
reports concerning the institution’s
elevated risk CSFTs to perform their
oversight functions.
Monitoring Compliance with Internal
Policies and Procedures. The events of
recent years evidence the need for an
effective oversight and review program
for elevated risk CSFTs. A financial
institution’s program should provide for
periodic independent reviews of its
CSFT activities to verify and monitor
that its policies and controls relating to
elevated risk CSFTs are being
implemented effectively and that
elevated risk CSFTs are accurately
identified and received proper
approvals. These independent reviews
should be performed by appropriately
qualified audit, compliance or other
personnel in a manner consistent with
the institution’s overall framework for
compliance monitoring, which should
include consideration of issues such as
the independence of reviewing
personnel from the business line. Such
monitoring may include more frequent
assessments of the risk arising from
elevated risk CSFTs, both individually
and within the context of the overall
customer relationship, and the results of
this monitoring should be provided to
an appropriate level of management in
the financial institution.
Audit. The internal audit department
of any financial institution is integral to
its defense against fraud, unauthorized
risk taking and damage to the financial
institution’s reputation. The internal
audit department of a financial
institution should regularly audit the
financial institution’s adherence to its
own control procedures relating to
elevated risk CSFTs, and further assess
the adequacy of its policies and
procedures related to elevated risk
CSFTs. Internal audit should
periodically validate that business lines
and individual employees are
complying with the financial
institution’s standards for elevated risk
CSFTs and appropriately identifying
any exceptions. This validation should
include transaction testing for elevated
risk CSFTs.
Training. An institution should
identify relevant personnel who may
need specialized training regarding
CSFTs to be able to effectively perform
their oversight and review
responsibilities. Appropriate training on
the financial institution’s policies and
procedures for handling elevated risk
CSFTs is critical. Financial institution
personnel involved in CSFTs should be
familiar with the institution’s policies
and procedures concerning elevated risk

PO 00000

Frm 00072

Fmt 4703

Sfmt 4703

CSFTs, including the processes
established by the institution for
identification and approval of elevated
risk CSFTs and new complex structured
finance products and for the elevation of
concerns regarding transactions or
products to appropriate levels of
management. Financial institution
personnel involved in CSFTs should be
trained to identify and properly handle
elevated risk CSFTs that may result in
a violation of law.
IV. Conclusion
Structured finance products have
become an essential and important part
of the U.S. and international capital
markets, and financial institutions have
played an important role in the
development of structured finance
markets. In some instances, however,
CSFTs have been used to misrepresent
a customer’s financial condition to
investors and others, and financial
institutions involved in these
transactions have sustained significant
legal and reputational harm. In light of
the potential legal and reputational risks
associated with CSFTs, a financial
institution should have effective risk
management and internal control
systems that are designed to allow the
institution to identify elevated risk
CSFTs, to evaluate, manage and address
the risks arising from such transactions,
and to conduct those activities in
compliance with applicable law.
Dated: December 12, 2006.
John C. Dugan,
Comptroller of the Currency.
Dated: December 21, 2006.
By the Office of Thrift Supervision.
Scott M. Polakoff,
Deputy Director & Chief Operating Officer.
By order of the Board of Governors of the
Federal Reserve System, December 20, 2006.
Jennifer J. Johnson,
Secretary of the Board.
Dated at Washington, DC, the 22nd day of
December, 2006.
By order of the Federal Deposit Insurance
Corporation.
Robert E. Feldman,
Executive Secretary.
Dated: January 5, 2007.
By the Securities and Exchange
Commission.
Nancy M. Morris,
Secretary.
[FR Doc. 07–55 Filed 1–10–07; 8:45 am]
BILLING CODE 4810–33–P; 6720–01–P; 6210–01–P;
6714–01–P; 8011–01–P

E:\FR\FM\11JAN1.SGM

11JAN1