[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Proposed Rules]
[Pages 72741-72751]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29277]


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FEDERAL RESERVE SYSTEM

12 CFR Part 225

[Regulation Y; Docket No. R-1397]
RIN AD 7100-58


Conformance Period for Entities Engaged in Prohibited Proprietary 
Trading or Private Equity Fund or Hedge Fund Activities

AGENCY: Board of Governors of the Federal Reserve System (``Board'').

ACTION: Proposed rule; request for public comment.

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SUMMARY: The Board is requesting comment on a proposed rule that would 
implement the conformance period during which banking entities and 
nonbank financial companies supervised by the Board must bring their 
activities and investments into compliance with the prohibitions and 
restrictions on proprietary trading and relationships with hedge funds 
and private equity funds imposed by section 619 of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act (``Dodd-Frank Act''). Section 
619 is commonly referred to as the ``Volcker Rule.''

DATES: Comments: Comments should be received on or before January 10, 
2011.

ADDRESSES: You may submit comments, identified by Docket No. R-1397 and 
RIN No. AD 7100-58, 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 R-1397 and RIN AD 7100-58 in the subject line of the message.
     Fax: (202) 452-3819 or (202) 452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., 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, 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 form 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.

FOR FURTHER INFORMATION CONTACT: Brian P. Knestout, Senior Attorney, 
(202) 452-2249, Jeremy R. Newell, Senior Attorney, (202) 452-3239, 
Christopher M. Paridon, Senior Attorney, (202) 452-3274, or Kieran J. 
Fallon, Associate General Counsel, (202) 452-5270, Legal Division; 
David K. Lynch, Division of Banking Supervision and Regulation, Board 
of Governors of the Federal Reserve System, 20th Street and 
Constitution Avenue, NW., Washington, DC 20551. Users of 
Telecommunication Device for Deaf (TDD) only, call (202) 263-4869.

SUPPLEMENTARY INFORMATION:

I. Background

    The Dodd-Frank Act was enacted on July 21, 2010.\1\ Section 619 of 
the Dodd-Frank Act adds a new section 13 to the Bank Holding Company 
Act of 1956 (``BHC Act'') (to be codified at 12 U.S.C. 1851) that 
generally prohibits banking entities \2\ from engaging in proprietary 
trading or from investing in, sponsoring, or having certain 
relationships with a hedge fund or private equity fund.\3\ The new 
section 13 of the BHC Act also provides for nonbank financial companies 
supervised by the Board that engage in such activities or have such 
investments to be subject to additional capital requirements, 
quantitative limits, or other restrictions.\4\ These prohibitions and 
other provisions of section 619 are commonly known, and referred to 
herein, as the ``Volcker Rule.''
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    \1\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law No. 111-203, 124 Stat. 1376 (2010).
    \2\ The term ``banking entity'' is defined in section 13(h)(1) 
of the BHC Act, as amended by section 619 of the Dodd-Frank Act. See 
12 U.S.C. 1851(h)(1). The term means any insured depository 
institution (other than certain limited purpose trust institutions), 
any company that controls an insured depository institution, any 
company that is treated as a bank holding company for purposes of 
section 8 of the International Banking Act of 1978 (12 U.S.C. 3106), 
and any affiliate or subsidiary of any of the foregoing.
    \3\ The Volcker Rule defines the terms ``hedge fund'' and 
``private equity fund'' as an issuer that would be an investment 
company, as defined under the Investment Company Act of 1940 (15 
U.S.C. 80a-1 et seq.), but for section 3(c)(1) or 3(c)(7) of that 
Act, or any such similar funds as the appropriate Federal banking 
agencies, the Securities and Exchange Commission (``SEC''), and the 
Commodity Futures Trading Commission (``CFTC'') may, by rule, 
determine should be treated as a hedge fund or private equity fund. 
See 12 U.S.C. 1851(h)(2).
    \4\ See 12 U.S.C. 1851(a)(2) and (f)(4). A ``nonbank financial 
company supervised by the Board'' is a nonbank financial company or 
other company that has been designated by the Financial Stability 
Oversight Council (``FSOC'') under section 113 of the Dodd-Frank Act 
as requiring supervision and regulation by the Board on a 
consolidated basis because of the danger such company may pose to 
the financial stability of the United States.
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    Specifically, the Volcker Rule prohibits banking entities from 
engaging in proprietary trading (as defined by the Volcker Rule) or 
from acquiring or retaining any ownership interest in, or sponsoring, a 
hedge fund or private equity fund.\5\ The Volcker Rule, however, also 
expressly provides certain exceptions from these prohibitions, 
including, among others, exceptions that allow a banking entity, 
subject to certain terms, conditions, and restrictions, to: (i) Trade 
in obligations of the United States or any agency thereof, obligations 
issued by the Government National Mortgage Association, the Federal 
Home Loan Mortgage Corporation, a Federal Home Loan Bank, the Federal 
Agricultural Mortgage Corporation, or a Farm Credit System institution 
chartered under and subject to the provisions of the Farm Credit Act of 
1971 (12 U.S.C. 2001 et seq.), and obligations of any State or of any 
political subdivision thereof; \6\ (ii) purchase and sell securities 
and other instruments in connection with underwriting or market-making 
related activities, to the extent that any such activities are designed 
not to exceed the reasonable near term demands of clients, customers, 
or counterparties; \7\ (iii) engage in risk-mitigating hedging 
activities in connection with and related to individual or aggregated 
positions, contracts, or other holdings that are designed to reduce the 
specific risks to the banking entity in connection with and related to 
such positions, contracts, or other holdings; \8\ and (iv) purchase, 
sell, acquire, or dispose of securities and other instruments on behalf 
of customers.\9\ Additionally, the Volcker Rule permits the appropriate 
agency or agencies, by rule, to grant other exceptions from the 
prohibitions on proprietary trading and investing in, or

[[Page 72742]]

sponsoring, a hedge fund or private equity fund if the agency(ies) 
determine that the exception would promote and protect the safety and 
soundness of the banking entity and the financial stability of the 
United States.\10\ However, no transaction, class of transactions, or 
activity may be permitted if the relevant agency(ies) determine that 
the transaction, class of transactions, or activity would: (i) Result 
in a material conflict of interest; (ii) result in a material exposure 
of the banking entity to high-risk assets or high-risk trading 
strategies; (iii) pose a threat to the safety and soundness of the 
banking entity; or (iv) pose a threat to the financial stability of the 
United States.\11\
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    \5\ 12 U.S.C. 1851(a)(1)(A) and (B).
    \6\ Id. at Sec.  1851(d)(1)(A).
    \7\ Id. at Sec.  1851(d)(1)(B).
    \8\ Id. at Sec.  1851(d)(1)(C).
    \9\ Id. at Sec.  1851(d)(1)(D).
    \10\ Id. at Sec.  1851(d)(1)(J).
    \11\ See id. at Sec.  1851(d)(2).
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    The Volcker Rule separately prohibits a banking entity that serves, 
directly or indirectly, as the investment manager, investment adviser, 
or sponsor to a hedge fund or private equity fund, and any affiliate of 
the banking entity, from entering into any transaction with the fund, 
or any other hedge fund or private equity fund controlled by such fund, 
that would be a ``covered transaction'' as defined in section 23A of 
the Federal Reserve Act,\12\ as if such banking entity or affiliate 
were a member bank and the hedge fund or private equity fund were an 
affiliate thereof.\13\ There are, however, certain exceptions to this 
prohibition.\14\
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    \12\ See 12 U.S.C. 371c.
    \13\ 12 U.S.C. 1851(f)(1).
    \14\ See id. at Sec.  1851(f)(3).
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    The Volcker Rule does not prohibit nonbank financial companies 
supervised by the Board from engaging in proprietary trading, or from 
having the types of investments in or relationships with hedge funds or 
private equity funds that banking entities are prohibited or restricted 
from having under the Volcker Rule. However, the Volcker Rule provides 
for the Board or other appropriate agency to impose additional capital 
charges, quantitative limits, or other restrictions on nonbank 
financial companies supervised by the Board or their subsidiaries that 
are engaged in such activities or maintain such relationships.\15\
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    \15\ See id. at Sec.  1851(a)(2), (d)(4).
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    The Board and several other agencies have responsibilities with 
respect to the Volcker Rule. The FSOC is required to conduct a study 
and make recommendations by January 21, 2011, on the implementation of 
the Volcker Rule.\16\ As a general matter, authority for developing and 
adopting regulations to implement the prohibitions and restrictions of 
the Volcker Rule is divided between the Board, the Office of the 
Comptroller of the Currency (``OCC''), the Federal Deposit Insurance 
Corporation (``FDIC''), the CFTC and the SEC in the manner provided in 
section 13(b)(2) of the BHC Act.\17\ The Board and these other agencies 
are directed to adopt implementing rules not later than 9 months after 
the FSOC completes its study.\18\ The restrictions and prohibitions of 
the Volcker Rule become effective 12 months after issuance of final 
rules by the agencies, or July 21, 2012, whichever is earlier.
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    \16\ See id. Sec.  1851(b)(1). The FSOC recently requested 
public comment on a number of issues to assist the FSOC in 
conducting its study. See 75 FR 61,758 (Oct. 6, 2010).
    \17\ See 12 U.S.C. 1851(b)(2). The Secretary of the Treasury, as 
Chairperson of the FSOC, is responsible for coordinating the 
agencies' rulemakings under the Volcker Rule. See id. at Sec.  
1851(b)(2)(B)(ii).
    \18\ See id. at Sec.  1851(b)(2)(A).
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    The Board, however, is solely charged with adopting rules to 
implement the provisions of the Volcker Rule that provide a banking 
entity or a nonbank financial company supervised by the Board a period 
of time after the effective date of the Volcker Rule to bring the 
activities, investments, and relationships of the banking entity or 
company commenced, acquired, or entered into before the Volcker Rule's 
effective date into compliance with the Volcker Rule and the agencies' 
implementing regulations.\19\ This period is intended to give markets 
and firms an opportunity to adjust to the Volcker Rule.\20\ The Dodd-
Frank Act requires that the Board issue rules to implement this 
conformance period no later than January 21, 2011.
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    \19\ See id. at Sec.  1851(c)(6).
    \20\ See 156 Cong. Rec. S5898 (daily ed. July 15, 2010) 
(Statement of Senator Merkley).
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II. Overview of Proposed Rule

    In accordance with the mandate of the Dodd-Frank Act, the Board is 
requesting comment on a proposed rule that would implement the 
conformance period provisions of the Volcker Rule. The proposed rule 
does not address other aspects of the Volcker Rule which, as noted 
above, are subject to separate rulemaking requirements under section 
13(b)(2) of the BHC Act.\21\ Because the proposed rule is not intended 
to address the definitional and other issues that are appropriately the 
subject of that coordinated, interagency rulemaking process, the 
proposed rule incorporates without modification the definitions of 
``banking entity,'' ``hedge fund,'' and ``private equity fund'' 
contained in the Dodd-Frank Act.\22\ In addition, the Board has 
structured the proposed rule to address only those matters that are 
essential to implementation of the conformance period provisions of the 
Volcker Rule.
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    \21\ See id. at Sec.  1851(b)(2).
    \22\ Proposed Rule 225.180(a)-(c).
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    In developing this proposal, the Board considered, among other 
factors, the language and legislative history of the Dodd-Frank Act and 
the Volcker Rule, and the Board's experience in supervising and 
regulating banking entities' trading activities and investments in, or 
relationships with, hedge funds and private equity funds. The Board 
also consulted with the Department of the Treasury, the OCC, the FDIC, 
the SEC, and the CFTC. The Board invites public comment on all aspects 
of its proposal implementing the conformance period.

A. General Conformance Period

    As noted above, the prohibitions and restrictions of the Volcker 
Rule do not take effect until the earlier of July 21, 2012, or 12 
months after the issuance of final regulations by the rulewriting 
agencies under section 13(b)(2) of the BHC Act. However, in order to 
allow the markets and firms to adjust to these prohibitions and 
restrictions, the Volcker Rule also, by its terms and without any 
action by the Board, provides banking entities and nonbank financial 
companies supervised by the Board an additional conformance period 
during which the entity or company can wind down, sell, or otherwise 
conform its activities, investments, and relationships to the 
requirements of the Volcker Rule. Under the statute, this conformance 
period generally extends through the date that is 2 years after the 
date on which the prohibitions become effective or, in the case of a 
nonbank financial company supervised by the Board, 2 years after the 
company is designated by the FSOC for supervision by the Board, if that 
period is later.
    Section 225.181(a) of the proposed rule implements these 
provisions. In addition, section 225.181(a)(2) of the proposed rule 
clarifies how the conformance period applies to a company that first 
becomes a banking entity after July 21, 2010 (the date of enactment of 
the Dodd-Frank Act), because, for example, the company acquires or 
becomes affiliated with an insured depository institution for the first 
time. In these circumstances, the restrictions and prohibitions of the 
Volcker Rule would first become effective with respect to the company 
only at the time it became a banking entity. Accordingly, the proposed 
rule

[[Page 72743]]

provides that such a company generally must bring its activities, 
investments, and relationships into compliance with the requirements of 
the Volcker Rule before the later of: (i) The date the Volcker Rule's 
prohibitions would otherwise become effective with respect to the 
company under section 225.181(a)(1) of the Proposed Rule; or (ii) 2 
years after the date on which the company first becomes a banking 
entity. Thus, for example, a company that first becomes a banking 
entity on January 1, 2015, would have until January 1, 2017, to bring 
its activities and investments into conformance with the requirements 
of section 13 of the BHC Act and its implementing regulations. This 
proposal provides comparable treatment to ``new'' banking entities and 
nonbank financial companies supervised by the Board, and is consistent 
with the manner in which newly established bank holding companies are 
treated for purposes of the nonbanking restrictions under section 4 of 
the BHC Act.\23\
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    \23\ See 12 U.S.C. 1843(a)(2).
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B. Extension of Conformance Period

    The Volcker Rule permits the Board, by rule or by order, to extend 
the generally available two-year conformance period by up to three 
additional one-year periods, for an aggregate conformance period of 5 
years.\24\ Section 225.181(a)(3) of the proposed rule implements this 
authority. In order to grant any extension, the Board must determine 
that the extension is consistent with the purposes of the Volcker Rule 
and would not be detrimental to the public interest. The proposed rule 
requires that any banking entity that seeks a one-year extension of the 
conformance period under this authority submit a request to the Board. 
Any such request for an extension must: (1) Be submitted in writing to 
the Board at least 90 days prior to the expiration of the applicable 
time period; (2) provide the reasons why the banking entity believes 
the extension should be granted; and (3) provide a detailed explanation 
of the banking entity's plan for divesting or conforming the activity 
or investment(s).
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    \24\ 12 U.S.C. 1851(c)(2).
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    In addition, the proposed rule provides that any extension request 
by a banking entity must address each of the following matters (to the 
extent they are relevant): (i) Whether the activity or investment (A) 
involves or results in material conflicts of interest between the 
banking entity and its clients, customers or counterparties; (B) would 
result, directly or indirectly, in a material exposure by the banking 
entity to high-risk assets or high-risk trading strategies; (C) would 
pose a threat to the safety and soundness of the banking entity; or (D) 
would pose a threat to the financial stability of the United States; 
(ii) market conditions; (iii) the nature of the activity or investment; 
(iv) the date that the banking entity's contractual obligation to make 
or retain an investment in the fund was incurred and when it expires; 
(v) the contractual terms governing the banking entity's interest in 
the fund (if applicable); (vi) the degree of control held by the 
banking entity over investment decisions of the fund (if applicable); 
(vii) the types of assets held by the fund (if applicable); (viii) the 
date on which the fund is expected to wind up its activities and 
liquidate or its investments may be redeemed or sold (if applicable); 
(ix) the total exposure of the banking entity to the activity or 
investment and the risks that disposing of, or maintaining, the 
investment or activity may pose to the banking entity or the financial 
stability of the United States; (x) the cost to the banking entity of 
disposing of the activity or investment within the applicable period; 
and (xi) any other factor that the Board believes appropriate. Under 
the proposal, the Board would consider requests for an extension in 
light of all relevant facts and circumstances, including the factors 
described above. These factors are not exclusive, and under the 
proposal, the Board retains the ability to consider other factors or 
considerations that it deems appropriate. The Board specifically 
requests comment on whether these factors are appropriate, certain 
factors should be removed, or any additional factors should be 
included.
    The proposed rule would allow the Board to impose conditions on any 
extension granted under the proposed rule if the Board determines such 
conditions are necessary or appropriate to protect the safety and 
soundness of banking entities or the financial stability of the United 
States, address material conflicts of interest or other unsound 
practices, or otherwise further the purposes of section 13 of the BHC 
Act and the proposed rules.\25\ In cases where the banking entity is 
primarily supervised by another Federal banking agency, the SEC, or the 
CFTC, the Board would consult with such agency both in connection with 
its review of the application and, if applicable, prior to imposing 
conditions in connection with the approval of any request by the 
banking entity for an extension of the conformance period under the 
proposed rule.
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    \25\ Nothing in the Volcker Rule or the proposed rule limits or 
otherwise affects the authority that the Board, the other Federal 
banking agencies, the SEC, or the CFTC may have under other 
provisions of law. In the case of the Board, these authorities 
include, but are not limited to, section 8 of the Federal Deposit 
Insurance Act and section 8 of the BHC Act. See 12 U.S.C. 1818, 
1847.
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C. Extended Transition Period for Illiquid Funds

    Section 619 of the Dodd-Frank Act includes a special provision to 
address the difficulty banking entities may experience in conforming 
investments in illiquid funds. This provision expressly permits a 
banking entity to request the Board's approval for an additional 
extension of up to 5 years in order to permit the banking entity to 
meet contractual commitments in place as of May 21, 2010, to a hedge 
fund or private equity fund that qualifies as an ``illiquid fund.'' 
Specifically, the statute provides that the Board may extend the period 
during which a banking entity may take or retain an ownership interest 
in, or otherwise provide additional capital to, an illiquid fund, but 
only if the extension is necessary to allow the banking entity to 
fulfill a contractual obligation that was in effect on May 1, 2010.\26\ 
Any extended transition period with respect to an illiquid fund may not 
exceed 5 years and may be in addition to the conformance period 
available under other provisions of the Volcker Rule.\27\ However, any 
extended transition period granted with respect to an illiquid fund, by 
statute, automatically terminates on the date during any such extension 
on which the banking entity is no longer under a contractual obligation 
to invest in, or provide capital to, the illiquid fund. The purpose of 
this extended transition or ``wind-down'' period for investments in an 
illiquid fund is to minimize disruption of existing investments in 
illiquid funds and permit banking entities to fulfill existing 
obligations to illiquid funds while still steadily moving banking 
entities toward conformance with the prohibitions and restrictions of 
the Volcker Rule.\28\
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    \26\ Id. at Sec.  1851(c)(3)(A).
    \27\ Id. at Sec.  1851(c)(3)(B).
    \28\ See 156 Cong. Rec. S5899 (daily ed. July 15, 2010) 
(statement of Sen. Merkley).
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    Section 225.181(b) of the proposed rule implements the statute's 
extended transition period for illiquid funds. As a general matter, to 
qualify for the statute's extended transition period a banking entity's 
investment in, or relationship with, a hedge fund or private equity 
fund must meet two sets of criteria. The first set of criteria

[[Page 72744]]

focuses on the nature, assets and investment strategy of the hedge fund 
or private equity fund itself. The second set of criteria focuses on 
the terms of the banking entity's investment in the hedge fund or 
private equity fund.
1. Fund-Focused Criteria
    As noted above, the extended transition period under section 
13(c)(3) of the BHC Act is available only with respect to investments 
made in an ``illiquid fund,'' and then only with respect to investments 
in or commitments to these funds made as of May 1, 2010. In accordance 
with the text of the Volcker Rule, the proposed rule defines an 
``illiquid fund'' to mean a hedge fund or private equity fund that: (i) 
As of May 1, 2010, was principally invested in illiquid assets, or was 
invested in, and contractually committed to principally invest in, 
illiquid assets; and (ii) makes all investments pursuant to, and 
consistent with, an investment strategy to principally invest in 
illiquid assets.\29\ In determining how to implement the definition of 
an illiquid fund, the Board considered, among other things, the terms 
of the statute, as well as information (including confidential 
supervisory information) concerning the terms of investments in hedge 
funds or private equity funds, the characteristics of liquid and 
illiquid assets, and the ability of a fund to divest assets held by the 
fund.
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    \29\ Proposed Rule 225.180(e).
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    The proposed rule defines several terms that are integral to the 
statute's definition of an illiquid fund, including the terms or 
phrases ``illiquid asset,'' ``principally invested'' in illiquid 
assets, ``contractually committed to principally invest'' in illiquid 
assets, and ``investment strategy to principally invest'' in illiquid 
assets.
    a. ``Illiquid Asset.''
    The proposed rule generally defines an ``illiquid asset'' as any 
asset that is not a liquid asset. In turn, ``liquid assets'' are 
defined to include:
     Cash or cash equivalents;
     An asset that is traded on a recognized, established 
exchange, trading facility or other market on which there exist 
independent, bona fide offers to buy and sell so that a price 
reasonably related to the last sales price or current bona fide 
competitive bid and offer quotations can be determined for the asset 
almost instantaneously;
     An asset for which there are bona fide, competitive bid 
and offer quotations in a recognized inter-dealer quotation system or 
similar system or for which multiple dealers furnish bona fide, 
competitive bid and offer quotations to other brokers and dealers on 
request;
     An asset the price of which is quoted routinely in a 
widely disseminated publication that is readily available to the 
general public or through an electronic service that provides 
indicative data from real-time financial networks;
     An asset with an initial term of one year or less and the 
payments on which at maturity may be settled, closed-out, or paid in 
cash or one or more other liquid assets described above; and
     Any other asset that the Board determines, based on all 
the facts and circumstances, is a liquid asset.\30\
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    \30\ Proposed Rule 225.180(h).
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    The standards contained in the second, third, and fourth standards 
above are based on existing standards in the Federal banking and 
securities laws that are designed to identify securities that are 
liquid and may be sold promptly at a price that is reasonably related 
to its fair value. Specifically, the second standard above is based in 
part on the SEC's definition of securities for which a ``ready market'' 
exists for purposes of the net capital rules applicable to broker-
dealers under the Securities Exchange Act of 1934 (``Exchange 
Act'').\31\ Similarly, the third standard above is based, in part, on 
the actions regularly taken by a ``qualified OTC market maker'' as 
defined in the SEC's Rule 3b-8, with respect to securities under the 
Exchange Act.\32\ The fourth standard above is based, in part, on the 
criteria used to identify whether a security or other asset is a 
``marketable security'' or a ``liquid asset'' for purposes of the 
Board's Regulation W governing transactions between member banks and 
their affiliates.\33\ In each instance, the proposal represents a 
modification of the standards to reflect the broader range of financial 
instruments (including derivatives) or other assets that may be held by 
a hedge fund or private equity fund and that should be considered 
``liquid'' if traded or quoted in the manner described. The Board has 
proposed using these standards (which are generally understood within 
the banking and financial services industries) to help promote ready 
and measurable compliance with the requirements of the Volcker Rule. 
These standards are designed to capture the wide range of instruments 
and assets (or their equivalents) that one actively or routinely trades 
on markets or trading facilities, as for which bid, offer or price 
quotations are widely available, and that, therefore, should be 
considered as liquid assets for purposes of the Volcker Rule's 
provision regarding illiquid funds. For example, these standards would 
treat as a liquid asset: (i) Equity and debt securities, derivatives, 
and commodity futures traded on a registered securities exchange, board 
of trade, alternative trading system, electronic trading platform or 
similar market that provides independent, bona fide offers to buy and 
sell; (ii) assets traded on an electronic inter-dealer quotation 
system, such as OTC Bulletin Board or the system maintained by PINK OTC 
Markets, Inc., as well as over-the-counter derivatives, debt securities 
(such as corporate bonds), and syndicated commercial loans for which 
active inter-dealer markets exist; and (iii) financial instruments for 
which indicative price data is supplied by an electronic service, such 
as Markit Group Limited.
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    \31\ See 15 CFR 240.15c3-1(c)(11)(i).
    \32\ See 15 CFR 240.3b-8(a).
    \33\ See 12 CFR 223.42(e) and (f)(5).
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    The fifth standard is designed to capture instruments with a 
relatively short-term duration and that can be monetized or converted 
at maturity into a liquid asset. The Board recognizes that there may be 
situations where other, non-enumerated assets may be liquid even though 
they are not included in the standards contained in sections 
225.181(h)(1)--(5) of the proposed rule. In order to address these 
situations, the Board has expressly retained the ability to determine 
that any other asset is a liquid asset, based on all the facts and 
circumstances.
    On the other hand, consistent with the purpose of the Volcker Rule, 
this proposed approach to defining illiquid assets should include as 
illiquid assets investments in portfolio companies, investments in real 
estate (other than those made through publicly traded REITs), venture 
capital investments, and investments in other hedge funds or private 
equity funds that both are not publicly traded and invest in illiquid 
assets. The proposed rule also provides that an asset--including a 
liquid asset such as a security--may be considered an ``illiquid 
asset'' if, because of statutory or regulatory restrictions applicable 
to the hedge fund, private equity fund or asset, the asset cannot be 
offered, sold, or otherwise transferred by the hedge fund or private 
equity fund to a person that is unaffiliated with the banking entity. 
This approach recognizes situations where, for example, a security held 
by a fund is subject to one or more statutory or regulatory 
restrictions under the Federal securities laws (such as under Rule 144A 
of the Securities Act of 1933

[[Page 72745]]

regarding private resales of securities to institutions) that 
temporarily prohibit the transferability or resale of the security.\34\ 
However, the proposed rule expressly provides that an asset may be 
considered an illiquid asset under this provision only for so long as 
and to the extent that the relevant statutory or regulatory restriction 
is effective.\35\ Once the relevant statutory or regulatory restriction 
is no longer applicable to the asset, hedge fund, or private equity 
fund, the asset would cease to be treated as an illiquid asset and 
would be a ``liquid asset'' if it met any of the standards contained in 
sections 225.181(g)(1)-(6) of the proposed rule.
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    \34\ See 15 CFR 230.144a.
    \35\ Proposed Rule 225.180(g)(2).
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    The Board is interested in receiving comments on the 
appropriateness of the definitions and standards mentioned above, as 
well as whether there are particular types of assets that should be 
defined, by rule, as liquid or illiquid. If so, what types of assets 
would these be?
    b. ``Principally invested.''
    The statute's fund-related criteria also require that the hedge 
fund or private equity fund either (1) have been principally invested 
in illiquid assets as of May 1, 2010, or (2) have been invested to some 
degree in illiquid assets and contractually committed to principally 
invest in illiquid assets as of such date. In addition, in either case, 
the fund must make all of its investments pursuant to, and consistent 
with, an investment strategy to principally invest in illiquid assets.
    Many types of hedge funds and private equity funds have investment 
strategies that focus almost exclusively on one type of illiquid 
assets, such as real estate or start-up companies (including new or 
emerging companies in the technology, life sciences, alternative 
energy, or ``clean tech'' areas).\36\ These types of hedge funds and 
private equity funds typically request capital contributions from their 
investors only when particular investment opportunities have been 
identified and hold only a small portion of their assets in cash or 
other liquid assets (other than during brief periods pending the 
investment of capital or the distribution of proceeds from the sale of 
an investment). By limiting the availability of the extended transition 
period to hedge funds or private equity funds that ``principally 
invest'' in and have an investment strategy to principally invest in 
illiquid assets, such as real estate, nonpublic portfolio companies, 
and venture capital opportunities, Congress appears to have structured 
the extended transition period for those types of funds that are 
clearly focused on, and invest substantially all of their capital in, 
illiquid assets.
---------------------------------------------------------------------------

    \36\ Accordingly, institutional investors, such as pension plans 
and endowments, that seek exposure to different types of assets 
typically invest in a range of different types of hedge funds or 
private equity funds to obtain diversification across asset classes.
---------------------------------------------------------------------------

    Accordingly, the proposed rule provides that a hedge fund or 
private equity fund will be considered to be ``principally invested'' 
in illiquid assets only if at least 75 percent of the fund's 
consolidated total assets are, or are expected to be, comprised of 
illiquid assets or risk-mitigating hedges entered into in connection 
with, and related to, individual or aggregated positions in, or 
holdings of, illiquid assets.\37\ The proposal would allow a fund to 
count risk-mitigating hedging positions that are related to the fund's 
holdings of illiquid assets towards the 75 percent asset test because 
such positions are, by definition, associated with the fund's illiquid 
holdings. In addition, this approach is consistent with safe and sound 
risk-management practices and other provisions of the Volcker Rule.\38\
---------------------------------------------------------------------------

    \37\ Proposed Rule 225.180(i).
    \38\ See 12 U.S.C. 1851(d)(1)(C). The Board expects to interpret 
the language concerning risk-mitigating hedges consistent with the 
manner in which such language is implemented through the rulemaking 
process conducted under section 13(b)(2) of the BHC Act.
---------------------------------------------------------------------------

    The proposed rule also provides that a fund will be considered 
``contractually committed to principally invest'' in illiquid assets as 
of May 1, 2010, if the fund's organizational documents (such as the 
limited partnership agreement in the case of a fund organized in this 
manner), or other documents that constitute a contractual obligation of 
the fund (such as a binding side letter agreement entered into with 
investors) that was in effect as of May 1, 2010, provide for the fund 
to be principally invested in illiquid assets during the period 
beginning on the date when capital contributions are first received by 
the fund for the purpose of making investments and ending on the fund's 
expected termination date.\39\ This definition is intended to recognize 
that an illiquid fund may have more than 25 percent of its assets in 
liquid assets (such as cash or money market instruments) during its 
initial pre-investment organizational period, while the fund seeks to 
meet its investment objective of investing principally in illiquid 
assets.
---------------------------------------------------------------------------

    \39\ Proposed Rule 225.180(i)(2).
---------------------------------------------------------------------------

    Additionally, the proposed rule provides that a fund would be 
considered to have an ``investment strategy to principally invest'' in 
illiquid assets if the fund either: (i) Markets or holds itself out to 
investors as intending to principally invest in illiquid assets; or 
(ii) has a documented investment policy of principally investing in 
illiquid assets.\40\ In considering whether a hedge fund or private 
equity fund's organizational documents, marketing materials, or 
investment policy provide for the fund to principally invest in 
illiquid assets, banking entities should consider whether the assets to 
be acquired by the fund (as specified in such materials) are of the 
type and nature that would make the assets ``illiquid assets'' or 
``liquid assets'' for purposes of the rule. For example, under the 
proposal, if a fund's investment strategy provides for the fund to 
primarily invest in publicly traded stocks or OTC derivatives that are 
regularly bought and sold in the inter-dealer market, the fund would 
not be considered to have an investment strategy to principally invest 
in illiquid assets. This would be the case even if the fund's 
investment strategy did not indicate that the assets acquired by the 
fund must be traded on a recognized exchange, trading facility, or 
market of the type described in section 225.180(h)(2) or quoted on 
inter-dealer systems of the type described in section 225.180(h)(3). 
Likewise, under the proposal, a fund generally would be considered to 
be contractually committed to invest in illiquid assets if the fund's 
organizational documents provide for the fund to invest in the equity 
of early-stage nonpublic companies, even if the fund's documents do not 
specify that the equity of such companies must not be traded or quoted 
in the manner described in section 225.180(h)(2)-(4).
---------------------------------------------------------------------------

    \40\ Proposed Rule 225.180(i)(3).
---------------------------------------------------------------------------

    The Board is interested in receiving comments on the 
appropriateness of these criteria and on whether there are other 
indicia of being ``contractually committed to principally invest,'' or 
having an ``investment strategy to principally invest,'' in illiquid 
assets that would better achieve the Volcker Rule's objectives.
2. Criteria Focused on the Banking Entity's Investment
    Besides meeting the criteria described above, a banking entity's 
interest in a hedge fund or private equity fund qualifies for the 
extended transition period in section 13(c)(3) of the BHC Act only if 
the banking entity's retention of that ownership interest in the fund, 
or provision of additional capital to the fund, is necessary to fulfill 
a contractual

[[Page 72746]]

obligation of the banking entity that was in effect on May 1, 2010.\41\ 
This statutory restriction complements and reinforces the fund-related 
criteria discussed above because a fund that is principally invested in 
liquid assets is unlikely to require its investors to commit to 
remaining invested in the fund for, or provide additional capital over, 
an extended period of time.
---------------------------------------------------------------------------

    \41\ 12 U.S.C. 1851(c)(3)(A).
---------------------------------------------------------------------------

    The proposed rule provides that a banking entity will be considered 
to have a ``contractual obligation'' to remain invested in a fund only 
if the banking entity, under the contractual terms of its equity, 
partnership, or other ownership interest in the fund or other 
contractual arrangements with the fund that were in effect as of May 1, 
2010, is prohibited from both: (i) Redeeming all of its equity, 
partnership, or other ownership interests in the fund; and (ii) selling 
or otherwise transferring all such ownership interests to a person that 
is not an affiliate of the banking entity.\42\ Similarly, the proposed 
rule specifies that a banking entity has a contractual obligation to 
provide additional capital to an illiquid fund only if the banking 
entity is required, under the contractual terms of its equity, 
partnership, or other ownership interest in the fund or other 
contractual arrangements with the fund that were in effect as of May 1, 
2010, to provide additional capital to the fund.
---------------------------------------------------------------------------

    \42\ Proposed Rule 225.181(b)(3)(i).
---------------------------------------------------------------------------

    In the Board's experience, to the extent that contractual 
obligations described above exist between a banking entity and a hedge 
fund or private equity fund, such obligations often may be waived with 
the consent of the general partner and/or the other investors in the 
fund. To address these situations, the proposed rule provides that 
either of the contractual obligations described above will not be 
considered to be in effect with respect to a banking entity if: (i) The 
obligation may be terminated by the banking entity or any of its 
subsidiaries or affiliates; or (ii) the obligation may be terminated 
with the consent of other persons unless the banking entity and its 
subsidiaries and affiliates have used their reasonable best efforts to 
obtain such consent and such consent has been denied.\43\ These 
provisions are intended to ensure that the banking entity's obligation 
to remain invested in, or provide additional capital to, a fund cannot 
be terminated by the banking entity itself or through its reasonable 
best efforts.
---------------------------------------------------------------------------

    \43\ Proposed Rule 225.181(b)(3)(iii)(A) and (B).
---------------------------------------------------------------------------

    The Board invites comments on the appropriateness of the criteria 
contained in the definition. For example, are there other ways to 
define a ``contractual obligation'' that would better achieve the 
objectives of the Volcker Rule's conformance period?
3. Application for Extended Transition Period
    Under section 619 of the Dodd-Frank Act, a banking entity may take 
advantage of the extended transition period with respect to an 
investment in a qualifying illiquid fund only with the approval of the 
Board. Section 225.181(b) of the proposed rule implements this 
requirement. A banking entity that seeks an extended transition period 
with respect to an illiquid fund must submit a request to the Board in 
accordance with the requirements of section 225.181(c). Any request 
must address the factors specified in section 225.181(d) of the 
proposed rule, as described in Part II above. The Board expects to 
carefully review requests for an extended transition period to ensure 
that the banking entity's interest in the fund and the fund's assets 
and investment strategy satisfy the requirements contained in the rule 
in order to be eligible for an extended transition period. As noted 
above, in cases where the banking entity is primarily supervised by 
another Federal banking agency, the SEC, or the CFTC, the Board would 
consult with such agency both in connection with its review of the 
application and, if applicable, prior to imposing conditions in 
connection with the approval of any request by the banking entity 
seeking an extended transition period with respect to an illiquid fund 
under the proposed rule.
    As provided in the Volcker Rule, the Board may grant a banking 
entity only one extended transition period with respect to any illiquid 
fund, which may not exceed 5 years.\44\ The Volcker Rule expressly 
states that any extended transition period will automatically terminate 
(unless it already expired by its terms) on the date on which the 
contractual obligation to invest in, or provide additional capital to, 
the illiquid fund terminates.\45\ Section 225.181(b)(2)(ii) implements 
this termination requirement.
---------------------------------------------------------------------------

    \44\ The statute provides that a banking entity may apply for a 
single extension with respect to an illiquid fund, and that such 
extension may not exceed 5 years. In light of the statutory 
language, the Board retains the right to grant an extended 
transition period of less than 5 years if, based on all the facts 
and circumstances, it determines such extension is appropriate.
    \45\ Id. at Sec.  1851(c)(4).
---------------------------------------------------------------------------

4. Exception for Private Equity Funds as Defined Under the Investment 
Advisors Act of 1940
    Section 13(h)(7)(B) of the BHC Act provides that, for purposes of 
the definition of an ``illiquid fund,'' the term ``hedge fund'' shall 
not include a ``private equity fund,'' as such term is used in section 
203(m) of the Investment Advisors Act of 1940 (15 U.S.C. 80b-3(m)).'' 
\46\ However, section 203(m) of the Investment Advisors Act, as added 
by section 408 of the Dodd-Frank Act, does not contain a definition of, 
nor does it use the term, ``private equity fund.'' Moreover, Congress' 
intent in adopting this exclusion is unclear. For example, a fund that 
invests primarily in nonpublic portfolio companies, which are commonly 
referred to in the investment community as ``private equity funds,'' 
appears to be the type of fund that the Volcker Rule intended to 
potentially qualify as an ``illiquid fund.'' As noted earlier, the 
Volcker Rule specifically includes investments in ``portfolio 
companies'' as an example of an ``illiquid asset,'' one of the key 
terms used to define an ``illiquid fund.''
---------------------------------------------------------------------------

    \46\ See 12 U.S.C. 1851(h)(7)(B).
---------------------------------------------------------------------------

    In any event, the Board does not believe that it is necessary to 
resolve the ambiguity surrounding this provision because the exclusion 
would not have any effect on the ability of a fund to qualify as an 
illiquid fund. This is because the Volcker Rule defines a ``hedge 
fund'' and a ``private equity fund'' synonymously.\47\ Thus, any 
illiquid fund that would have been excluded from the definition of 
``hedge fund'' because it met the missing definition of a ``private 
equity fund'' in the Investment Advisors Act could still qualify for 
the extended conformance period afforded to illiquid funds as a 
``private equity fund'' under the Volcker Rule itself.
---------------------------------------------------------------------------

    \47\ 12 U.S.C. 1851(h)(2).
---------------------------------------------------------------------------

D. Nonbank Financial Companies Supervised by the Board

    As noted above, the Volcker Rule does not prohibit nonbank 
financial companies supervised by the Board from engaging in 
proprietary trading, or from having the types of investments in or 
relationships with hedge funds or private equity funds that banking 
entities are prohibited or restricted from having under the Volcker 
Rule. However, the Volcker Rule provides that the Board or other 
appropriate agency impose additional capital charges, quantitative 
limits, or other restrictions on nonbank financial companies supervised 
by the Board or their

[[Page 72747]]

subsidiaries that are engaged in such activities or maintain such 
relationships.\48\ Like banking entities, the Volcker Rule provides a 
nonbank financial company supervised by the Board two years after the 
date the company becomes a nonbank financial company supervised by the 
Board to conform its activities to any applicable requirements of the 
Volcker Rule, including any capital requirements or quantitative 
limitations adopted thereunder and applicable to the company. The 
Volcker Rule also provides the Board the ability to extend this two-
year conformance period by up to three additional one-year periods.\49\ 
Section 225.182 of the proposed rule implements the conformance period 
for nonbank financial companies supervised by the Board. A nonbank 
financial company supervised by the Board seeking an extension must 
submit a request to the Board under the same time frame as required of 
banking entities.
---------------------------------------------------------------------------

    \48\ See 12 U.S.C. 1851(a)(2), (d)(4).
    \49\ 12 U.S.C. 1851(c)(2).
---------------------------------------------------------------------------

III. Request for Comments

    The Board invites comments on all aspects of the proposed rule. 
Comments are specifically requested on the following matters:
    1. Are the definitions contained in the proposed rule appropriate? 
Would other definitions be more consistent with the language or 
purposes of the Volcker Rule?
    2. Is the proposed requirement that at least 75 percent of a fund's 
assets be ``illiquid assets'' or related hedges appropriate in order 
for a fund to meet the definition of ``principally invested''? Would an 
alternative number, metric, or other indicia be more consistent with 
the purposes of the Volcker Rule?
    3. Are the enumerated criteria for determining what qualifies as a 
``liquid asset'' appropriate? If not, what additional or alternative 
metrics or screens should the Board consider?
    4. Are there particular types of assets that should be defined, by 
rule, as illiquid? If so, what types of assets would these be? Would 
the assets generally be considered illiquid assets under the terms of 
the proposed rule?
    5. What will the potential impact of the proposed rule be on 
affected entities?
    6. Are there any additional factors that the Board should consider 
in reviewing a request for an extension of the conformance period? Are 
there additional factors that the Board should consider in reviewing a 
request for an extension with respect to an illiquid fund?
    7. Are there specific additional conditions or limitations that the 
Board should, by rule, impose in connection with granting an extension 
of the conformance period? If so, what conditions or limitations would 
be appropriate? Alternatively, should the Board and the other Federal 
agencies responsible for implementing the Volcker Rule consider what 
conditions or limitations might be appropriate to apply to prohibited 
activities that are conducted during the conformance period (including 
any extension thereof) on a tailored or case-by-case basis?
    8. Are there other matters that the Board should address as part of 
the conformance period rulemaking required by section 13(c)(6) of the 
BHC Act?

IV. Administrative Law Matters

A. Paperwork Reduction Act Analysis

    In accordance with the Paperwork Reduction Act of 1995 
(``PRA''),\50\ the Board reviewed the proposed rule under the authority 
delegated to the Board by Office of Management and Budget (``OMB''). 
The Board may not conduct or sponsor, and a respondent is not required 
to respond to, an information collection unless it displays a currently 
valid OMB control number.
---------------------------------------------------------------------------

    \50\ 44 U.S.C. 3506; 5 CFR 1320, Appendix A.1.
---------------------------------------------------------------------------

    Sections 225.181(c) and 225.182(c) of the proposed rule contain 
collections of information that are subject to the PRA. The OMB control 
number for these information collections will be assigned. These 
collections of information would only be required for banking entities 
and nonbank financial companies supervised by the Board that 
voluntarily decide to seek an extension of time to conform their 
activities to the Volcker Rule or divest their interest in an illiquid 
hedge fund or private equity fund. As discussed in the Supplementary 
Information, the Dodd-Frank Act generally requires banking entities and 
nonbank financial holding companies supervised by the Board to conform 
their activities and investments to the restrictions in the Volcker 
Rule within 2 years of the effective date of the Volcker Rule's 
restrictions. The proposed rule implements this conformance period and, 
as permitted by the Dodd-Frank Act, permits a banking entity or nonbank 
financial company supervised by the Board to request an extension of 
time to conform its activities to the Volcker Rule. Section 225.181(c) 
would require an application for an extension by a banking entity to be 
(1) submitted in writing to the Board at least 90 days prior to the 
expiration of the applicable time period, (2) provide the reasons why 
the banking entity believes the extension should be granted, and (3) 
provide a detailed explanation of the banking entity's plan for 
divesting or conforming the activity or investment(s). Section 
225.182(c) would require an application for an extension by a nonbank 
financial holding company to be (1) submitted in writing to the Board 
at least 90 days prior to the expiration of the applicable time period, 
(2) provide the reasons why the nonbank financial holding company 
believes the extension should be granted, and (3) provide a detailed 
explanation of the company's plan for coming into compliance with the 
requirements of the Volcker Rule. A banking entity or nonbank financial 
company supervised by the Board may request confidential treatment of 
information submitted as part of an extension request in accordance 
with the Freedom of Information Act.
    The estimated burden per request is 1 hour. It is estimated that 
there were approximately 7,200 banking entities as of December 31, 
2009. Of that number, the Board estimates that approximately 720 
banking entities would request an extension of the conformance period 
under the proposed rule. Therefore, the total amount of annual burden 
is estimated to be 720 hours. The number of nonbank financial companies 
supervised by the Board will be determined by the FSOC in accordance 
with the procedures established under the Dodd-Frank Act. Accordingly, 
the Board is unable at this time to estimate the number of nonbank 
financial companies supervised by the Board that might request an 
extension of the Volcker Rule conformance period under the proposed 
rule.
    Comments are invited on:
    (a) Whether the information collection is necessary for the proper 
performance of the agency functions; including whether the information 
has practical utility;
    (b) The accuracy of the estimate of the burden of the information 
collection, including the cost of compliance;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (d) Ways to minimize the burden of information collection on 
respondents, including through the use of automated collection 
techniques or other forms of information technology.

[[Page 72748]]

B. Initial Regulatory Flexibility Act Analysis

    In accordance with Section 3(a) of the Regulatory Flexibility Act, 
5 U.S.C. 601 et seq., (``RFA''), the Board is publishing an initial 
regulatory flexibility analysis of the proposed rule. The RFA requires 
an agency either to provide an initial regulatory flexibility analysis 
with a proposed rule for which a general notice of proposed rulemaking 
is required or to certify that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on this analysis and for the reasons stated below, the Board 
believes that this proposed rule would not have a significant economic 
impact on a substantial number of small entities. Nevertheless, the 
Board is publishing an initial regulatory flexibility analysis and 
requesting public comment in the following areas. A final regulatory 
flexibility analysis will be conducted after consideration of comments 
received during the public comment period.
    The Volcker Rule, adopted as a new section 13 of the BHC Act, 
applies to all banking entities and nonbank financial companies 
supervised by the Board, regardless of size. The Board is proposing to 
amend Regulation Y to implement the provisions of the Dodd-Frank Act 
that allow a banking entity--including a small banking entity--or a 
nonbank financial company supervised by the Board to obtain, with the 
Board's approval, an extended period of time to conform its activities 
and investments to the requirements of the Volcker Rule. Under the 
proposed rule, a banking entity of any size may request up to three 
one-year extensions of the general two-year conformance period provided 
under section 13 of the BHC Act, as well as one extension of up to five 
years to divest certain ownership interests in a hedge fund or private 
equity fund that qualifies as an ``illiquid fund'' under the statute 
and proposed rule. The SUPPLEMENTARY INFORMATION provides additional 
information regarding the reasons for, and the objective and legal 
basis of, the proposed rule.
    Under regulations issued by the Small Business Administration 
(``SBA''), a bank or other depository institution is considered 
``small'' if it has $175 million or less in assets.\51\ As of December 
31, 2009, there were approximately 2450 small bank holding companies, 
293 small savings association, 132 small national banks, 73 small State 
member banks, 665 small State nonmember banks, and 21 small foreign 
banking organizations that are subject to section 8 of the 
International Banking Act of 1978. As of that date, there were no 
nonbank financial companies supervised by the Board. The Volcker Rule 
would affect only those entities that engage in activities or that hold 
investments prohibited or restricted under the terms of the Volcker 
Rule. As explained above, the Board estimates that of the total number 
of banking entities that would be affected by the Volcker Rule, 
approximately 10 percent would likely file an extension request under 
the proposed rule. Based on its supervisory experience, the Board 
believes that small banking entities are less likely to be engaged in 
the types of activities or hold investments prohibited under the 
Volcker Rule, and as such estimates that only 5 percent of small 
banking entities likely would file an extension request under the 
proposal. The Board specifically seeks comment on whether this estimate 
is appropriate. The Board notes that the impact of the proposal on 
entities choosing to take advantage of the proposal's extended 
conformance period provided under the proposed rule would be positive 
and not adverse. This is because the proposed rule would allow affected 
entities to seek and obtain an extended period of time to conform their 
activities, investments, or relationships to the requirements of the 
Volcker Rule. The Board also has taken several steps to reduce the 
potential burden of the proposed rule on all banking entities, 
including small banking entities. For example, the proposed rule 
establishes a straightforward process for banking entities, including 
small banking entities, to request an extension of the conformance 
period or an extended transition period with respect to an investment 
in an illiquid fund, and permits such requests to be submitted in 
letter form. The proposed rule also uses standards drawn from existing 
federal banking and securities regulations to help define the types of 
funds that may qualify as an ``illiquid fund'' under the statute and 
the proposed rule, which should assist small banking entities in 
determining whether their investments qualify for the extended 
transition period available for investments in illiquid funds.
---------------------------------------------------------------------------

    \51\ 13 CFR 121.201.
---------------------------------------------------------------------------

    As discussed in the SUPPLEMENTARY INFORMATION, the Dodd-Frank Act 
requires that the Board adopt rules implementing the Volcker Rule's 
conformance period by January 21, 2011. The Board does not believe that 
the proposed rule duplicates, overlaps, or conflicts with any other 
Federal rules. The Board requests comment on whether there are 
additional steps that the Board could take to reduce the potential 
burden on small banking entities consistent with the terms and purpose 
of section 13 of the BHC Act. The Board will carefully review any 
comments received on these issues during the public comment period.

Solicitation of Comments on Use of Plain Language

    Section 722 of the GLBA required the Federal banking agencies to 
use plain language in all proposed and final rules published after 
January 1, 2000. The Board invites comment on how to make the interim 
final rule easier to understand. For example, the Board requests 
comment on such questions as:
     Have we organized the material to suit your needs? If not, 
how could the rule be more clearly stated?
     Are the requirements in the rule clearly stated? If not, 
how could the rule be more clearly stated?
     Do the regulations contain technical language or jargon 
that is not clear? If so, which language requires clarification?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the regulation easier to 
understand? If so, what changes would make the regulation easier to 
understand?
     Would more, but shorter, sections be better? If so, which 
sections should be changed?
     What else could we do to make the regulation easier to 
understand?

List of Subjects in 12 CFR Part 225

    Administrative practice and procedure, Banks, banking, Holding 
companies, Reporting and recordkeeping requirements, Securities.

Authority and Issuance

    For the reasons stated in the preamble, the Board proposes to amend 
Regulation Y, 12 CFR part 225, as set forth below:

Proposed Rules

    The Board proposes to adopt rules under part 225 of Title 12, 
Chapter II of the Code of Federal Regulations, as follows:

PART 225--BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL 
(REGULATION Y)

    1. The authority citation for part 225 is revised to read as 
follows:

    Authority:  12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-
1, 1843(c)(8), 1844(b), 1851, 1972(1), 3106, 3108, 3310, 3331-3351, 
3907, and 3909; 15 U.S.C. 6801 and 6805.

[[Page 72749]]

Subpart L--Conditions to Orders

    2. Add a new subpart L heading as set forth above, and designate 
Sec.  225.200 under subpart L.
    3. Add Subpart K to part 225 to read as follows:

Subpart K--Proprietary Trading and Relationships with Hedge Funds 
and Private Equity Funds

Sec.
225.180 Definitions.
225.181 Conformance period for banking entities engaged in 
prohibited proprietary trading or private fund activities.
225.182 Conformance period for nonbank financial companies 
supervised by the board engaged in proprietary trading or private 
fund activities.

Subpart K--Proprietary Trading and Relationships with Hedge Funds 
and Private Equity Funds


Sec.  225.180  Definitions.

    For purposes of this subpart:
    (a) Banking entity means--
    (1) Any insured depository institution;
    (2) Any company that controls an insured depository institution;
    (3) Any company that is treated as a bank holding company for 
purposes of section 8 of the International Banking Act of 1978; and
    (4) Any affiliate or subsidiary of any of the foregoing entities.
    (b) Hedge fund and private equity fund mean an issuer that would be 
an investment company, as defined in the Investment Company Act of 1940 
(15 U.S.C. 80a-1 et seq.), but for section 3(c)(1) or 3(c)(7) of that 
Act, or such similar funds as the appropriate Federal banking agencies, 
the Securities and Exchange Commission, and the Commodity Futures 
Trading Commission may, by rule, as provided in section 13(b)(2) of the 
Bank Holding Company Act (12 U.S.C. 1851(b)(2)), determine.
    (c) Insured depository institution has the same meaning as ordered 
to that term in section 3 of the Federal Deposit Insurance Act (12 
U.S.C. 1813), except that for purposes of this subpart the term shall 
not include an institution that functions solely in a trust or 
fiduciary capacity if--
    (1) All or substantially all of the deposits of such institution 
are in trust funds and are received in a bona fide fiduciary capacity;
    (2) No deposits of such institution which are insured by the 
Federal Deposit Insurance Corporation are offered or marketed by or 
through an affiliate of such institution;
    (3) Such institution does not accept demand deposits or deposits 
that the depositor may withdraw by check or similar means for payment 
to third parties or others or make commercial loans; and
    (4) Such institution does not--
    (i) Obtain payment or payment related services from any Federal 
Reserve bank, including any service referred to in section 11A of the 
Federal Reserve Act (12 U.S.C. 248a); or
    (ii) Exercise discount or borrowing privileges pursuant to section 
19(b)(7) of the Federal Reserve Act (12 U.S.C. 416(b)(7)).
    (d) Nonbank financial company supervised by the Board means a 
nonbank financial company supervised by the Board of Governors, as 
defined in section 102 of the Financial Stability Act of 2010 (12 
U.S.C. 5311).
    (e) Board means the Board of Governors of the Federal Reserve 
System.
    (f) Illiquid fund means a hedge fund or private equity fund that as 
of May 1, 2010:
    (1) Was principally invested in illiquid assets; or
    (2) Was invested in, and contractually committed to principally 
invest in, illiquid assets; and
    (3) Makes all investments pursuant to, and consistent with, an 
investment strategy to principally invest in illiquid assets.
    (g) Illiquid assets means any real property, security, obligation, 
or other asset that--
    (1) Is not a liquid asset; or
    (2) Because of statutory or regulatory restrictions applicable to 
the hedge fund, private equity fund or asset, cannot be offered, sold, 
or otherwise transferred by the hedge fund or private equity fund to a 
person that is unaffiliated with the relevant banking entity, provided 
that any asset may be considered an illiquid asset under this paragraph 
(g)(2) only for so long as such statutory or regulatory restriction is 
applicable.
    (h) Liquid asset means:
    (1) Cash or cash equivalents;
    (2) An asset that is traded on a recognized, established exchange, 
trading facility or other market on which there exist independent, bona 
fide offers to buy and sell so that a price reasonably related to the 
last sales price or current bona fide competitive bid and offer 
quotations can be determined for a particular asset almost 
instantaneously;
    (3) An asset for which there are bona fide, competitive bid and 
offer quotations in a recognized inter-dealer quotation system or 
similar system or for which multiple dealers furnish bona fide, 
competitive bid and offer quotations to other brokers and dealers on 
request;
    (4) An asset the price of which is quoted routinely in a widely 
disseminated publication that is readily available to the general 
public or through an electronic service that provides indicative data 
from real-time financial networks;
    (5) An asset with an initial term of one year or less and the 
payments on which at maturity may be settled, closed-out, or paid in 
cash or one or more other liquid assets described in paragraphs (h)(1), 
(2), (3), or (4) of this section; and
    (6) Any other asset that the Board determines, based on all the 
facts and circumstances, is a liquid asset.
    (i) Principally invested and related definitions.--A hedge fund or 
private equity fund--
    (1) Is principally invested in illiquid assets if at least 75 
percent of the fund's consolidated total assets (as reflected on the 
fund's financial statements prepared in accordance with applicable 
accounting standards) are--
    (i) Illiquid assets; or
    (ii) Risk-mitigating hedges entered into in connection with and 
related to individual or aggregated positions in, or holdings of, 
illiquid assets;
    (2) Is contractually committed to principally invest in illiquid 
assets if the fund's organizational documents, or other documents that 
constitute a contractual obligation of the fund, provide for the fund 
to be principally invested in assets described in paragraph (i)(1) of 
this section during the period beginning on the date when capital 
contributions are first received for the purpose of making investments 
and ending on the fund's expected termination date; and
    (3) Has an investment strategy to principally invest in illiquid 
assets if the fund--
    (i) Markets or holds itself out to investors as intending to 
principally invest in assets described in paragraph (i)(1) of this 
section; or
    (ii) Has a documented investment policy of principally investing in 
assets described in paragraph (i)(1) of this section.


Sec.  225.181  Conformance period for banking entities engaged in 
prohibited proprietary trading or private fund activities.

    (a) Conformance period. (1) In general.--Except as provided in 
paragraph (b)(2) or (3), a banking entity shall bring its activities 
and investments into compliance with the requirements of section 13 of 
the Bank Holding Company Act (12 U.S.C. 1851) and this

[[Page 72750]]

subpart no later than 2 years after the earlier of:
    (i) July 21, 2012; or
    (ii) 12 months after the date on which final rules adopted under 
section 13(b)(2) of the Bank Holding Company Act (12 U.S.C. 1851(b)(2)) 
are published in the Federal Register.
    (2) New banking entities.--A company that was not a banking entity, 
or a subsidiary or affiliate of a banking entity, as of July 21, 2010, 
and becomes a banking entity, or a subsidiary or affiliate of a banking 
entity, after that date shall bring its activities and investments into 
compliance with the requirements of section 13 of the Bank Holding 
Company Act (12 U.S.C. 1851) and this subpart before the later of--
    (i) The conformance date determined in accordance with paragraph 
(a)(1) of this section; or
    (ii) 2 years after the date on which the company becomes a banking 
entity or a subsidiary or affiliate of a banking entity.
    (3) Extended conformance period. The Board may extend the two-year 
period under paragraph (a)(1) or (2) of this section by not more than 
three one-year periods, if, in the judgment of the Board, each such 
one-year extension is consistent with the purposes of section 13 of the 
Bank Holding Company Act (12 U.S.C. 1851) and this subpart and would 
not be detrimental to the public interest.
    (b) Illiquid funds. (1) Extended transition period.--The Board may 
further extend the period provided by paragraph (a) of this section 
during which a banking entity may acquire or retain an equity, 
partnership, or other ownership interest in, or otherwise provide 
additional capital to, a private equity fund or hedge fund if--
    (i) The fund is an illiquid fund; and
    (ii) The acquisition or retention of such interest, or provision of 
additional capital, is necessary to fulfill a contractual obligation of 
the banking entity that was in effect on May 1, 2010.
    (2) Duration limited. The Board may grant a banking entity only one 
extension under paragraph (b)(1) of this section and such extension--
    (i) May not exceed 5 years beyond any conformance period granted 
under paragraph (a)(3) of this section; and
    (ii) Shall terminate automatically on the date during any such 
extension on which the banking entity is no longer under a contractual 
obligation described in paragraph (b)(1)(ii) of this section.
    (3) Contractual obligation. For purposes of this paragraph (b)--
    (i) A banking entity has a contractual obligation to take or retain 
an equity, partnership, or other ownership interest in an illiquid fund 
if the banking entity is prohibited under the terms of its equity, 
partnership, or other ownership interest in the fund or other 
contractual arrangements with the fund from--
    (A) Redeeming all of its equity, partnership, or other ownership 
interests in the fund; and
    (B) Selling or otherwise transferring all such ownership interests 
to a person that is not an affiliate of the banking entity;
    (ii) A banking entity has a contractual obligation to provide 
additional capital to an illiquid fund if the banking entity is 
required under the terms of its equity, partnership, or other ownership 
interest in the fund or other contractual arrangements with the fund to 
provide additional capital to such fund; and
    (iii) A banking entity shall be considered to have a contractual 
obligation for purposes of paragraph (b)(3)(i) or (ii) of this section 
only if--
    (A) The obligation may not be terminated by the banking entity or 
any of its subsidiaries or affiliates under the terms of its agreement 
with the fund; and
    (B) In the case of an obligation that may be terminated with the 
consent of other persons, the banking entity and its subsidiaries and 
affiliates have used their reasonable best efforts to obtain such 
consent and such consent has been denied.
    (c) Approval required to hold interests in excess of time limit. 
The conformance period in paragraph (a) may be extended in accordance 
with paragraph (a)(3) or (b)(1) of this section only with the approval 
of the Board. A banking entity that seeks the Board's approval for an 
extension of the conformance period under paragraph (a)(3) or for an 
extended transition period under paragraph (b)(1) of this section 
must--
    (1) Submit a request in writing to the Board at least 90 days prior 
to the expiration of the applicable time period;
    (2) Provide the reasons why the banking entity believes the 
extension should be granted, including information that addresses the 
factors in paragraph (d)(1) of this section; and
    (3) Provide a detailed explanation of the banking entity's plan for 
divesting or conforming the activity or investment(s).
    (d) Factors governing Board determinations.
    (1) Extension requests generally.--In reviewing any application for 
an extension under paragraph (a)(3) or (b)(1) of this section, the 
Board may consider all the facts and circumstances related to the 
activity, investment, or fund, including, to the extent relevant--
    (i) Whether the activity or investment--
    (A) Involves or results in material conflicts of interest between 
the banking entity and its clients, customers or counterparties;
    (B) Would result, directly or indirectly, in a material exposure by 
the banking entity to high-risk assets or high-risk trading strategies;
    (C) Would pose a threat to the safety and soundness of the banking 
entity; or
    (D) Would pose a threat to the financial stability of the United 
States;
    (ii) Market conditions;
    (iii) The nature of the activity or investment;
    (iv) The date that the banking entity's contractual obligation to 
make or retain an investment in the fund was incurred and when it 
expires;
    (v) The contractual terms governing the banking entity's interest 
in the fund;
    (vi) The degree of control held by the banking entity over 
investment decisions of the fund;
    (vii) The types of assets held by the fund;
    (viii) The date on which the fund is expected to wind up its 
activities and liquidate, or its investments may be redeemed or sold;
    (ix) The total exposure of the banking entity to the activity or 
investment and the risks that disposing of, or maintaining, the 
investment or activity may pose to the banking entity or the financial 
stability of the United States;
    (x) The cost to the banking entity of disposing of the activity or 
investment within the applicable period; and
    (xi) Any other factor that the Board believes appropriate.
    (2) Consultation. In the case of a banking entity that is primarily 
supervised by another Federal banking agency, the Securities and 
Exchange Commission, or the Commodity Futures Trading Commission, the 
Board will consult with such agency prior to the approval of a request 
by the banking entity for an extension under paragraph (a)(3) or (b)(1) 
of this section.
    (e) Authority to impose restrictions on activities or investments 
during any extension period.
    (1) In general. The Board may impose such conditions on any 
extension approved under paragraph (a)(3) or (b)(1) of this section as 
the Board determines are necessary or appropriate to protect the safety 
and soundness of banking entity or the financial stability of the 
United States, address material conflicts of interest or other unsound 
banking practices, or otherwise further the purposes of section 13 of 
the Bank Holding Company Act (12 U.S.C. 1851) and this subpart.

[[Page 72751]]

    (2) Consultation. In the case of a banking entity that is primarily 
supervised by another Federal banking agency, the Securities and 
Exchange Commission, or the Commodity Futures Trading Commission, the 
Board will consult with such agency prior to imposing conditions on the 
approval of a request by the banking entity for an extension under 
paragraph (a)(3) or (b)(1) of this section.


Sec.  225.182  Conformance period for nonbank financial companies 
supervised by the board engaged in proprietary trading or private fund 
activities.

    (a) Divestiture requirement. A nonbank financial company supervised 
by the Board shall come into compliance with all applicable 
requirements of section 13 of the Bank Holding Company Act (12 U.S.C. 
1851) and this subpart, including any capital requirements or 
quantitative limitations adopted thereunder and applicable to the 
company, not later than 2 years after the date the company becomes a 
nonbank financial company supervised by the Board.
    (b) Extensions. The Board may, by rule or order, extend the two-
year period under paragraph (a) of this section by not more than three 
one-year periods, if, in the judgment of the Board, each such one-year 
extension is consistent with the purposes of section 13 of the Bank 
Holding Company Act (12 U.S.C. 1851) and this subpart and would not be 
detrimental to the public interest.
    (c) Approval required to hold interests in excess of time limit. A 
nonbank financial company supervised by the Board that seeks the 
Board's approval for an extension of the conformance period under 
paragraph (b) of this section must--
    (1) Submit a request in writing to the Board at least 90 days prior 
to the expiration of the applicable time period;
    (2) Provide the reasons why the nonbank financial company 
supervised by the Board believes the extension should be granted; and
    (3) Provide a detailed explanation of the company's plan for 
conforming the activity or investment(s) to any applicable requirements 
established under section 13(a)(2) or (f)(4) of the Bank Holding 
Company Act (12 U.S.C. 1851(a)(2) and (f)(4)).
    (d) Factors governing Board determinations. In reviewing any 
application for an extension under paragraph (b) of this section, the 
Board may consider all the facts and circumstances related to the 
nonbank financial company and the request including, to the extent 
determined relevant by the Board, the factors described in Sec.  
225.181(d)(1).
    (e) Authority to impose restrictions on activities or investments 
during any extension period. The Board may impose conditions on any 
extension approved under paragraph (b) of this section as the Board 
determines are necessary or appropriate to protect the safety and 
soundness of the nonbank financial company or the financial stability 
of the United States, address material conflicts of interest or other 
unsound practices, or otherwise further the purposes of section 13 of 
the Bank Holding Company Act (12 U.S.C. 1851) and this subpart.

    By order of the Board of Governors of the Federal Reserve 
System, November 16, 2010.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 2010-29277 Filed 11-24-10; 8:45 am]
BILLING CODE 6210-01-P