Equity Hedging: OCC Needs to Establish Policy on Publishing Interpretive Decisions
GENERAL ACCOUNTING OFFICE WASHINGTON DC
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OCC has discretion to determine how it will convey its decisions, but the criteria it uses to determine when and whether to publish its decisions are unclear. For the equity hedging decision, OCC first determined that banks holding equities to hedge equity derivative transactions was a permissible activity under the National Bank Act. OCC then decided that the requesting banks would not be allowed to engage in the activity of equity hedging without first obtaining supervisory staff approval of their activities and risk management systems, enabling OCC to ensure that each bank had the necessary risk management systems in place to monitor risks and prevent speculation. OCC did not publish its interpretation until after it received a congressional inquiry in September 2000 questioning its decision. In making certain other decisions interpreting the National Bank Act, OCC has published written interpretive letters. By approving the equity hedge decision the way it did, OCC has been criticized for using supervisory approval as a way to avoid public scrutiny of its decision and has left itself open to questions not only about the process used in this case, but also about the criteria OCC uses to decide when to publish its interpretive decisions. Helping the Congress and other banking regulators affected by OCCs decisions understand the criteria OCC uses to determine when and whether to publish interpretive decisions could help mitigate concerns that arise when OCC interprets federal banking laws that not only affect other banking regulators but are also considered controversial.
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