Regulators took their first step this week toward drafting new rules that would require lenders to retain some risk before selling loans into the secondary market.
In a study released late Tuesday, the Federal Reserve Board outlined eight recommendations regulators should use as they jointly draft regulations over the next six months, including considering the potential effect of risk retention on smaller institutions, weighing the different asset classes and securitization structure and considering the relevant accounting treatment and regulatory capital requirements as they apply to retention.
The central bank made clear that it did not think regulators should enact uniform rules governing all different types of asset classes that would fall under the new restrictions, including credit cards, nonconforming residential mortgages, commercial mortgages and auto loans. The rules should be flexible, it said.
"Simple credit risk retention rules applied uniformly across assets of all types are unlikely to achieve the stated objective of the" Dodd-Frank law, the Fed said.
The study was enough to ease concerns, for now, that regulators may craft tough new risk-retention requirements. The Dodd-Frank law, enacted July 21, required regulators to write such rules, which the market is eagerly awaiting. They would apply to securitizers or originators of assets securitized through the issuance of asset-backed securities.
"The study suggests that regulators will take a flexible and less onerous approach to establishing risk-retention requirements for securitized assets when they publish rules in the second quarter of 2011," Jaret Seiberg, an analyst of Washington Research Group, a division of Concept Capital, wrote in a note to clients.
The study "should result in more favorable final rules," Seiberg wrote.
But other analysts said the industry should still be on guard.
"It's important not to read too much into those reports," said Bert Ely, an independent analyst in Alexandria, Va., "What is going to be more important will be the substance of the rule."
It's also unclear if other regulators will share the Fed's views. The Federal Deposit Insurance Corp. (FDIC), which along with other agencies will be involved in writing the final rule, has already issued its own risk-retention mandate, specifying which securitized assets could qualify for a safe harbor in the event of a bank failure. The agency said that only assets for which there is a 5% retention minimum of credit risk would qualify. The rule said it would automatically conform to the joint agency rulemaking, but observers are still concerned regulators are not on the same page.
"How do you make sure that all of these disparate agencies are operating in a coherent fashion?" said Cornelius Hurley, director of the Boston University School of Law Morin Center for Banking and Financial Law. "In the near term we are going to have a lot of incongruous actions by the agencies."
(Separately, the FDIC and Fed jointly announced Wednesday they will hold a two-day symposium on Oct. 25 and Oct. 26 on mortgages and the future of housing finance. )
Ernie Patrikis, a partner at White & Case, said the retention study should be viewed as a rule-writing road map. "Here are the different classes of securitized securities that we should be considering, here's the issues we should be considering with respect to each class," he said. "It's a good step in that direction."