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Board Interpretations of Regulation A

2-040

ADVANCES TO DEPOSITORY INSTITUTIONS—Obligations Eligible as Collateral

Section 3(a) of Pub. L. 90-505, approved September 21, 1968, amended the eighth paragraph of section 13 of the Federal Reserve Act (12 USC 347) to authorize advances thereunder to member banks “secured by such obligations as are eligible for purchase under section 14(b) of this Act.” The relevant part of such paragraph had previously referred only to “notes...eligible...for purchase,” which the Board had construed as not including obligations generally regarded as securities (see 1962 Fed. Res. Bull. 690 [FRRS 5-817 and 5-818]).
Under section 14(b) direct obligations of, and obligations fully guaranteed as to principal and interest by, the United States are eligible for purchase by Reserve Banks. Such obligations include certificates issued by the trustees of Penn Central Transportation Co. that are fully guaranteed by the secretary of transportation. Under section 14(b) direct obligations of, and obligations fully guaranteed as to principal and interest by, any agency of the United States are also eligible for purchase by Reserve Banks. Following are the principal agency obligations eligible as collateral for advances:
  •  1.
    Federal Intermediate Credit Bank debentures
  •  2.
    Federal Home Loan Bank notes and bonds
  •  3.
    Federal Land Bank bonds
  •  4.
    Bank for Cooperative debentures
  •  5.
    Federal National Mortgage Association notes, debentures and guaranteed certificates of participation
  •  6.
    Obligations of or fully guaranteed by the Government National Mortgage Association
  •  7.
    Merchant Marine bonds
  •  8.
    Export-Import Bank notes and guaranteed participation certificates
  •  9.
    Farmers Home Administration insured notes
  • 10.
    Notes fully guaranteed as to principal and interest by the Small Business Administration
  • 11.
    Federal Housing Administration debentures
  • 12.
    District of Columbia Armory Board bonds
  • 13.
    Tennessee Valley Authority bonds and notes
  • 14.
    Bonds and notes of local urban renewal or public housing agencies fully supported as to principal and interest by the full faith and credit of the United States pursuant to section 302 of the Housing Act of 1961 (42 USC 1421a(c), 1452(c))
  • 15.
    Commodity Credit Corporation certificates of interest in a price-support loan pool
  • 16.
    Federal Home Loan Mortgage Corporation notes, debentures, and guaranteed certificates of participation
  • 17.
    U.S. Postal Service obligations
  • 18.
    Participation certificates evidencing undivided interests in purchase contracts entered into by the General Services Administration
  • 19.
    Obligations entered into by the Secretary of Health, Education, and Welfare under the Public Health Service Act, as amended by the Medical Facilities Construction and Modernization Amendments of 1970
  • 20.
    Obligations guaranteeed by the Overseas Private Investment Corp., pursuant to the provisions of the Foreign Assistance Act of 1961, as amended.
 Nothing less than a full guarantee of principal and interest by a federal agency will make an obligation eligible. For example, mortgage loans insured by the Federal Housing Administration are not eligible since the insurance contract is not equivalent to an unconditional guarantee and does not fully cover interest payable on the loan. Obligations of international institutions, such as the Inter-American Development Bank and the International Bank for Reconstruction and Development, are also not eligible, since such institutions are not agencies of the United States.
Also eligible for purchase under section 14(b) are “bills, notes, revenue bonds, and warrants with a maturity from date of purchase of not exceeding six months, issued in anticipation of the collection of taxes or in anticipation of the receipt of assured revenues by any State, county, district, political subdivision, or municipality in the continental United States, including irrigation, drainage and reclamation districts.”1 In determining the eligibility of such obligations as collateral for advances, the Reserve Bank will satisfy itself that sufficient tax or other assured revenues earmarked for payment of such obligations will be available for that purpose at maturity, or within six months from the date of the advance if no maturity is stated. Payments due from federal, state or other governmental units may, in the Reserve Bank’s discretion, be regarded as “other assured revenues”; but neither the proceeds of a prospective issue of securities nor future tolls, rents or similar collections for the voluntary use of govenment property for nongovernmental purposes will normally be so regarded. Obligations with original maturities exceeding one year would not ordinarily be self-liquidating as contemplated by the statute, unless at the time of issue provision is made for a redemption or sinking fund that will be sufficient to pay such obligations at maturity. 1968 Fed. Res. Bull. 1012, 1969 Fed. Res. Bull. 150 and 355, 1971 Fed. Res. Bull. 399; and 1972 Fed. Res. Bull. 983; 12 CFR 201.108.
1
Paragraph 3 of section 1 of the Federal Reserve Act (12 USC 221) defines “the continental United States” to mean “the States of the United States and the District of Columbia,” thus including Alaska and Hawaii.
2-050

BANKER’S ACCEPTANCES—Goods held by Persons Employed by Owner

The Board has been asked to review an interpretation it issued in 1933 concerning the eligibility for rediscount by a Federal Reserve Bank of banker’s acceptances issued against field warehouse receipts where the custodian of the goods is a present or former employee of the borrower. (1933 Fed. Res. Bull. 188). The Board determined at that time that the acceptances were not eligible because such receipts do not comply with the requirement of section 13 of the Federal Reserve Act that a banker’s acceptance be “secured at the time of acceptance by a warehouse receipt or other such document conveying or securing title covering readily marketable staples,” nor with the requirement of section XI of the Board’s Regulation A that it be “secured at the time of acceptance by a warehouse, terminal, or other similar receipt, conveying security title to such staples, issued by a party independent of the customer.” The requirement that the receipt be “issued by a party independent of the customer” was deleted from Regulation A in 1973, and thus the primary issue for the Board’s consideration is whether a field warehouse receipt is a document “securing title” to readily marketable staples.
While banker’s acceptances secured by field warehouse receipts are rarely offered for rediscount or as collateral for an advance, the issue of “eligibility” is still significant. If an ineligible acceptance is discounted and then sold by a member bank, the proceeds are deemed to be “deposits” under section 204.1(f) of Regulation D* and are subject to reserve requirements.
In reviewing this matter, the Board has taken into consideration the changes that have occurred in commercial law and practice since 1933. Modern commercial law, embodied in the Uniform Commercial Code, refers to “perfecting security interests” rather than “securing title” to goods. The Board believes that if, under state law, the issuance of a field warehouse receipt provides the lender with a perfected security interest in the goods, the receipt should be regarded as a document “securing title” to goods for the purposes of section 13 of the Federal Reserve Act. It should be noted, however, that the mere existence of a perfected security interest alone is not sufficient; the act requires that the acceptance be secured by a warehouse receipt or its equivalent.
Under the UCC, evidence of an agreement between the secured party and the debtor must exist before a security interest can attach (UCC §  9-202). This agreement may be evidenced by (1) a written security agreement signed by the debtor or (2) the collateral being placed in the possession of the secured party or his agent (UCC § 9-203). Generally, a security interest is perfected by the filing of a financing statement (UCC § 9-302). However, if the collateral is in the possession of a bailee, then perfection can be achieved by (1) having warehouse receipts issued in the name of the secured party; (2) notifying the bailee of the secured party’s interest; or (3) having a financing statement filed (UCC § 9-304(3)).
If the field warehousing operation is properly conducted, a security interest in the goods is perfected when a warehouse recept is issued in the name of the secured party (the lending bank). Therefore, warehouse receipts issued pursuant to a bona fide field warehousing operation satisfy the legal requirements of section 13 of the Federal Reserve Act. Moreover, in a properly conducted field warehousing operation, the warehouse manager will be trained, bonded, supervised and audited by the field warehousing company. This procedure tends to insure that he will not be impermissibly controlled by his former (or sometimes present) employer, the borrower, even though he may look to the borrower for reemployment at some future time. A prudent lender will, of course, carefully review the field warehousing operation to ensure that stated procedures are satisfactory and that they are actually being followed. The lender may also wish to review the field warehousing company’s fidelity bonds and legal liability insurance policies to ensure that they provide satisfactory protection to the lender.
If the warehousing operation is not conducted properly, however, and the manager remains under the control of the borrower, the security interest may be lost. Consequently, the lender may wish to require a written security agreement and the filing of a financing statement to insure that the lender will have a perfected security interest even if it is later determined that the field warehousing operation was not properly conducted. It should be noted however, that the Federal Reserve Act clearly requires that the banker’s acceptance be secured by a warehouse receipt in order to satisfy the requirements of eligibility, and a written security agreement and a filed financing statement, while desirable, cannot serve as a substitute for a warehouse receipt.
This interpretation is based on facts that have been presented in regard to field warehousing operations conducted by established, professional field warehouse companies, and it does not necessarily apply to all field warehousing operations. Thus the interpretations published in the 1918 Federal Reserve Bulletin at pages 31 and 862 maintain their validity with regard to corporations formed for the purpose of conducting limited field warehousing operations. Furthermore, the prohibition that “the borrower shall not have access to the premises and shall exercise no control over the goods stored” (1918 Fed. Res. Bull. 634) retains its validity, except that access for inspection purposes is still permitted under the interpretation published in the 1926 Bulletin at page 666. The purpose for the acceptance transaction must be proper and cannot be for speculation (1919 Fed. Res. Bull. 858) or for the purpose of furnishing working capital 1922 Fed. Res. Bull. 52).
This interpretation supersedes only the interpretation published in the 1933 Bulletin at page 188 and is not intended to affect any other Board interpretation regarding field warehousing. 1978 Fed. Res. Bull. 486; 12 CFR 201.110.
*
The definition of “deposit” is now at section 204.2(a) of Regulation D.
2-060

DISCOUNTS—Consumer Loans and Finance-Company Paper

The Board of Governors has clarified and modified its position with respect to the eligibility of consumer loans and finance-company paper for discount with and as collateral for advances by the Reserve Banks.
Section 13, paragraph 2, of the Federal Reserve Act authorizes a Federal Reserve Bank, under certain conditions, to discount for member banks “notes, drafts, and bills of exchange arising out of actual commercial transactions; that is, notes, drafts, and bills of exchange issued or drawn for agricultural, industrial, or commercial purposes, or the proceeds of which have been used, or are to be used, for such purposes, the Board of Governors of the Federal Reserve System to have the right to determine or define the character of the paper thus eligible for discount, within the meaning of this Act.”
It continues to be the opinion of the Board that borrowing for the purpose of purchasing goods is borrowing for a commercial purpose, whether the borrower intends to use the goods himself or to resell them. Hence, loans made to enable consumers to purchase automobiles or other goods should be included under commercial, agricultural, and industrial paper within the meaning of the Federal Reserve Act, and as such are eligible for discounting with the Reserve Banks and as security for advances from the Reserve Banks under section 13, paragraph 8, of the Federal Reserve Act as long as they conform to requirements with respect to maturity and other matters. This applies equally to loans made directly by banks to consumers and to paper accepted by banks from dealers or finance companies. It also applies to notes of finance companies themselves as long as the proceeds of such notes are used to finance the purchase of consumer goods or for other purposes which are eligible within the meaning of the Federal Reserve Act.
If there is any question as to whether the proceeds of a note of a finance company have been or are to be used for a commercial, agricultural, or industral purpose, a financial statement of the finance company reflecting an excess of notes receivable which appear eligible for rediscount (without regard to maturity) over total current liabilities (i.e., notes due within one year) may be taken as an indication of eligibility. Where information is lacking as to whether direct consumer loans by a finance company are for eligible purposes, it may be assumed that 50 percent of such loans are “notes receivable which appear eligible for rediscount.” In addition, that language should be regarded as including notes given for the purchase of mobile homes that are acquired by a finance company from a dealer-seller of such homes.
The principles stated above apply not only to notes of a finance company engaged in making consumer loans but also to notes of a finance company engaged in making loans for other eligible purposes, including business and agricultural loans. Under section 13a of the Federal Reserve Act, paper representing loans to finance the production, marketing, and carrying of agricultural products or the breeding, raising, fattening, or marketing of livestock is eligible for discount if the paper has a maturity of not exceeding nine months. Consequently, a note of a finance company the proceeds of which are used by it to make loans for such purposes is eligible for discount or as security for a Federal Reserve advance, and such a note, unlike the note of a finance company making consumer loans, may have a maturity of up to nine months. 1972 Fed. Res. Bull. 279; 12 CFR 201.104.
2-061

DISCOUNTS—Demand Paper; Eligibility for Discount, as Security for Advances

The Board of Governors has reconsidered a ruling made in 1917 that demand notes are ineligible for discount under the provisions of the Federal Reserve Act (1917 Fed. Res. Bull. 378).
The basis of that ruling was the provision in the second paragraph of section 13 of the Federal Reserve Act that notes, drafts, and bills of exchange must have a maturity at the time of discount of not more than 90 days, exclusive of grace. The ruling stated that “a demand note or bill is not eligible under the provisions of the act, since it is not in terms payable within the prescribed 90 days, but, at the option of the holder, may not be presented for payment until after that time.”
It is well settled as a matter of law, however, that demand paper is due and payable on the date of its issue. The generally accepted legal view is stated in Beutel’s Brannan on Negotiable Instruments Law, at page 305, as follows:
 The words “on demand” serve the same purpose as words making instruments payable at a specified time. They fix maturity of the obligation and do not make demand necessary, but mean that the instrument is due, payable and matured when made and delivered.
Accordingly, the Board has concluded that, since demand paper is due and payable on the date of its issue, it satisfies the maturity requirements of the statute. Demand paper which otherwise meets the eligibility requirements of the Federal Reserve Act and Regulation A, therefore, is eligible for discount and as security for advances by Reserve Banks. 1966 Fed. Res. Bull. 506; 12 CFR 201.107.
2-062

DISCOUNTS—Mortgage Company Notes

The question has arisen whether notes issued by mortgage banking companies to finance their acquisition and temporary holding of real estate mortgages are eligible for discount by Reserve Banks.
Under section 13 of the Federal Reserve Act the Board has authority to define what are “agricultural, industrial, or commercial purposes,” which is the statutory criterion for determining the eligibility of notes and drafts for discount. However, such definition may not include paper “covering merely investments or issued or drawn for the purpose of carrying or trading in stocks, bonds, or other investment securities.”
The legislative history of section 13 suggests that Congress intended to make eligible for discount “any paper drawn for a legitimate business purpose of any kind”1 and that the Board, in determining what paper is eligible, should place a “broad and adaptable construction”2 upon the terms in section 13. It may also be noted that Congress apparently considered paper issued to carry investment securities as paper issued for a “commercial purpose,” since it specifically prohibited the Board from making such paper eligible for discount. If “commercial” is broad enough to encompass investment banking, it would also seem to include mortgage banking.
In providing for the discount of commercial paper by Reserve Banks, Congress obviously intended to facilitate the current financing of agriculture, industry, and commerce, as opposed to long-term investment.3 In the main, trading in stocks and bonds is investment oriented; most securities transactions do not directly affect the production or distribution of goods and services. Mortgage banking, on the other hand, is essential to the construction industry and thus more closely related to industry and commerce. Although investment bankers also perform similar functions with respect to newly issued securities, Congress saw fit to deny eligibility to all paper issued to finance the carrying of securities. Congress did not distinguish between newly issued and outstanding securities, perhaps covering the larger area in order to make certain that the area of principal concern (i.e., trading in outstanding stocks and bonds) was fully included. Speculation was also a major congressional concern, but speculation is not a material element in mortgage banking operations. Mortgage loans would not therefore seem to be within the purpose underlying the exclusions from eligibility in section 13.
Section 201.3(a) provides that a negotiable note maturing in 90 days or less is not eligible for discount if the proceeds are used “for permanent or fixed investments of any kind, such as land, buildings or machinery, or for any other fixed capital purpose.” However, the proceeds of a mortgage company’s commercial paper are not used by it for any permanent or fixed capital purpose, but only to carry temporarily an inventory of mortgage loans pending their “packaging” for sale to permanent investors that are usually recurrent customers.
In view of the foregoing considerations the Board concluded that notes issued to finance such temporary “warehousing” of real estate mortgage loans are notes issued for an industrial or commercial purpose, that such mortgage loans do not constitute “investment securities,” as that term is used in section 13, and that the temporary holding of such mortgages in these circumstances is not a permanent investment by the mortgage banking company. Accordingly, the Board held that notes having not more than 90 days to run which are issued to finance the temporary holding of mortgage loans are eligible for discount by Reserve Banks. 1970 Fed. Res. Bull. 39; 12 CFR 201.109.
1
House Report No. 69, 63d Cong., p. 48.
2
50 Cong. Rec. 4675 (1913) (remarks of Rep. Phelan).
3
50 Cong. Rec. 5021 (1913) (remarks of Rep. Thompson of Oklahoma); 50 Cong. Rec. 4731-32 (1913) (remarks of Rep. Borland).
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