(a) Capital classifications after the effective date of section 1365 of the 1992 Act. The capital classification of an Enterprise for purposes of subpart B of this part is as follows:
(1) Adequately capitalized. Except as otherwise provided under paragraph (a)(5) of this section, an Enterprise will be classified as adequately capitalized if the Enterprise:
(i) As of the date specified in the notice of proposed capital classification, holds total capital equaling or exceeding the risk-based capital level; and
(ii) As of the date specified in the notice of proposed capital classification, holds core capital equaling or exceeding the minimum capital level.
(2) Undercapitalized. Except as otherwise provided under paragraph (a)(5) of this section or § 1777.23(c) or § 1777.23(h), an Enterprise will be classified as undercapitalized if the Enterprise:
(i) As of the date specified in the notice of proposed capital classification, holds total capital less than the risk-based capital level; and
(ii) As of the date specified in the notice of proposed capital classification, holds core capital equaling or exceeding the minimum capital level.
(3) Significantly undercapitalized. Except as otherwise provided under paragraph (a)(5) of this section or § 1777.23(c) or § 1777.23(h), an Enterprise will be classified as significantly undercapitalized if the Enterprise:
(i) As of the date specified in the notice of proposed capital classification, holds core capital less than the minimum capital level; and
(ii) As of the date specified in the notice of proposed capital classification, holds core capital equaling or exceeding the critical capital level.
(4) Critically undercapitalized. An Enterprise will be classified as critically undercapitalized if, as of the date specified in the notice of proposed capital classification, the Enterprise holds core capital less than the critical capital level.
(5) Discretionary reclassification - determination to reclassify. If OFHEO determines in writing that an Enterprise is engaging in action or inaction (including a failure to respond appropriately to changes in circumstances or unforeseen events) that could result in a rapid depletion of core capital, or that the value of property subject to mortgages held or securitized by the Enterprise has decreased significantly, or that reclassification is otherwise deemed necessary to ensure that the Enterprise holds adequate capital and operates safely, OFHEO may reclassify the Enterprise as:
(i) Undercapitalized if the Enterprise is otherwise classified as adequately capitalized;
(ii) Significantly undercapitalized if the Enterprise is otherwise classified as undercapitalized; or
(iii) Critically undercapitalized if the Enterprise is otherwise classified as significantly undercapitalized.
(b) Duration of reclassification; successive reclassifications.
(1) A reclassification of an Enterprise based on action, inaction, or conditions under paragraph (a)(5) or (c)(5) of this section shall be considered in the determination of each subsequent capital classification of the Enterprise, and shall only cease being considered in the determination of the Enterprise's capital classification after OFHEO determines that the action, inaction or condition upon which the reclassification was based has ceased or been eliminated and remedied to OFHEO's satisfaction.
(2) If the action, inaction, or condition upon which a reclassification was based under paragraph (a)(5) or (c)(5) of this section has not ceased or been eliminated and remedied to OFHEO's satisfaction within such reasonable time as is determined by OFHEO to be appropriate, OFHEO may consider such failure to be the basis for additional reclassification under such paragraph (a)(5) or (c)(5) of this section into a lower capital classification.
(c) Capital classifications before the effective date of section 1365 of the 1992 Act. Notwithstanding paragraph (a) of this section, until September 13, 2002, the capital classification of an Enterprise for purposes of subpart B of this part is as follows:
(1) Adequately capitalized. Except as otherwise provided in paragraph (c)(5) of this section, an Enterprise will be classified as adequately capitalized if the Enterprise, as of the date specified in the notice of proposed capital classification, holds core capital equaling or exceeding the minimum capital level.
(2) Undercapitalized. An Enterprise will be classified as undercapitalized if the Enterprise:
(i) As of the date specified in the notice of proposed capital classification, holds core capital equaling or exceeding the minimum capital level; and
(ii) Is reclassified as undercapitalized by OFHEO under paragraph (c)(5) of this section.
(3) Significantly undercapitalized. Except as otherwise provided under paragraph (c)(5) of this section or § 1777.23(c) or § 1777.23(h), an Enterprise will be classified as significantly undercapitalized if the Enterprise:
(i) As of the date specified in the notice of proposed capital classification, held core capital less than the minimum capital level; and
(ii) As of the date specified in the notice of proposed capital classification, held core capital equaling or exceeding the critical capital level.
(4) Critically undercapitalized. An Enterprise will be classified as critically undercapitalized if, as of the date specified in the notice of proposed capital classification, the Enterprise held core capital less than the critical capital level.
(5) Discretionary reclassification. If OFHEO determines in writing that an Enterprise is engaging in action or inaction (including a failure to respond appropriately to changes in circumstances or unforeseen events) that could result a rapid depletion of core capital, or that the value of the property subject to mortgages held or securitized by the Enterprise has decreased significantly or that reclassification is deemed necessary to ensure that the Enterprise holds adequate capital and operates safely, OFHEO may reclassify the Enterprise as:
(i) Undercapitalized if the Enterprise is otherwise classified as adequately capitalized:
(ii) Significantly undercapitalized if the Enterprise is otherwise classified as undercapitalized; or
(iii) Critically undercapitalized if the Enterprise is otherwise classified as significantly undercapitalized.
(d) Prior approvals. In making a determination to reclassify an Enterprise under paragraph (a)(5) or (c)(5) of this section, OFHEO will not base its decision to reclassify solely on action or inaction that previously was given specific approval by the Director of OFHEO in connection with the Director's approval of the Enterprise's capital restoration plan under section 1369C of the 1992 Act (12 U.S.C. 4622), or of a written agreement with the Enterprise that is enforceable in accordance with section 1371 of the 1992 Act.