CHAPTER 55 - ADJUSTABLE INTEREST RATE (LIBOR)

Title 12 > CHAPTER 55

Sections (7)

§ 5801 Findings and purpose

(a) Findings Congress finds that— LIBOR is used as a benchmark rate in more than $200,000,000,000,000 worth of contracts worldwide; a significant number of existing contracts that reference LIBOR do not provide for the use of a clearly defined or practicable replacement benchmark rate when LIBOR is discontinued; and the cessation or nonrepresentativeness of LIBOR could result in disruptive litigation related to existing contracts that do not provide for the use of a clearly defined or practicable replacement benchmark rate.

(b) Purpose It is the purpose of this chapter— to establish a clear and uniform process, on a nationwide basis, for replacing LIBOR in existing contracts the terms of which do not provide for the use of a clearly defined or practicable replacement benchmark rate, without affecting the ability of parties to use any appropriate benchmark rate in new contracts; to preclude litigation related to existing contracts the terms of which do not provide for the use of a clearly defined or practicable replacement benchmark rate; to allow existing contracts that reference LIBOR but provide for the use of a clearly defined and practicable replacement rate, to operate according to their terms; and to address LIBOR references in Federal law.

§ 5802 Definitions

In this chapter: The term “benchmark” means an index of interest rates or dividend rates that is used, in whole or in part, as the basis of or as a reference for calculating or determining any valuation, payment, or other measurement. The term “benchmark administrator” means a person that publishes a benchmark for use by third parties. The term “benchmark replacement” means a benchmark, or an interest rate or dividend rate (which may or may not be based in whole or in part on a prior setting of LIBOR), to replace LIBOR or any interest rate or dividend rate based on LIBOR, whether on a temporary, permanent, or indefinite basis, under or with respect to a LIBOR contract. The term “benchmark replacement conforming changes” means any technical, administrative, or operational changes, alterations, or modifications that— the Board determines, in its discretion, would address 1 or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts; or solely with respect to a LIBOR contract that is not a consumer loan, in the reasonable judgment of a calculating person, are otherwise necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any benchmark replacement conforming changes under subparagraph (A). The term “Board” means the Board of Governors of the Federal Reserve System. The term “Board-selected benchmark replacement” means a benchmark replacement identified by the Board that is based on SOFR, including any tenor spread adjustment pursuant to section 5803(e) of this title . The term “calculating person” means, with respect to any LIBOR contract, any person, including the determining person, responsible for calculating or determining any valuation, payment, or other measurement based on a benchmark. The terms “consumer” and “credit” have the meanings given the terms in section 1602 of title 15 . The term “consumer loan” means a consumer credit transaction. The term “determining person” means, with respect to any LIBOR contract, any person with the authority, right, or obligation, including on a temporary basis (as identified by the LIBOR contract or by the governing law of the LIBOR contract, as appropriate) to determine a benchmark replacement. The term “fallback provisions” means terms in a LIBOR contract for determining a benchmark replacement, including any terms relating to the date on which the benchmark replacement becomes effective. The term “IBOR” means LIBOR, any tenor of non-U.S. dollar currency rates formerly known as the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any predecessor or successor administrator thereof), and any other interbank offered rates that are expected to cease. The term “IBOR benchmark replacement” means a benchmark, or an interest rate or dividend rate (which may or may not be based in whole or in part on a prior setting of an IBOR), to replace an IBOR or any interest rate or dividend rate based on an IBOR, whether on a temporary, permanent, or indefinite basis, under or with respect to an IBOR contract. The term “IBOR contract” means any contract, agreement, indenture, organizational document, guarantee, mortgage, deed of trust, lease, security (whether representing debt or equity, including any interest in a corporation, a partnership, or a limited liability company), instrument, or other obligation or asset that, by its terms, continues in any way to use an IBOR as a benchmark. The term “LIBOR”— means the overnight and 1-, 3-, 6-, and 12-month tenors of U.S. dollar LIBOR (formerly known as the London interbank offered rate) as administered by ICE Benchmark Administration Limited (or any predecessor or successor administrator thereof); and does not include the 1-week or 2-month tenors of U.S. dollar LIBOR. The term “LIBOR contract” means any contract, agreement, indenture, organizational document, guarantee, mortgage, deed of trust, lease, security (whether representing debt or equity, including any interest in a corporation, a partnership, or a limited liability company), instrument, or other obligation or asset that, by its terms, uses LIBOR as a benchmark. The term “LIBOR replacement date” means the first London banking day after June 30, 2023 , unless the Board determines that any LIBOR tenor will cease to be published or cease to be representative on a different date. The term “security” has the meaning given the term in section 77b(a) of title 15 . The term “SOFR” means the Secured Overnight Financing Rate published by the Federal Reserve Bank of New York (or a successor administrator). The term “tenor spread adjustment” means— 0.00644 percent for overnight LIBOR; 0.11448 percent for 1-month LIBOR; 0.26161 percent for 3-month LIBOR; 0.42826 percent for 6-month LIBOR; and 0.71513 percent for 12-month LIBOR. ( Pub. L. 117–103, div. U, § 103 , Mar. 15, 2022 , 136 Stat. 826 .)

§ 5803 LIBOR contracts

(a) In general On the LIBOR replacement date, the Board-selected benchmark replacement shall be the benchmark replacement for any LIBOR contract that, after giving any effect to subsection (b)— contains no fallback provisions; or contains fallback provisions that identify neither— a specific benchmark replacement; nor a determining person.

(b) Fallback provisions On the LIBOR replacement date, any reference in the fallback provisions of a LIBOR contract to— a benchmark replacement that is based in any way on any LIBOR value, except to account for the difference between LIBOR and the benchmark replacement; or a requirement that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates; shall be disregarded as if not included in the fallback provisions of such LIBOR contract and shall be deemed null and void and without any force or effect.

(c) Authority of determining person Subject to subsection (f)(2), a determining person may select the Board-selected benchmark replacement as the benchmark replacement. Any selection by a determining person of the Board-selected benchmark replacement pursuant to paragraph (1) shall be— irrevocable; made by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract; and used in any determinations of the benchmark under or with respect to the LIBOR contract occurring on and after the LIBOR replacement date. If a determining person does not select a benchmark replacement by the date specified in paragraph (2)(B), the Board-selected benchmark replacement, on and after the LIBOR replacement date, shall be the benchmark replacement for the LIBOR contract.

(d) Conforming changes If the Board-selected benchmark replacement becomes the benchmark replacement for a LIBOR contract pursuant to subsection (a) or (c), all benchmark replacement conforming changes shall become an integral part of the LIBOR contract. A calculating person shall not be required to obtain consent from any other person prior to the adoption of benchmark replacement conforming changes.

(e) Adjustment by Board Except as provided in paragraph (2), on the LIBOR replacement date, the Board shall adjust the Board-selected benchmark replacement for each category of LIBOR contract that the Board may identify to include the relevant tenor spread adjustment. For LIBOR contracts that are consumer loans, the Board shall adjust the Board-selected benchmark replacement as follows: During the 1-year period beginning on the LIBOR replacement date, incorporate an amount, to be determined for any business day during that period, that transitions linearly from the difference between the Board-selected benchmark replacement and the corresponding LIBOR tenor determined as of the day immediately before the LIBOR replacement date to the relevant tenor spread adjustment. On and after the date that is 1 year after the LIBOR replacement date, incorporate the relevant tenor spread adjustment.

(f) Rule of construction Nothing in this chapter may be construed to alter or impair— any written agreement specifying that a LIBOR contract shall not be subject to this chapter; except as provided in subsection (b), any LIBOR contract that contains fallback provisions that identify a benchmark replacement that is not based in any way on any LIBOR value (including the prime rate or the effective Federal funds rate); except as provided in subsection (b) or (c)(3), any LIBOR contract subject to subsection (c)(1) as to which a determining person does not elect to use a Board-selected benchmark replacement pursuant to that subsection; the application to a Board-selected benchmark replacement of any cap, floor, modifier, or spread adjustment to which LIBOR had been subject pursuant to the terms of a LIBOR contract; any provision of Federal consumer financial law that— requires creditors to notify borrowers regarding a change-in-terms; or governs the reevaluation of rate increases on credit card accounts under open-ended (not home-secured) consumer credit plans; or except as provided in section 5804(c) of this title , the rights or obligations of any person, or the authorities of any agency, under Federal consumer financial law, as defined in section 5481 of this title .

§ 5804 Continuity of contract and safe harbor

(a) In general A Board-selected benchmark replacement and the selection or use of a Board-selected benchmark replacement as a benchmark replacement under or with respect to a LIBOR contract, and any benchmark replacement conforming changes, shall constitute— a commercially reasonable replacement for and a commercially substantial equivalent to LIBOR; a reasonable, comparable, or analogous rate, index, or term for LIBOR; a replacement that is based on a methodology or information that is similar or comparable to LIBOR; substantial performance by any person of any right or obligation relating to or based on LIBOR; and a replacement that has historical fluctuations that are substantially similar to those of LIBOR for purposes of the Truth in Lending Act ( 15 U.S.C. 1601 note) 1 and regulations promulgated under that division. 2

(b) No impairment Neither the selection or use of a Board-selected benchmark replacement as a benchmark replacement nor the determination, implementation, or performance of benchmark replacement conforming changes under section 5803 of this title may— be deemed to impair or affect the right of any person to receive a payment, or to affect the amount or timing of such payment, under any LIBOR contract; or have the effect of— discharging or excusing performance under any LIBOR contract for any reason, claim, or defense (including any force majeure or other provision in any LIBOR contract); giving any person the right to unilaterally terminate or suspend performance under any LIBOR contract; constituting a breach of any LIBOR contract; or voiding or nullifying any LIBOR contract.

(c) Safe harbor No person shall be subject to any claim or cause of action in law or equity or request for equitable relief, or have liability for damages, arising out of— the selection or use of a Board-selected benchmark replacement; the implementation of benchmark replacement conforming changes; or with respect to a LIBOR contract that is not a consumer loan, the determination of benchmark replacement conforming changes, in each case after giving effect to the provisions of section 5803 of this title ; provided, however, that in each case any person (including a calculating person) shall remain subject to the terms of a LIBOR contract that are not affected by this chapter and any existing legal, regulatory, or contractual obligations to correct servicing or other ministerial errors under or with respect to a LIBOR contract.

(d) Selection The selection or use of a Board-selected benchmark replacement or the determination, implementation, or performance of benchmark replacement conforming changes under section 5803 of this title shall not be deemed to— be an amendment or modification of any LIBOR contract; or prejudice, impair, or affect the rights, interests, or obligations of any person under or with respect to any LIBOR contract.

(e) No negative inference Except as provided in subsections 3 (a), (b), or (c)(1) of section 5803 of this title , nothing in this chapter may be construed to create any negative inference or negative presumption regarding the validity or enforceability of— any benchmark replacement (including any method for calculating, determining, or implementing an adjustment to the benchmark replacement to account for any historical differences between LIBOR and the benchmark replacement) that is not a Board-selected benchmark replacement; or any changes, alterations, or modifications to or with respect to a LIBOR contract that are not benchmark replacement conforming changes.

§ 5805 Benchmark for loans

(a) Definitions In this section: The term “bank” means an institution subject to examination by a Federal financial institutions regulatory agency. The term “covered action” means— the initiation by a Federal supervisory agency of an enforcement action, including the issuance of a cease-and-desist order; or the issuance by a Federal supervisory agency of a matter requiring attention, a matter requiring immediate attention; or a matter requiring board attention resulting from a supervisory activity conducted by the Federal supervisory agency. The term “Federal financial institutions regulatory agencies” has the meaning given the term in section 3302 of this title . The term “Federal supervisory agency” means an agency listed in subparagraphs (A) through (H) of section 3401(7) of this title . The term “non-IBOR loan” means any loan that, by its terms, does not use in any way LIBOR, any tenor of non-U.S. dollar currency rates formerly known as the London interbank offered rate as administered by ICE Benchmark Administration Limited (or any predecessor or successor administrator thereof), and any other interbank offered rates that are expected to cease, as a benchmark.

(b) Benchmarks used by banks With respect to a benchmark used by a bank— the bank, in any non-IBOR loan made before, on, or after March 15, 2022 , may use any benchmark, including a benchmark that is not SOFR, that the bank determines to be appropriate for the funding model of the bank; the needs of the customers of the bank; and the products, risk profile, risk management capabilities, and operational capabilities of the bank; provided, however, that the use of any benchmark shall remain subject to the terms of the non-IBOR loan, and applicable law; and no Federal supervisory agency may take any covered action against the bank solely because that benchmark is not SOFR.

§ 5806 Preemption

This chapter, and regulations promulgated under this chapter, shall supersede any provision of any State or local law, statute, rule, regulation, or standard— relating to the selection or use of a benchmark replacement or related conforming changes; or expressly limiting the manner of calculating interest, including the compounding of interest, as that provision applies to the selection or use of a Board-selected benchmark replacement or benchmark replacement conforming changes. ( Pub. L. 117–103, div. U, § 107 , Mar. 15, 2022 , 136 Stat. 832 .)

§ 5807 Rulemaking

Not later than 180 days after March 15, 2022 , the Board shall promulgate regulations to carry out this chapter. ( Pub. L. 117–103, div. U, § 110 , Mar. 15, 2022 , 136 Stat. 834 .)